Re: Posts On Republican Convention

[Paul Finkelman]

Snarky aside, students will be happy to know that if you use the same words as 
someone else, it is ok, cause no one "owns" those words.  It is now clear to me 
that Tom Lehrer is leading the Trump campaign
 Lobachevsky - Tom Lehrer
  
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Lobachevsky - Tom Lehrer
 This is Lobachevsky (Also known as Plagiarize)By Tom Lehrer Song: Lobachevsky 
Singer: Tom Lehrer Album: Songs by...  |   |

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**
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof 
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK  S7N 5A6   
canadapaul.finkel...@yahoo.com
c) 518.605.0296 (US number)


  From: "Graber, Mark" 
 To: Law & Religion issues for Law Academics  
 Sent: Tuesday, July 19, 2016 3:22 PM
 Subject: RE: Posts On Republican Convention
   
I take it that posts on the Republican Convention meets academic standards if 
at least 90% of the text is original. (snarky comment of the day)

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Friedman, Howard M. [howard.fried...@utoledo.edu]
Sent: Tuesday, July 19, 2016 3:14 PM
To: Law & Religion issues for Law Academics
Subject: Posts On Republican Convention

For those following the Republican Convention closely, I have a series of posts 
today on Religion Clause http://religionclause.blogspot.com/ setting out the 
text of Platform planks on issues of religious liberty and moral values, as 
well as a post listing all those offering invocations and benedictions at 
Convention sessions.

Howard Friedman
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Re: The Charlotte City Ordinance and Religious Freedom

[Paul Finkelman]

Anthony, thanks for this information.

This is great way to write legislation; no reason to investigate things like 
facts; or complicated medical issues, or even how to get a new birth 
certificate (and what states will not allow you do to do so). After all, if you 
now where you want to go, then why not just go there.  
 
**
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof 
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK  S7N 5A6   
canadapaul.finkel...@yahoo.com
c) 518.605.0296
andSeniorFellowDemocracy, Citizenship and Constitutionalism Program
Universityof Pennsylvania




CallSend SMSCall from mobileAdd to SkypeYou'll need Skype CreditFree via Skype

  From: Anthony Michael Kreis <kr...@uga.edu>
 To: Paul Finkelman <paul.finkel...@yahoo.com>; Law & Religion issues for Law 
Academics <religionlaw@lists.ucla.edu> 
Cc: Will Esser <willes...@yahoo.com>
 Sent: Thursday, March 31, 2016 9:59 PM
 Subject: Re: The Charlotte City Ordinance and Religious Freedom
   
The text of HB2 was released the morning the emergency session was called. It 
took all of 10 hours between the time of formal introduction and when the 
governor signed it. LGBT groups and individuals asked Gov. McCrory to meet with 
them before he took action on the bill. My understanding from folks on the 
ground is that those calls were met with silence. 

Sent from my iPhone
On Mar 31, 2016, at 9:49 PM, Paul Finkelman <paul.finkel...@yahoo.com> wrote:



Mark:
I agree with much of your post, and you and I may agree that the men in those 
pictures should use the men's room.  But unless those men have had their birth 
certificates changed, which as I pointed out, may be legally impossible, the 
state of North Carolina (and Mr. Esser) would in fact question their right to 
use the men's room, and as best I an tell, then can be prosecuted for doing so.
You write below:  "I don’t think Will was changing the subject. He was 
addressing a part of the subject to help provide context. His information helps 
to show that people on both sides of these issues can be clueless or 
insensitive or worse. I’m not sure that many of us knew about the Charlotte 
ordinance; I didn’t." But your later post shows that these arguments of Mr. 
Esser are clearly wrong about showers and other facilities.  And another post 
shows the Charlotte ordinance to be consistent with out laws around the 
country. 

I appreciate your desire to make a case for balancing here.  And listening to 
everyone's point of view.  But, as you noted in a later post, the Charlotte 
ordinance exempted showers -- the red herring argument that Mr. Esser made -- 
and is irrelevant to the North Carolina law.
Moreover, while the city of Charlotte may be listening to all points of view, 
it does not appear that North Carolina as a state is doing so.
Does anyone know if the legislature held hearings on this law, and invited 
representatives from the LGBT community?  Did they hear from Transmen and 
Transwomen? 

Did the legislature consider the evidence that transmen and women have a higher 
suicide rate than most other groups in the nation and face much more violence, 
in part because of discrimination?  Did the legislature look at the inability 
of transmen and transwomen (as well as others in the LGBT community) to find 
jobs and housing?
I don't know the answer here, but perhaps people in NC can help us out.

** Paul, I don’t think Will was changing the subject. He was 
addressing a part of the subject to help provide context. His information helps 
to show that people on both sides of these issues can be clueless or 
insensitive or worse. I’m not sure that many of us knew about the Charlotte 
ordinance; I didn’t. In California, the Boys Club organization was forced to 
become the Boys and Girls Club, because as a place of public accommodation it 
was prohibited from serving only boys. I don’t know what the case may be in 
North Carolina. In some facilities there are open showers, at least there used 
to be, and remodeling to make all showers and other facilities single-use may 
not be practicable. Many men’s rooms have urinals, of course, that are not 
enclosed. As people much wiser than I have pointed out, the making of an error 
in one direction does not mean that an error cannot be made in the other 
direction. It appears that the North Carolina legislature reacted badly to the 
actions of some extraordinarily “progressive” locals in Charlotte, who thought 
that separate men’s and women’s restrooms and shower facilities were a mark of 
benighted primitive prejudice.  It’s not quite clear to me how a place of 
public accommodation should decide who should be allowed to use men’s and 
women’s facilities. For the most part people will just be sensible and will use 
the facilities appropriately so as not to make others feel uncomfortable and so 
as not to violate others’ concerns ab

Re: Excluding religious institutions from public safety benefits

[Paul Finkelman]

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.
 
**
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof 
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK  S7N 5A6   
canadapaul.finkel...@yahoo.com
c) 518.605.0296
andSeniorFellowDemocracy, Citizenship and Constitutionalism Program
Universityof Pennsylvania




CallSend SMSCall from mobileAdd to SkypeYou'll need Skype CreditFree via Skype
 

  From: "Volokh, Eugene" 
 To: Law & Religion issues for Law Academics  
 Sent: Saturday, January 16, 2016 6:25 PM
 Subject: RE: Excluding religious institutions from public safety benefits
   
#yiv7323085659 #yiv7323085659 -- _filtered #yiv7323085659 {panose-1:2 4 5 3 5 4 
6 3 2 4;} _filtered #yiv7323085659 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 
3 2 4;}#yiv7323085659 #yiv7323085659 p.yiv7323085659MsoNormal, #yiv7323085659 
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none;}#yiv7323085659 .yiv7323085659MsoChpDefault {} _filtered #yiv7323085659 
{margin:1.0in 1.0in 1.0in 1.0in;}#yiv7323085659 div.yiv7323085659WordSection1 
{}#yiv7323085659    I’m not sure how upgrading the playground will 
make it materially more usable as space for worship and religious instruction.  
Few institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaceswhen using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.    And a building that’s more earthquake safe, 
or that has asbestos removed, or that has a security guard, or lacks dangerous 
mosquitoes outside, actually is slightly more attractive as space for worship 
and religious instruction:  Some people might be more willing to send their 
kids to a school or a church that’s earthquake-safe, asbestos-remediated, 
mosquito-free, or well-guarded than to a church or school that seems dangerous. 
 The effect won’t be vast, but again it’s not like the extra benefit of a 
rubberized surface for worship and religious instruction is vast, either.    
Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surelywill be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?    Eugene    Chip writes:    From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits    
Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:    1.  Eugene's examples all involve health and safety. None can be 
diverted to religious use; all make religious use, and all other uses of the 
property, healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to 
schools, public and private, in poor areas.  The aid included things like 
computers, books, AV equipment, etc.  Plurality said that neutral 
distributional criteria (public and private schools, no sectarian 
discrimination) is all you need.  Dissent said divertibility of aid to 
religious use is fatal.  Controlling opinion, SOC-SB, said the Establishment 
Clause concern is actual diversion, not divertibility, so the program is OK 
because it contains adequate (and non-entangling) safeguards against religious 
use. That is the Establishment Clause right now.    Trinity Lutheran Church 
seems to me to fall between Eugene's examples and Mitchell.  The playground 
will be safer 

Re: What's happening in the Kim Davis case

[Paul Finkelman]

I agree with Roberta that generally it is not "necessarily a wise route to 
investigate her good or bad faith in these types of matters."  However, I think 
is is also important to have some legal realism here.  

Davis's arguments seem to be in flux and in motion because I think it is quite 
clear that she does not want any accommodation.  As others have pointed out, 
her County does not have a religion but she thinks it does and the county 
itself can get an exemption from the U.S. Constitution.  Would anyone accept 
this as a plausible theory of law?  Or as an example of someone acting in good 
faith.   

That she made such arguments suggests that her goal is not merely to personally 
remove herself from the process (which she could do), but to prevent people 
from obtaining their constitutional rights in her county.  This is not acting 
in good faith and I think it is reasonable, as academics, for us to consider 
motive and goals.  We judge political figures all the time on the basis of 
their motives and good or bad faith.  She is a political actor, an elected 
official, and her actions speak to that.  

George Wallace lost his first bid to be governor because he was seen as too 
moderate on race.  He allegedly said he would never be "out Niggered" again, 
and its pretty clear he achieved that goal during most of the rest of his 
Alabama career (although late in life is moderated a little).  No scholars I 
know of think he acted in good faith while attempted to prevent integration in 
the face of court orders.   

Do we somehow elevate Ms. Davis's standing into courthouse door (or court 
clerk's door) as more appropriate than George Wallace or Ross Barnett, because 
she cloaks her refusal to give people their constitutional rights by claiming a 
religious right to utterly prevent marriages from taking place.
As far as I can tell, everyone on this list agrees that 1) the licenses can be 
issued by someone else; 2) she does not have to issue them; 3) that she only 
has to step aside to let the people of her county obtain their constitutional 
rights.  

That she has done none of these things suggests bad faith.  
 
******
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
Scholars Advisory Panel 
National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: "Kwall, Roberta" <rkw...@depaul.edu>
 To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> 
 Sent: Sunday, September 13, 2015 8:20 AM
 Subject: RE: What's happening in the Kim Davis case
   
#yiv5707408652 #yiv5707408652 _filtered #yiv5707408652 {font-family:Calibri;} 
_filtered #yiv5707408652 {font-family:Tahoma;}#yiv5707408652 
p.yiv5707408652MsoNormal, #yiv5707408652 li.yiv5707408652MsoNormal, 
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.yiv5707408652MsoChpDefault {} _filtered #yiv5707408652 {margin:1.0in 1.0in 
1.0in 1.0in;}#yiv5707408652 The first paragraph of Paul's post about whether we 
should entertain the possibility of bad faith on the part of Kim Davis (given 
her past)  particularly caught my eye. It made me think of  Jews who can be 
described as  "Baal Tshuvot" (this term refers to those that were born Jewish 
but who "return" to the faith at some point in their lives). There is a 
phenomenon that often occurs with these Jews (and sometimes with those who 
convert especially under more traditional authorities) in which they become 
super-strict with all the rules and follow everything to what they understand 
to be the letter of the law.  Part of the issue here is that they lack growing 
up in an observant climate in which they get a "feel" for how things operate in 
practice and part of the issue is that they lack the years of education to make 
judgments on applying the law to their everyday lives.
 I had also heard that Kim Davis is relatively new to her faith and 
perhaps--just perhaps--she is interpreting what she thinks is required of her 
stringently because she thinks she must do so in order to "make heaven her 
permanent home"--the quote is something I had read she said as to her reason.
But either way, I don't think it is necessarily a wise

Re: Kim Davis released, given that her Deputies are issuing licenses BUT ARE THEY VALID?

[Paul Finkelman]

I had dinner tonight in Morehead, KY.  with one of the parties to this case.  
She and her husband-to-be had made wedding plans (caterer, party, etc) only  to 
be denied a license.  She was subsequently given one without the signature of 
the clerk, but does not believe (and her lawyers apparently do not believe) 
that under Kentucky law she can get married with this license because it lacks 
the proper signature.  This is an interesting theoretical question for those on 
this list serve, it is a real life question for this couple that would like to 
be married.  

Kim Davis's idea of preserving "traditional marriage"  seems to be to prevent 
all traditional marriages by prevent loving couples from being married.  This 
seems to me like the counties in Virginia that preserved "traditional 
segregated schools" by closing the public schools.  

Word in Morehead is that tomorrow Kim Davis will order her clerks not to give 
out licenses to anyone.  


******
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
Scholars Advisory Panel 
National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Marty Lederman <lederman.ma...@gmail.com>
 To: "Volokh, Eugene" <vol...@law.ucla.edu>; "Dellinger, Walter" 
<wdellin...@omm.com>; Douglas Laycock <dlayc...@virginia.edu>; Howard Wasserman 
<wasse...@fiu.edu>; "conlawp...@lists.ucla.edu" <conlawp...@lists.ucla.edu>; 
Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Michael 
Dorf <miked...@gmail.com> 
 Sent: Tuesday, September 8, 2015 1:06 PM
 Subject: Kim Davis released, given that her Deputies are issuing licenses
   
Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."
http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html



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Re: What's happening in KY?

[Paul Finkelman]

For what it is worth NPR says that she could be in jail -- or in and out of 
jail -- for most of the next three+ years, since she was only elected recently. 
 This report seemed to imply that the Judge would keep sending her back to jail 
(or keep her in jail) until she agreed to issue licenses or I suppose resigned. 
 
 
For what it is worth, the Judge (appointed by Bush) is the son of the former 
Senator (and more importantly Baseball Hall of Fame pitcher Jim Bunning),
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
Scholars Advisory Panel 
National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Marty Lederman <lederman.ma...@gmail.com>
 To: "Cohen,David" <ds...@drexel.edu>; Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu> 
Cc: ConLaw LIst Prof <conlawp...@lists.ucla.edu> 
 Sent: Thursday, September 3, 2015 5:49 PM
 Subject: What's happening in KY?
   
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 <ds...@drexel.edu> 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. 
CohenProfessor of Law
Thomas R. Kline School of LawDrexel University3320 Market St.Philadelphia, PA 
19104Tel: 215.571.4714drexel.edu | facebook |twitterAvailable NOW:Living in the 
Crosshairs: The Untold Stories of Anti-Abortion Terrorism (Oxford) 
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Re: Question about the Kentucky County Clerk controversy

[Paul Finkelman]

But this is not an attempt to accommodate by someone else doing it. She refuses 
to issue any marriage licenses and has not delegated anyone else in the office 
to do it.  This is not like a religious cop who won't work on (pick the holy 
day).  And Your solution apparently would require a change in KY law, since as 
someone else noted, the law *requires* her name on it.  
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
Scholars Advisory Panel 
National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: "Volokh, Eugene" <vol...@law.ucla.edu>
 To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> 
 Sent: Thursday, September 3, 2015 12:13 AM
 Subject: RE: Question about the Kentucky County Clerk controversy
   
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{}#yiv3619058084    Well, Title VII’s reasonable accommodation does 
allow people to hold jobs (government or otherwise) knowing that they will not 
in fact do all parts of the job, so long as the employer can accommodate them 
without undue hardship (e.g., by some sort of swap of duties).  This could be 
because they can’t do all the temporal parts of the job (“I can’t be on the job 
Friday nights after sundown”) or it could be because they can’t do all the 
subject-matter parts of the job (“I can’t process draft registration 
materials”).  The cases I cited so say, it seems to me.       It 
also seems to me that RFRA’s strict scrutiny mandate, as applied to government 
employees, is at least as demanding as Title VII’s religious accommodation 
mandate.  It may be more demanding, if we take strict scrutiny seriously, or it 
may be about as demanding, but I doubt it would be less demanding.  If a 
religious objection can be accommodated without undue hardship, it’s hard to 
see how denying the accommodation is narrowly tailored to a compelling 
government interest.       Then the only question is whether 
there’s a different RFRA rule for elected officials than for ordinary 
government employees.  (There is a different Title VII rule, but that’s just 
because of a statutory exclusion of religious officials.)  I would think not.  
So if that’s so, then it seems to me that the Kentucky County Clerk could 
indeed get a Kentucky RFRA exemption from the requirement that she distribute 
marriage license/certificate materials with her name listed (though that’s not 
something she can get in the defense of her federal lawsuit, but would require 
a separate suit under state law).       As to the USDA inspector 
hypothetical, accommodating that religious objection would indeed be very 
burdensome from the government.  But say that there’s a particular meat 
processor that only ships meat on Saturdays, and this USDA inspector refuses to 
co

Re: Ireland

[Paul Finkelman]

Dear Mr. Worley:
Your claim that pastors can do what they want is a non-starter.  We all know 
they can do that now, but it is the law that creates and protects the 
relationships of marriage in a complex society that is important.  

If the law does not validate the marriage then one spouse cannot visit another 
in hospital, there is no spousal immunity in court, child custody and child 
rearing issues are uncertain, and a wrongful death suit for the death of one 
spouse would not be possible.  These are just some obvious ways which married 
gay people are denied the rights the rest of us have.  

I agree that I will probably not convince you of anything, but at the same 
time, it is important not to ignore the intellectual sleight of hand you try to 
pass off by saying you support the right of pastors to do what they want.

I would love to know how the vicious persecution of LDS in the 19th century is 
different from the persecution of gay people.   The main persecution was based 
on marriage choice, and all the federal laws focused on that.  The US was so 
obsessed with LDS marriage practices -- plural marriage, polygamy -- that the 
Supreme  Court upheld prosecutions for mere belief rather than practice. 
Mormons were tossed in jail before harvest time so they could get their crops 
in.  Federal officials stormed into bedrooms in the night to catch polygamists. 
 [look at Firmage and Mangrum, Zion in the Courts] Yet for all of the state and 
federal persecutions of Mormonst, probably more gay people have been murdered 
than Mormons because of their marital and love relations.   You would honor the 
persecuted LDS adherents of the 19th century by opposing marriage persecution 
or laws today try to force religious values on others. 

The difference here is that I believe persecution is wrong and that consenting 
adults should be able to arrange their families as they wish (subject to the 
usual caveats of protecting children and spouses from violence, abuse, etc.) 
and have the same legal protections as other married people.   That would true 
for Brigham Young with his many wive and 57 children or my gay friends who are 
married and raising their two children.  You, however, would deny my friends 
the right to raise their children and protect their union with the law.  

Put another way, you would use the power of the law to compel people to follow 
your view of marriage -- or at least to prevent them from having the 
protections of the law which I have in my marriage (and if you are married you 
have in yours).  

You would deny basic rights to people with whom you disagree.  I prefer 
liberty, even for practices I would not personally want to engage in. 
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Michael Worley mwor...@byulaw.net
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Saturday, May 23, 2015 10:04 PM
 Subject: Re: Ireland
   
Professor Finkleman:

We disagree on many fundamental levels, and this is an emotional thing for us 
both.

You raise complex and interesting questions, but I have increasingly found it 
is hard to change minds on this issue, and lengthy debates only tend to 
polarize because of different assumptions a variety of people have on the role 
of marriage, and the emphasis placed on various societal goods.

I think many of the most prestigious, well-educated, careful lawyers in the 
country agree with you, and equally prestigious, well-educated and careful 
lawyers agree with me. I know there are several lawyers who have ascended to 
the highest legal circles, have family members who are members of the LGBT 
community, perhaps even attend same-sex weddings and yet have written in 
support of my view.

Because of these complexities, I do not respond to your arguments in full. I 
merely note that the persecution of the Mormon faith you note is 
distinguishable.  I, for one, think pastors have a constitutional right to 
marry any person they want, so long as the law isn't required to validate that 
marriage.

Thank you,
Michael


On Sat, May 23, 2015 at 7:15 PM, Finkelman, Paul paul.finkel...@albanylaw.edu 
wrote:



Dear Michael:
when children have children it is a bad thing. That is true whether they are 
married or merely very young and forced into marriages. 

But out-of-Wedlock births is a very broad category. 

When my adult gay friends had children, twelve years ago, they could not be 
legally married because our legal system would not sanction their commitment to 
each other, their love, or their respect of the institution of marriage.  Some 
fifteen years ago they had a wedding, performed by a bona fide member of the 
clergy, who was legally permitted

Re: law suit on behalf of Jesus

[Paul Finkelman]

Senator Ernie  Chambers -- from March v. Chambers, has apparently responded by 
suing G-d for creating natural disasters.  
 State Sen. Ernie Chambers Sues God
|   |
|   |  |   |   |   |   |   |
| State Sen. Ernie Chambers Sues GodDiscuss |
|  |
| View on www.ketv.com | Preview by Yahoo |
|  |
|   |

  
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Conkle, Daniel O. con...@indiana.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Wednesday, May 6, 2015 9:01 AM
 Subject: RE: law suit on behalf of Jesus
   
#yiv8252633939 #yiv8252633939 -- _filtered #yiv8252633939 
{font-family:Helvetica;panose-1:2 11 6 4 2 2 2 2 2 4;} _filtered #yiv8252633939 
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{font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;}#yiv8252633939 
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span.yiv8252633939MsoHyperlinkFollowed 
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p.yiv8252633939MsoAcetate, #yiv8252633939 li.yiv8252633939MsoAcetate, 
#yiv8252633939 div.yiv8252633939MsoAcetate 
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{margin:1.0in 1.0in 1.0in 1.0in;}#yiv8252633939 div.yiv8252633939WordSection1 
{}#yiv8252633939 Cf. United States ex rel. Mayo v. Satan and His Staff, 54 
F.R.D. 282 (W.D.Pa. 1971) - dismissed on procedural grounds, with court citing 
personal jurisdiction and service of process difficulties.      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.edu 
          

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Len
Sent: Wednesday, May 06, 2015 5:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: law suit on behalf of Jesus    Please pardon the intrusion.  
Apparently the filing is real:    
http://dockets.justia.com/docket/nebraska/nedce/8:2015cv00158/69317    I hope 
Judge Gerrard isn't too hard on her when he tosses it.          -Leonard A. 
Zanger    From:Paul Finkelman paul.finkel...@albanylaw.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Wednesday, May 6, 2015 12:11:32 AM
Subject: law suit on behalf of Jesus    Someone just send me this; it seems 
like it might be real, but does anyone know?  Can the plaintiff bring the suit 
on behalf of Jesus or G-d without a power of attorney signed by one or both?    
   
http://www.thenewcivilrightsmovement.com/davidbadash/nebraska_woman_sues_all_homosexuals_in_federal_court_because_jesus_literally
 
   *
Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and 
Constitutionalism University of Pennsylvania and Scholar-in-Residence  National 
Constitution Center Philadelphia, Pennsylvania   518-439-7296 (p) 518-605-0296 
(c)   paul.finkel...@albanylaw.edu www.paulfinkelman.com 
*


 
   
   
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Re: Businesses don't really want to be free

[Paul Finkelman]

Sandy's point held true for race discrimination.  Many businesses easily 
integrated when they were told they had to do so, and without much fuss.  Many 
probably were happy to have more business and to no longer have to be bothered 
by segregation rules (which made things expensive).    Equality, in other 
words, is good for business.  
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Levinson, Sanford V slevin...@law.utexas.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Wednesday, April 8, 2015 10:53 PM
 Subject: Businesses don't really want to be free
   
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: Amazing what Hobby Lobby has wrought

[Paul Finkelman]

We have all sorts of stories where business will not serve Muslims in the news.
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Doug Laycock dlayc...@virginia.edu
 To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu 
 Sent: Friday, March 27, 2015 2:54 PM
 Subject: RE: Amazing what Hobby Lobby has wrought
   
#yiv7506987746 #yiv7506987746 -- _filtered #yiv7506987746 {panose-1:2 4 5 3 5 4 
6 3 2 4;} _filtered #yiv7506987746 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 
3 2 4;} _filtered #yiv7506987746 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 
2 4;}#yiv7506987746 #yiv7506987746 p.yiv7506987746MsoNormal, #yiv7506987746 
li.yiv7506987746MsoNormal, #yiv7506987746 div.yiv7506987746MsoNormal 
{margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv7506987746 a:link, 
#yiv7506987746 span.yiv7506987746MsoHyperlink 
{color:blue;text-decoration:underline;}#yiv7506987746 a:visited, #yiv7506987746 
span.yiv7506987746MsoHyperlinkFollowed 
{color:purple;text-decoration:underline;}#yiv7506987746 
span.yiv7506987746EmailStyle17 {color:#1F497D;}#yiv7506987746 
.yiv7506987746MsoChpDefault {font-size:10.0pt;} _filtered #yiv7506987746 
{margin:1.0in 1.0in 1.0in 1.0in;}#yiv7506987746 div.yiv7506987746WordSection1 
{}#yiv7506987746 Show me a case. It just hasn’t happened. We have a woman dead 
in Kansas for lack of a state RFRA; that’s a real case. These wild 
discrimination hypotheticals are so far just that – wild hypotheticals. And 
probably that’s all they will be for the future too.  Discrimination against 
gay customers is entirely legal in Indiana except in Indianapolis and 
Bloomington. That doesn’t mean that it’s happening, much less that businesses 
are discriminating and then offering religious justifications. The various 
Indiana reporters who have called me had not heard any reports of that kind of 
discrimination.  Douglas LaycockRobert E. Scott Distinguished Professor of 
LawUniversity of Virginia Law School580 Massie RoadCharlottesville, VA  22903   
  434-243-8546  

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, March 27, 2015 2:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought  But does this mean that 
religion is not protected?   Will we see claims that members of certain faiths 
do not want to hire (or even serve) members of other faiths?  I think the 
language of the Indiana law and some of these other laws might allow this.     
*
Paul FinkelmanSenior FellowPenn Program on Democracy, Citizenship, and 
ConstitutionalismUniversity of PennsylvaniaandScholar-in-Residence National 
Constitution CenterPhiladelphia, Pennsylvania 518-439-7296 (p)518-605-0296 (c) 
paul.finkel...@albanylaw.eduwww.paulfinkelman.com*From:
 religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on 
behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, March 27, 2015 2:34 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wroughtor, imagine if Justice Alito 
had not included the references to race and racial in this sentence:   The 
Government has a compelling interest in providing an equal opportunity to 
participate in the workforce without regard to race, and prohibitions on racial 
discrimination are precisely tailored to achieve that critical goal.  On Fri, 
Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote:
Before the ruling -- but not before the lower court decisions and the slew of 
briefs --including by many Catholic groups that were insistent upon reading 
RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did 
(indeed, more so).   The converse point works, too:  If the Court had issued a 
Lee-like 9-0 decision, there wouldn't now be much of an opposition to state 
RFRAs (but not nearly the same impetus to enact them, either).  On Fri, Mar 27, 
2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote:
The reaction to Indiana strikes me as similar to Arizona. Arizona took place 
well before Hobby Lobby ruling. So the causal relationship you suggest here 
seems off.  Something else explains this.   On Fri, Mar 27, 2015 at 1:41 PM, 
Marty Lederman lederman.ma...@gmail.com wrote:
http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill
  If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't

Re: Wedding photographers as creators of art

[Paul Finkelman]

I did not know that; thank you.  Mea culpa.  
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Scarberry, Mark mark.scarbe...@pepperdine.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Sunday, February 15, 2015 2:18 AM
 Subject: Wedding photographers as creators of art
   
In response to Paul:
Elaine Huguenin's cert petition says that artistic expression pervades her 
work.
She also says that her work is expressive photojournalism that tells a story. 
More later, perhaps, but I couldn't leave your claim unanswered that she didn't 
claim to be an artist. She engages in creative artistic expression. She does 
not run a photobooth. She is not an auto mechanic. She does not sell product. 
She creates artistic expression that tells a story.
It is profoundly illiberal to require someone to engage in expression contrary 
to conscience, and even worse to require them to create a state-mandated 
message that tells a story they do not wish to tell.
Mark
Mark S. ScarberryPepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

 Original message From: Paul Finkelman Date:02/14/2015 6:43 PM 
(GMT-08:00) To: Law  Religion issues for Law Academics Subject: Re: Can 
someone be legally obligated to have sex with people she's unwilling to have 
sex with? 
Mark:
I think there might be a difference, in terms of commercial activity between 
the artistic photographer, who shoots and sells photos and the commercial 
photographer who advertises that he does weddings, confirmations, family 
portraits etc.  One is essentially an artist, who sometimes takes a commission. 
 I agree with you that an artists can refuse a commission, just like we can 
refuse to write a book when a publisher asks us to. 

But, if our business is open to all, then it has to be open to all.  The person 
photographs people is no different than an auto mechanic or a dentist.  The 
other has an open business that anyone can walk in off the street and use.  
Similarly, while we can decline to write a book, if our class is open to all 
students, we cannot refuse to let some in on the grounds that we oppose their 
beliefs, faith, color, life style etc.
And, if you can discriminate on the basis of gender then you presumably can for 
race or religion. 

None of the people who have refused to sell their product to gay people are 
arguing they are artists.  They are business owners who sell to the general 
public.  Except when they don't like the general public!

And, if you rent out your theater or lecture hall, you do it for all comers if 
that is your business. 

To take your hypo further, Mark.  If you have a photography studio and you are 
an animal rights person, can you refuse to  photograph the two hunters who come 
in to get their pictures taken in their hunting clothes?  And if some state 
requires a photo for a fishing or hunting license, can that person refuse to 
take the picture?
We can spin hypos all day.  We are trained to that.  The bottom line is this:  
do we allow businesses to discriminate on the basis of race, gender, or 
religion?  If we do, then we might as well repeal the 1964 Civil Rights Act, 
and allow private discrimination across the board; no more black people in your 
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever 
you don't like. 

Is that where you want to go?  
**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and 
Scholar-in-Residence  
National Constitution Center 
Philadelphia, Pennsylvania 
518-439-7296 (w)
518-605-0296 (c) 
paul.finkel...@yahoo.com 
www.paulfinkelman.com



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Re: Wedding photographers as creators of art

[Paul Finkelman]

Mark:  would you defend her position if she refused to photograph an integrated 
marriage?  Or  Hindu wedding?  Does she have an absolute right to refuse to 
work for people on the bases of race, religion, or gender?
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Scarberry, Mark mark.scarbe...@pepperdine.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Sunday, February 15, 2015 2:18 AM
 Subject: Wedding photographers as creators of art
   
In response to Paul:
Elaine Huguenin's cert petition says that artistic expression pervades her 
work.
She also says that her work is expressive photojournalism that tells a story. 
More later, perhaps, but I couldn't leave your claim unanswered that she didn't 
claim to be an artist. She engages in creative artistic expression. She does 
not run a photobooth. She is not an auto mechanic. She does not sell product. 
She creates artistic expression that tells a story.
It is profoundly illiberal to require someone to engage in expression contrary 
to conscience, and even worse to require them to create a state-mandated 
message that tells a story they do not wish to tell.
Mark
Mark S. ScarberryPepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

 Original message From: Paul Finkelman Date:02/14/2015 6:43 PM 
(GMT-08:00) To: Law  Religion issues for Law Academics Subject: Re: Can 
someone be legally obligated to have sex with people she's unwilling to have 
sex with? 
Mark:
I think there might be a difference, in terms of commercial activity between 
the artistic photographer, who shoots and sells photos and the commercial 
photographer who advertises that he does weddings, confirmations, family 
portraits etc.  One is essentially an artist, who sometimes takes a commission. 
 I agree with you that an artists can refuse a commission, just like we can 
refuse to write a book when a publisher asks us to. 

But, if our business is open to all, then it has to be open to all.  The person 
photographs people is no different than an auto mechanic or a dentist.  The 
other has an open business that anyone can walk in off the street and use.  
Similarly, while we can decline to write a book, if our class is open to all 
students, we cannot refuse to let some in on the grounds that we oppose their 
beliefs, faith, color, life style etc.
And, if you can discriminate on the basis of gender then you presumably can for 
race or religion. 

None of the people who have refused to sell their product to gay people are 
arguing they are artists.  They are business owners who sell to the general 
public.  Except when they don't like the general public!

And, if you rent out your theater or lecture hall, you do it for all comers if 
that is your business. 

To take your hypo further, Mark.  If you have a photography studio and you are 
an animal rights person, can you refuse to  photograph the two hunters who come 
in to get their pictures taken in their hunting clothes?  And if some state 
requires a photo for a fishing or hunting license, can that person refuse to 
take the picture?
We can spin hypos all day.  We are trained to that.  The bottom line is this:  
do we allow businesses to discriminate on the basis of race, gender, or 
religion?  If we do, then we might as well repeal the 1964 Civil Rights Act, 
and allow private discrimination across the board; no more black people in your 
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever 
you don't like. 

Is that where you want to go?  
**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and 
Scholar-in-Residence  
National Constitution Center 
Philadelphia, Pennsylvania 
518-439-7296 (w)
518-605-0296 (c) 
paul.finkel...@yahoo.com 
www.paulfinkelman.com



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Anyone can subscribe

Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with?

[Paul Finkelman]

Mark:
I think there might be a difference, in terms of commercial activity between 
the artistic photographer, who shoots and sells photos and the commercial 
photographer who advertises that he does weddings, confirmations, family 
portraits etc.  One is essentially an artist, who sometimes takes a commission. 
 I agree with you that an artists can refuse a commission, just like we can 
refuse to write a book when a publisher asks us to.  

But, if our business is open to all, then it has to be open to all.  The person 
photographs people is no different than an auto mechanic or a dentist.  The 
other has an open business that anyone can walk in off the street and use.  
Similarly, while we can decline to write a book, if our class is open to all 
students, we cannot refuse to let some in on the grounds that we oppose their 
beliefs, faith, color, life style etc.
And, if you can discriminate on the basis of gender then you presumably can for 
race or religion.  

None of the people who have refused to sell their product to gay people are 
arguing they are artists.  They are business owners who sell to the general 
public.  Except when they don't like the general public!

And, if you rent out your theater or lecture hall, you do it for all comers if 
that is your business.  

To take your hypo further, Mark.  If you have a photography studio and you are 
an animal rights person, can you refuse to  photograph the two hunters who come 
in to get their pictures taken in their hunting clothes?  And if some state 
requires a photo for a fishing or hunting license, can that person refuse to 
take the picture?
We can spin hypos all day.  We are trained to that.  The bottom line is this:  
do we allow businesses to discriminate on the basis of race, gender, or 
religion?  If we do, then we might as well repeal the 1964 Civil Rights Act, 
and allow private discrimination across the board; no more black people in your 
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever 
you don't like.  

Is that where you want to go?   
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: Scarberry, Mark mark.scarbe...@pepperdine.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 Sent: Saturday, February 14, 2015 3:36 PM
 Subject: RE: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?
   
#yiv8338140651 #yiv8338140651 -- _filtered #yiv8338140651 
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p.yiv8338140651MsoAcetate, #yiv8338140651 li.yiv8338140651MsoAcetate, 
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span.yiv8338140651EmailStyle19 {color:#1F497D;}#yiv8338140651 
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{margin:1.0in 1.0in 1.0in 1.0in;}#yiv8338140651 div.yiv8338140651WordSection1 
{}#yiv8338140651 And with apologies for responding to my own post a second 
time: The cases are not distinguishable unless religious conscience is entitled 
to special protection, which would make the case for the religiously motivated 
photographer stronger.  Mark  Mark S. ScarberryProfessor of LawPepperdine Univ. 
School of Law      

From: Scarberry, Mark 
Sent: Saturday, February 14, 2015 12:03 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?  It should go without saying (but I will say it) 
that I am in no way suggesting that same-sex marriage is like the Holodomor or 
the fire-bombing of Dresden, except to say that the cases are not 
distinguishable as a matter of constitutional law.   The environmentalist 
photographer example is not so different, even setting aside legal analysis.  
Mark  Mark S. ScarberryProfessor of LawPepperdine Univ. School of Law      
From: Scarberry, Mark 
Sent: Saturday, February 14, 2015 11:58 AM
To: Law  Religion issues for Law Academics
Subject: RE: Can

Re: [Ipprofs] Souix Falls Jesus Christ snow plows f

[Paul Finkelman]

So what.   The establishment clause is only worried about the state 
evangelizing 

Sent from Yahoo Mail on Androidat

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lecture

[Paul Finkelman]

Obviously yes, and yes.  How could it be otherwise.  If it is no or no and 
no, then we have lost all ability to have free intellectual inquiry.  It would 
not be proper (I am not sure if it would be constitutional) for either to 
proselytize and it would certainly be improper to grad on religious belief.

Indeed, its strikes me that this would be a great setting for a team taught 
interdisciplinary course. 


The only question is whether they teach theology at the university.  Some 
state universities don't even teach religion (or at least they used to now 
teach it.

Paul Finkelman
Scholar-in-Residence
National Constitution Center




 From: Marc Stern ste...@ajc.org
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu; Law  Religion 
issues for Law Academics religionlaw@lists.ucla.edu; 
religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu 
Sent: Sunday, September 28, 2014 5:24 PM
Subject: 
 




Today's NY Times Review section has an article by a professor of evolutionary 
biology at a public university describing a lecture he gives annually 
explaining how that body of science ‎ has undermined central claims of 
religious traditions.  

Is it constitutional for him to give this lecture? Would it be constitutional 
for a professor of theology at the same university to offer a rebuttal in 
religious terms?

Marc
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Rick Garnett
Sent: Friday, September 26, 2014 10:43 AM
To: Law  Religion issues for Law Academics
Reply To: Law  Religion issues for Law Academics
Subject: Re: GW National Religious Freedom Moot Court Competition 

Dear Chip, 

Thanks for this.  I'm hoping that Notre Dame will send a team again.  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.edu
 
To download my scholarly papers, please visit my SSRN page
 
Blogs:
 
Prawfsblawg
Mirror of Justice
 
Twitter:  @RickGarnett

On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu icl...@law.gwu.edu wrote:

George Washington University will once again host the National Religious 
Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. 
The registration period is open from now until Nov. 15, 2014.  The problem will 
be released on Nov. 17, 2014.  The competition will be held at GW on 
Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of conscience 
raised by teachers against a hypothetical law in Washington, D.C. that requires 
teachers and administrators to carry firearms on public school property during 
school hours.  More information here: http://www.religionmootcourt.org/  
(Ignore the Feb, 2014 dates at the top of the website).

-- 

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: Is Discussion of Justices' Religion Off Limits?

[Paul Finkelman]

Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?




 From: Levinson, Sanford V slevin...@law.utexas.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc: CONLAWPROF conlawp...@lists.ucla.edu 
Sent: Friday, July 11, 2014 3:02 PM
Subject: Re: Is Discussion of Justices' Religion Off Limits?
 



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.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.edu
www.paulfinkelman.com
*




 
From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Richard Friedman [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.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

Re: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.?

[Paul Finkelman]

What's at stake is the basic civil rights for millions of American who are 
fired, or never hired, for what they do in private and what they do outside the 
workplace. 


These are not much different than the arguments in the 1950s and 1960s that 
integration violated God's laws.  Bob Jones University is best known only 
because it ended up in the Supreme Court, but these arguments were made quite 
frequently.  


The comment about the movies I suppose would be this:  Hollywood makes stupid 
movies about stupid things all the time.  Hollywood makes movies about 
unimportant things all the time.  So isn't the issue this:  if you only 
criticize movies that deal with gay issues, and you do it as a kind of 
harassment -- as opposed to a serious discussion of movies --  and you do it in 
front of colleagues you know are gay only to annoy them or harass them -- then 
perhaps it is harassment.  If you discuss movies at work all the time, then it 
might not be.

It strikes me as religious discrimination to assume that people who are 
religiously hostile to people because they are gay would necessarily 
discriminate against them.  But, it would also be discrimination if someone is 
fired because the boss believes being gay is sinful.  

Since Christians believe that we are sinners, if the devout person fires 
someone for being gay or transgender (they are very different things) isn't 
that discrimination because they haven't fired all the other sinners, including 
themselves.


Mark, you seem to be arguing that people can use religion to discriminate 
against anyone who they think is immoral.  How far are you going to take that?

Paul Finkelman



 From: Scarberry, Mark mark.scarbe...@pepperdine.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 9, 2014 1:20 PM
Subject: RE: What's at stake in the debate over the forthcoming LGBT
nondiscrimination E.O.?
 


Perhaps an initial question is the scope of the proposed regulations. The 
government has pushed “harassment” and “hostile work environment” definitions 
pretty hard. If a manager of a religiously-affiliated charity that had a 
federal contract to provide social services, let’s say food for the homeless, 
openly expressed the view that same-sex sexual conduct is immoral, could that 
be the basis for suit, or perhaps, in this context, for denial of a government 
contract? (One online anti-harassment training program – that employees of a 
religiously-affiliated institution in California were required to take – 
included a suggestion that an employee should be reported to the equal 
opportunity officer if he or she made a mildly disparaging comment about the 
movie Brokeback Mountain – “The studios should make movies about more important 
issues.”)
 
A more important question is the extent of the requested exemptions. It appears 
that the requested exemptions would be limited to faith-based organizations. 
See the excerpt from the NY Times story set out below my signature line. The NY 
Times story’s reference to Hobby Lobby seems out of place and perhaps 
misleading. Here is a link to the letter: 
http://apps.washingtonpost.com/g/documents/local/letter-to-obama-from-faith-leaders/1072/.
 According to the letter, the requested exemptions are “comparable” to the 
exemptions included in the version of ENDA that passed the Senate.
 
Even with regard to for-profit companies: If a gay employee was discharged, 
would the religious views of the employer or of a supervisor be admissible as 
evidence tending to show bias as a motivation for the discharge? I’m not sure 
what the law is in other anti-discrimination contexts; would membership in a 
religious group that thought women should not work outside the home be 
admissible in a suit for sex discrimination in employment? Is there a 
practicable and fair way to exclude evidence of such religious views or 
religious expression? But again, it appears that the requested exemption only 
would cover faith-based organizations.
 
We all know that employers tend to be very risk averse. Would employment 
applications, and promotion reviews, include consideration of religious views 
with regard to same-sex sexual conduct? There are reports that JP Morgan Chase 
may ask employees to fill out non-anonymous surveys that include a question 
about whether the employee is “[a]n ally of the LGBT community,” whatever that 
may mean. See 
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/06/brendan-eich-was-only-the-beginning-.html;
 
http://www.washingtontimes.com/news/2014/jul/3/chase-bank-surveys-workers-see-if-theyre-ally-lgbt/.
 
 
There is another issue, not dealing with exemptions or with the substance of 
the issue, but dealing with separation of powers and the assertion of executive 
authority. Congress rejected ENDA. May the President impose it on a 
not-insubstantial segment of the economy? Perhaps the answer is a clear yes, 
under federal

Re: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.?

[Paul Finkelman]

i am sorry if I misunderstood you; but you seem to be arguing that it is 
dangerous to protect LGBT people from discrimination because people are 
religiously opposed to to the very biology of some people.  That is, we all 
know that most LGB people are biologically programmed that way; we know that 
people who are trans change their physical gender to match their biological 
brain gender.  

And we know that some people believe this is immoral and your post implies it 
will violate their religious freedom if they are not allowed to refuse to hire 
people who are LBGT or to retain them.  Furthermore, your post implies that it 
would be wrong to allow a discrimination claim based on a hostile work 
environment which created antagonism to people who are LBGT.  In this sense I 
think it is exactly the same position some people took in the 1950s-70 (and 
some may take today) in using religious arguments to support racial 
discrimination.  

I am not intentionally trying to put words in your mouth or intentionally 
trying to misread you.  And since we are friends, you know this is not 
personal.  I don't know what your position is.  But your post seems to imply 
that you think an executive order banning discrimination on the basis of sexual 
orientation it harmful.  I respectfully disagree.  


It is morally and ethically the right thing to do.  No one is denied religious 
freedom, free exercise, or the right to believe what they want when they are 
told that in the market place they may not harass and may not discriminate. 




 From: Scarberry, Mark mark.scarbe...@pepperdine.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 9, 2014 6:48 PM
Subject: RE: What's at stake in the debate over the forthcoming LGBT
nondiscrimination E.O.?
 


Paul,
 
As usual, you’ve managed to misunderstand me. If I get a chance, I’ll respond 
later today. Meanwhile I’ll just say that your interpretation of what I said is 
not reasonable, as you should have known.
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Wednesday, July 09, 2014 11:47 AM
To: Law  Religion issues for Law Academics
Subject: Re: What's at stake in the debate over the forthcoming LGBT 
nondiscrimination E.O.?
 
What's at stake is the basic civil rights for millions of American who are 
fired, or never hired, for what they do in private and what they do outside the 
workplace. 
 
These are not much different than the arguments in the 1950s and 1960s that 
integration violated God's laws.  Bob Jones University is best known only 
because it ended up in the Supreme Court, but these arguments were made quite 
frequently.  
 
The comment about the movies I suppose would be this:  Hollywood makes stupid 
movies about stupid things all the time.  Hollywood makes movies about 
unimportant things all the time.  So isn't the issue this:  if you only 
criticize movies that deal with gay issues, and you do it as a kind of 
harassment -- as opposed to a serious discussion of movies --  and you do it in 
front of colleagues you know are gay only to annoy them or harass them -- then 
perhaps it is harassment.  If you discuss movies at work all the time, then it 
might not be.
 
It strikes me as religious discrimination to assume that people who are 
religiously hostile to people because they are gay would necessarily 
discriminate against them.  But, it would also be discrimination if someone is 
fired because the boss believes being gay is sinful.  

Since Christians believe that we are sinners, if the devout person fires 
someone for being gay or transgender (they are very different things) isn't 
that discrimination because they haven't fired all the other sinners, including 
themselves.
 
Mark, you seem to be arguing that people can use religion to discriminate 
against anyone who they think is immoral.  How far are you going to take that?
 
Paul Finkelman



From:Scarberry, Mark mark.scarbe...@pepperdine.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 9, 2014 1:20 PM
Subject: RE: What's at stake in the debate over the forthcoming LGBT 
nondiscrimination E.O.?
 
Perhaps an initial question is the scope of the proposed regulations. The 
government has pushed “harassment” and “hostile work environment” definitions 
pretty hard. If a manager of a religiously-affiliated charity that had a 
federal contract to provide social services, let’s say food for the homeless, 
openly expressed the view that same-sex sexual conduct is immoral, could that 
be the basis for suit, or perhaps, in this context, for denial of a government 
contract? (One online anti-harassment training program – that employees of a 
religiously-affiliated institution in California were required

Re: On a different strand of the seamless web

[Paul Finkelman]

I guess the difference is this; the owners of Hobby Lobby are free to do as 
they choose; but Hobby  Lobby is not a person; it takes advantage of all the 
protections of corporations.  Suppose the owners of Hobby Lobby deeply opposed 
racial integration.  In their private lives they could act on that; they could 
live in a segregated private world but would not allow them to claim that in 
their business they could refuse to hire blacks (or Jews, or non-Christians 
etc.) and similarly, they would have to serve all customers.  That is the 
difference between a company and an individual.  


I agree with Doug that the owners of Hobby Lobby should live their lives; I do 
not see how a corporation -- even a  closely held one -- with thousands and 
tens of thousands of employees -- constitutes people living their lives.

Going to the mall is not really a religious experience.




 From: Douglas Laycock dlayc...@virginia.edu
To: Paul Finkelman paul.finkel...@yahoo.com; religionlaw@lists.ucla.edu 
Sent: Monday, July 7, 2014 1:37 AM
Subject: Re: On a different strand of the seamless web
 

I think individual humans, who believe that they have souls, do not forfeit 
their right to religious liberty when they incorporate their business. I 
believe that exemptions are about letting them live their lives, and 
restricting or prohibiting government-sponsored prayer is about letting 
everyone else live theirs.

On Sun, 6 Jul 2014 13:47:49 -0700
Paul Finkelman paul.finkel...@yahoo.com wrote:
unlike Doug, I do not believe corporations are people, that they have 
religious believes or that they have souls (that is of course an 
understatement); corporations are legal vehicles designed to make money for 
the investors and to shield the investors from having to use their own assets 
to cover losses and debts. 


I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to 
heaven or hell, or that it prays.  So, I guess I am unpersuaded that there can 
be an exemption issue for a corporation




 From: Douglas Laycock dlayc...@virginia.edu
To: Paul Finkelman paul.finkel...@yahoo.com; Law  Religion issues for Law 
Academics religionlaw@lists.ucla.edu; Scarberry, Mark 
mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 11:36 AM
Subject: Re: On a different strand of the seamless web
 

Unlike Paul, I think the exemption issues and the government-sponsored prayer 
issues are very different.

On Sun, 6 Jul 2014 01:36:45 -0700
Paul Finkelman paul.finkel...@yahoo.com wrote:
Doug's point here seems to encapsulate what is the problem for so many of us. 
 Those in the majority would make the rest of us burn incense, or listen to 
their prayers, or pay for their prayers or pray with them, or obey their 
views on sex and marriage and children, and we can go on and on.  And many in 
the majority forget that they were once persecuted, whether it was Christians 
killed in Rome or Baptists whipped in Virginia, and now that they have the 
power, they would impose it on us, whether it is health care if you are 
unfortunate enough to have to work for Hobby Lobby or prayers if you are 
unfortunate enough to need something form the government of the Town of 
Greece.

Paul Finkelman (writing from Granada, where the evidence and reminders of 
religious intolerance and persecution is everywhere)




 From: Douglas Laycock dlayc...@virginia.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; 
Scarberry, Mark mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 1:01 AM
Subject: On a different strand of the seamless web
 

On Sat, 5 Jul 2014 11:02:00 -0700
Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:


* * * *
Christians died rather than burn a pinch of incense to the emperor. 


Yes they did. A point they entirely forget as they impose brief Christian 
prayer services on their fellow citizens at public meetings, and insist that 
it's no big deal to go through of motions of praying to a God you don't 
believe in.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
___
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Please note that messages sent to this large list cannot be viewed as 
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Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law

Re: On a different strand of the seamless web

[Paul Finkelman]

off list I can only add Amen.




 From: Douglas Laycock dlayc...@virginia.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, July 7, 2014 1:33 AM
Subject: Re: On a different strand of the seamless web
 

Even in the rare case of government-sponsored prayer where no one is coerced to 
participate, the government is gratuitously telling citizens that its religion 
is true and their religion is false. Telling people what religious beliefs are 
true was one important element of the classic establishments.

But apart from all that, in the real world citizens who attend the meeting are 
forced to participate in the prayer. The government pressures religious 
dissenters directly in these situatins, and it creates the occasion for intense 
pressure on religious dissenters from their fellow citrizens. To deny or ignore 
all this, as the Court did in Greece, is simply out of touch with human 
reality. 

On Sun, 6 Jul 2014 21:57:27 -0700
Volokh, Eugene vol...@law.ucla.edu wrote:
               Sandy:  I appreciate your point, and it is certainly a view 
held by many serious scholars.  But my point is simply that it isn't at all 
obvious that this indeed involves an Establishment Clause violation - and 
that, especially it isn't obvious that this involves religious liberty (Alan's 
phrase, to which I was specifically responding), and indeed many serious 
scholars think the two are quite different.  Among other things, being ordered 
to do (or not do) something strikes me as more clearly a matter of liberty 
than hearing things from the government.

               Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 1:31 PM
To: Law  Religion issues for Law Academics
Subject: Re: On a different strand of the seamless web

I think that once one is hearing from government offensive theological 
views, the Establishment Clause is fully implicated. It is prudence, and 
nothing else, that legitimizes In God We Trust.  (That's why the court had 
to invent an implausible standing doctrine to avoid deciding in Newdow's 
favor.)  But I think there's a role for prudence, as against all principle all 
the time.

Sandy

Sent from my iPhone

On Jul 6, 2014, at 2:26 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
               I take it that the authors of those briefs saw a law requiring 
someone to do something that they thought was sinful as different from a 
practice under which people end up hearing things from the government that 
they might find offensive or alienating.

               Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Sunday, July 06, 2014 11:10 AM
To: Law  Religion issues for Law Academics
Subject: RE: On a different strand of the seamless web


I think Chips and Doug's key points in their posts are worth emphasizing. 
Many briefs supporting the town of Greece and the Court's opinion in that case 
treated the religious liberty arguments of plaintiffs with complete distain. 
The authors of many of those briefs and the same justices who wrote the 
opinion upholding coercive and discriminatory prayer practices  in Town of 
Greece insisted that the religious liberty of Hobby Lobby must be protected.



As Chip suggests, a tradition, or support for a legal regime, of religious 
liberty for me but not for you cannot be fairly described as a commitment to 
religious liberty.



An incidental, but not insignificant, result of this kind one-sided support 
for religious liberty is the burden it places on those of us who try to defend 
and promote religious liberty and equality for people on both sides of the 
culture wars.



Alan


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



___
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Re: On a different strand of the seamless web

[Paul Finkelman]

i guess it was on list, but the analysis is the same




 From: Paul Finkelman paul.finkel...@yahoo.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, July 7, 2014 3:48 AM
Subject: Re: On a different strand of the seamless web
 


off list I can only add Amen.






 From: Douglas Laycock dlayc...@virginia.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, July 7, 2014 1:33 AM
Subject: Re: On a different strand of the seamless web
 

Even in the rare case
 of government-sponsored prayer where no one is coerced to participate, the 
government is gratuitously telling citizens that its religion is true and their 
religion is false. Telling people what religious beliefs are true was one 
important element of the classic establishments.

But apart from all that, in the real world citizens who attend the meeting are 
forced to participate in the prayer. The government pressures religious 
dissenters directly in these situatins, and it creates the occasion for intense 
pressure on religious dissenters from their fellow citrizens. To deny or ignore 
all this, as the Court did in Greece, is simply out of touch with human 
reality. 

On Sun, 6 Jul 2014 21:57:27 -0700
Volokh, Eugene vol...@law.ucla.edu wrote:
   
            Sandy:  I appreciate your point, and it is certainly a view held by 
many serious scholars.  But my point is simply that it isn't at all obvious 
that this indeed involves an Establishment Clause violation - and that, 
especially it isn't obvious that this involves religious liberty (Alan's 
phrase, to which I was specifically responding), and indeed many serious 
scholars think the two are quite different.  Among other things, being ordered 
to do (or not do) something strikes me as more clearly a matter of liberty 
than hearing things from the government.

               Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 1:31 PM
To: Law  Religion issues for Law Academics
Subject: Re: On a different strand of the seamless web

I think that once one is hearing from government offensive theological 
views, the Establishment Clause is fully implicated. It is prudence, and 
nothing else, that legitimizes In God We Trust.  (That's why the court had 
to invent an implausible standing doctrine to avoid deciding in Newdow's 
favor.)  But I think there's a role for prudence, as against all principle all 
the time.

Sandy

Sent from my iPhone

On Jul
 6, 2014, at 2:26 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
               I take it that the authors of those briefs saw a law requiring 
someone to do something that they thought was sinful as different from a 
practice under which people end up hearing things from the government that 
they might find offensive or alienating.

               Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Sunday, July 06, 2014 11:10 AM
To: Law  Religion issues for Law Academics
Subject: RE: On a different strand of the seamless web


I think Chips and Doug's key points in their posts are worth emphasizing. 
Many briefs supporting the town of Greece and the Court's opinion in that case 
treated the religious liberty arguments of plaintiffs with complete distain. 
The authors of many of those briefs and the same justices who wrote the 
opinion upholding coercive and discriminatory prayer
 practices  in Town of Greece insisted that the religious liberty of Hobby 
Lobby must be protected.



As Chip suggests, a tradition, or support for a legal regime, of religious 
liberty for me but not for you cannot be fairly described as a commitment to 
religious liberty.



An incidental, but not insignificant, result of this kind one-sided support 
for religious liberty is the burden it places on those of us who try to defend 
and promote religious liberty and equality for people on both sides of the 
culture wars.



Alan


___
To post, send message to 
Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu
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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 read the Web archives; and list members can (rightly or wrongly) forward 
the messages to others.

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



___
To post, send message to Religionlaw@lists.ucla.edu

Re: On a different strand of the seamless web

[Paul Finkelman]

i am not sure; my point is this that Hobby Lobby is NOT about individuals it is 
about a company.  I agree with Doug (and probably every on this list) that the 
owners of Hobby should have religious liberty to avoid doing some things (but I 
believe that is true for Smith in the Oregon case).  My point is that Hobby 
Lobby is a corporation and not a person and so it has no -- zero -- rights of 
religious liberty.  It should be required to act according to the law, the same 
as any other corporation.  For profit corporations (as opposed to an 
not-for-profit religious corporation) are not people so I simply disagree that 
their owners are free to act in the way Doug wishes.

So, in that sense, I think Doug's position has to be that the corporation 
somehow has a religious liberty.  I am not buying it.




 From: Volokh, Eugene vol...@law.ucla.edu
To: Paul Finkelman paul.finkel...@yahoo.com; Law  Religion issues for Law 
Academics religionlaw@lists.ucla.edu; Douglas Laycock 
dlayc...@virginia.edu; Scarberry, Mark mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 7:11 PM
Subject: RE: On a different strand of the seamless web
 


   Paul:  Are you seriously claiming that Doug believes a 
corporation has a soul?  Or even that he believes it is a person (the singular 
of “people”) in the lay sense of the word “person,” as opposed to the 
Dictionary Act sense of the person?
 
   Eugene
 



From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, July 06, 2014 1:48 PM
To: Douglas Laycock; Law  Religion issues for Law Academics; Scarberry, Mark
Subject: Re: On a different strand of the seamless web
 
 
unlike Doug, I do not believe corporations are people, that they have religious 
believes or that they have souls (that is of course an understatement); 
corporations are legal vehicles designed to make money for the investors and to 
shield the investors from having to use their own assets to cover losses and 
debts. 
 
I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to 
heaven or hell, or that it prays.  So, I guess I am unpersuaded that there can 
be an exemption issue for a corporation
 



From:Douglas Laycock dlayc...@virginia.edu
To: Paul Finkelman paul.finkel...@yahoo.com; Law  Religion issues for Law 
Academics religionlaw@lists.ucla.edu; Scarberry, Mark 
mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 11:36 AM
Subject: Re: On a different strand of the seamless web

Unlike Paul, I think the exemption issues and the government-sponsored prayer 
issues are very different.___
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Re: Hobby Lobby Question

[Paul Finkelman]

Mark with all due respect, infanticide is illegal everywhere in the US and 
anyone caught and convicted is punished.

Do you any evidence of mass killings of babies in this country?  I have never 
seen any evidence of this.  Infanticide is pretty rare.  


I know no jurisdiction that puts babies, infants, or children out of the 
protection of the law.  Can you name such a jurisdiction or give us a statute.

Paul Finkelman




 From: Scarberry, Mark mark.scarbe...@pepperdine.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, July 7, 2014 5:12 AM
Subject: RE: Hobby Lobby Question
 


Sandy,
 
Many people think millions of innocent babies have been intentionally killed. 
It is nearly intolerable that a government would allow private persons to do 
this (putting the child outside the protection of the law), and unthinkable 
that a court would prevent the people from acting through the other branches of 
government to stop it. 
 
Once the government sets up a program of paying for mass abortion, many people 
will think that the government is too evil to be treated as legitimate. 
Resistance of various kinds would become morally permissible or even required.
 
You asked how this could be distinguished from use of tax money for unjust wars 
and for propping up terrible foreign regimes:
 
We have seen that when we try to replace terrible regimes abroad with better 
ones, we sometimes only make things worse. Did the Shah do bad things? Of 
course. Did our pressuring the Shah to allow Khomeini to return improve the 
situation? The question answers itself.
 
Even in wars that many of us may think unnecessary and unjust, our forces 
generally do not have a policy of intentionally killing innocent noncombatants. 
We all know that there will be disagreements about which wars need to be 
fought, and how they should be fought. The vast majority of Americans are not 
thoroughgoing pacifists; we know that we do need armed forces and that they 
will sometimes need to be sent to war. But when soldiers intentionally kill 
innocent noncombatants – not as an unwanted  but unavoidable side-effect but 
intentionally – we want the perpetrators to be prosecuted. When the victims are 
innocent young children, we want even harsher punishment of the perpetrators. 
 
Abortion is an intentional killing of the fetus/unborn child. Only rarely can 
the death be seen as an unwanted  side effect. (Ectopic pregnancies may be an 
exception.)
 
Yet if the government – our government, using resources taken from us – starts 
paying doctors to kill innocent children? What would you do, Sandy, if the 
government paid for vans to pick up unwanted children and kill them? Resistance 
to paying taxes would probably be the mildest reaction you would have. This may 
be too foreign to you for it to be understandable, but that is how millions of 
Americans would feel about massive levels of government funded abortions (or 
even less-than-massive levels). 
 
It’s hard for me to believe that those who are strongly pro-life really think 
in their gut that an early abortion is the same as the murder of an innocent 
child. If they did, they would refuse to tolerate such mass murder, and we 
would already have a civil war; or at least we would unless the pro-life forces 
were convinced that violence would lead to an even worse Hobbesian war of all 
against all. Perhaps Christian teachings about non-violence or respect for 
authority help to constrain what could otherwise be violent actions taken in 
defense of innocent human life. There is occasional violence, but nothing like 
what would happen if there were vans going around picking up children and 
killing them, all  under police protection. We would get out our hunting 
rifles. (Actually, I’d go out and buy one, if they were available.)
 
Now, the later the abortion, the more like child murder it becomes (even for 
those who believe intellectually that all abortions are the same),  and the 
stronger the reaction; that explains why, if I’m correct, the violence tends to 
be against doctors who perform late term abortions that many people see as 
being little different from infanticide. Even then, almost all pro-life people 
reject violence.
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
 
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 7:45 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby Question
 
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

Re: On a different strand of the seamless web

[Paul Finkelman]

unlike Doug, I do not believe corporations are people, that they have 
religious believes or that they have souls (that is of course an 
understatement); corporations are legal vehicles designed to make money 
for the investors and to shield the investors from having to use their 
own assets to cover losses and debts. 

I do not believe any faith thinks Hobby Lobby has an immortal soul, can 
go to heaven or hell, or that it prays.  So, I guess I am unpersuaded that 
there can be an exemption issue for a corporation



 From: Douglas Laycock dlayc...@virginia.edu
To: Paul Finkelman paul.finkel...@yahoo.com; Law  Religion issues for Law 
Academics religionlaw@lists.ucla.edu; Scarberry, Mark 
mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 11:36 AM
Subject: Re: On a different strand of the seamless web
 

Unlike Paul, I think the exemption issues and the government-sponsored prayer 
issues are very different.

On Sun, 6 Jul 2014 01:36:45 -0700
Paul Finkelman paul.finkel...@yahoo.com wrote:
Doug's point here seems to encapsulate what is the problem for so many of us.  
Those in the majority would make the rest of us burn incense, or listen to 
their prayers, or pay for their prayers or pray with them, or obey their views 
on sex and marriage and children, and we can go on and on.  And many in the 
majority forget that they were once persecuted, whether it was Christians 
killed in Rome or Baptists whipped in Virginia, and now that they have the 
power, they would impose it on us, whether it is health care if you are 
unfortunate enough to have to work for Hobby Lobby or prayers if you are 
unfortunate enough to need something form the government of the Town of Greece.

Paul Finkelman (writing from Granada, where the evidence and reminders of 
religious intolerance and persecution is everywhere)




 From: Douglas Laycock dlayc...@virginia.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; 
Scarberry, Mark mark.scarbe...@pepperdine.edu 
Sent: Sunday, July 6, 2014 1:01 AM
Subject: On a different strand of the seamless web
 

On Sat, 5 Jul 2014 11:02:00 -0700
Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:


* * * *
Christians died rather than burn a pinch of incense to the emperor. 


Yes they did. A point they entirely forget as they impose brief Christian 
prayer services on their fellow citizens at public meetings, and insist that 
it's no big deal to go through of motions of praying to a God you don't 
believe in.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
___
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 Anyone can subscribe to the list and read messages that are posted; people 
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the messages to others.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546___
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Re: On a different strand of the seamless web

[Paul Finkelman]

Eugene has obviously never been to a city council meeting or town board to ask 
for something.  Those in the audience in Town of Greece who do not pray are 
setting themselves up to lose before the board; those who are religious 
outsiders (by dress for example) are being told, from the opening of the 
meeting that they count less.

The Town said it invited clergy from all churches in the town.  But that is a 
subterfuge since many people in the town (a suburb of Rochester) will attend a 
temple, mosque, synagogue, etc. that is not in the town.  So the town is 
essentially confirming their outsider status even before they come before the 
council/town board.

Eugene, your view is utterly incoherent if you connect it to the reality of 
small town politics and how government at that level works.  


Paul Finkelman




 From: Volokh, Eugene vol...@law.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, July 6, 2014 2:07 PM
Subject: RE: On a different strand of the seamless web
 


   I’m not a fan of official prayers.  But it seems a plausible 
view of religious liberty that (1) people should have exemptions, when 
possible, that let them practice their religion, but (2) government 
institutions should have considerable latitude to include religious speech in 
their programs – so long as they don’t force people to pray – especially given 
longstanding American traditions approving of some such inclusion.  (In 
particular, being in the audience while a chaplain is praying strikes me as not 
that much to “endure,” and I say this as someone who is irreligious; while 
being required to participate would be wrong, I think, being required to simply 
be present in the room, or to briefly leave the room for the occasion, seems to 
me as quite a different matter.)  The view I describe here may not be 
everyone’s view of religious liberty, but it seems to me quite coherent, and 
has something to recommend it.
 
   Eugene
 



From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, July 06, 2014 9:51 AM
To: Law  Religion issues for Law Academics
Subject: Re: On a different strand of the seamless web
 
I very much appreciate Doug's post and his reference to Town of Greece.  The 
Becket Fund, which has very ably represented Hobby Lobby and others in the 
contraceptive cases, insists that it is committed to religious liberty.  
(Likewise many on this list.) But in Town of Greece, the Becket Fund filed an 
amicus brief on the side of the Town; it was aligned not with religious 
liberty, but rather with the power of government to shove prayer in the face of 
citizens who wanted to interact with elected officials without having to endure 
a worship exercise for someone else's faith.   If this is our constitutional 
tradition, as many argued, it is not a tradition of religious liberty.
 
On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edu wrote:
On Sat, 5 Jul 2014 11:02:00 -0700
 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:


* * * *
Christians died rather than burn a pinch of incense to the emperor.


Yes they did. A point they entirely forget as they impose brief Christian 
prayer services on their fellow citizens at public meetings, and insist that 
it's no big deal to go through of motions of praying to a God you don't believe 
in.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
___
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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 (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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Re: Hobby Lobby Question

[Paul Finkelman]

Sandy's idea that Brown did nothing is simply wrong.  Brown altered American 
culture in profound ways and set the stage for massive civil rights 
demonstrations, since it signaled the end to legal segregation, and was 
followed in two years by overturning Plessy.  It led to litigation and 
legislation in all kinds of ways, and it forced the Senators of the former 
Confederacy, except for LBJ, Gore, and Kefauver, to out themselves with their 
manifesto. Furthermore, in much of the upper south, as well as in many Catholic 
school systems in the South, it led so some integration.

We need only remember what the US south looked like in 1950 to understand the 
enormous changes Brown led to.




 From: Levinson, Sanford V slevin...@law.utexas.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, June 30, 2014 10:20 PM
Subject: RE: Hobby Lobby Question
 


Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of
 thousands upon thousands low-visibility officials, than school segregation.
 
But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.
 
sandy
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby Question
 
With respect, I think Sandy's response (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) is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  The 
life of the law should be experience, and experience teaches that the nation 
obeys the law.  At least mostly, and at least so far.  And Congress can amend 
RFRA if The People don't like it.

Art Spitzer


Warning: this message is subject to monitoring by the NSA.
 
On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu 
wrote:
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.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 

Re: case book needed

[Paul Finkelman]

This is a very short course -- one credit -- 1 hour a day, 4 days a week, for 
3 weeks (in Lyon).  Is there any chance you could send me a PDF or text version 
of your 160 pages so I can look at them.  I could not assign the whole book for 
this short course but would love to borrow a case or two or three if that were 
possible.  Or, perhaps you can have west send me the book.  I might use it in 
the future if I teach it as a real course some time.

Paul Finkelman
48 Thorndale Road
Slingerlands, NY  12159





 From: Alan Brownstein aebrownst...@ucdavis.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, May 12, 2014 12:37 PM
Subject: RE: case book needed
 


 
It is intended more as a supplement to a domestic law course rather than the 
text for a comparative law course, but Leslie Jacobs and I co-authored Global 
Issues in Freedom of Speech and Religion in 2009. About 160 pages are law and 
religion materials.  West is the publisher.
 
Alan Brownstein
 
From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor
Sent: Wednesday, May 07, 2014 6:32 PM
To: Law  Religion issues for Law Academics
Subject: RE: case book needed
 
Cole Durham and Brett Scharffs have a book from Aspen called “Law and Religion: 
National, International, and Comparative Perspectives.”  They have a lot of 
material on the EU, though the book is broader in scope than the US and EU.  It 
might fit your needs.
 
John Taylor
WVU College of Law
 
From:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu 
[mailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu] On Behalf 
Of Finkelman, Paul
Sent: Wednesday, May 07, 2014 8:10 PM
To: Law  Religion issues for Law Academics
Subject: case book needed
 
Does anyone know if there is a casebook out there -- or has anyone taught and 
can share materials -- for a course on  comparative religion and law.  I have 
to teach one this summer -- comparing US to EU law (and if I can other 
countries).  
 
 
 
*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
 
518-445-3386 (p)
518-445-3363 (f)
 
paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


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Re: case book needed

[Paul Finkelman]

i apologize to the list as well, I thought I was just responding to Alan.  Bad 
day for emailing I guess





 





 From: Alan Brownstein aebrownst...@ucdavis.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, May 12, 2014 12:37 PM
Subject: RE: case book needed
 


 
It is intended more as a supplement to a domestic law course rather than the 
text for a comparative law course, but Leslie Jacobs and I co-authored Global 
Issues in Freedom of Speech and Religion in 2009. About 160 pages are law and 
religion materials.  West is the publisher.
 
Alan Brownstein
 
From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor
Sent: Wednesday, May 07, 2014 6:32 PM
To: Law  Religion issues for Law Academics
Subject: RE: case book needed
 
Cole Durham and Brett Scharffs have a book from Aspen called “Law and Religion: 
National, International, and Comparative Perspectives.”  They have a lot of 
material on the EU, though the book is broader in scope than the US and EU.  It 
might fit your needs.
 
John Taylor
WVU College of Law
 
From:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu 
[mailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu] On Behalf 
Of Finkelman, Paul
Sent: Wednesday, May 07, 2014 8:10 PM
To: Law  Religion issues for Law Academics
Subject: case book needed
 
Does anyone know if there is a casebook out there -- or has anyone taught and 
can share materials -- for a course on  comparative religion and law.  I have 
to teach one this summer -- comparing US to EU law (and if I can other 
countries).  
 
 
 
*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
 
518-445-3386 (p)
518-445-3363 (f)
 
paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


___
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: Definition of discrimination.

[Paul Finkelman]

Ira, unless I missed an earlier post, aren't Greg evangelists merely 
hypothetical?  It may be sad, but it is only a story as opposed to Jean's 
retelling of a history or the facts of the florist who would not serve gay 
customers.

I think Ira is absolutely right that we have to be very careful about how we 
use the term art in this context.  The art claim is someone bogus for a 
commercial photographer or a commercial artist.  We are all artists in 
some old fashioned sense (look at old apprenticeship contracts).  But when you 
are advertising your profession to the general public you are not usually an 
artist in the way we generally understand it.

I know wedding photographers who are also artists -- but the enterprises are 
separate.

Is my dentist and artist when he fills my teeth?  Or the art work of the 
plumber fixing my pipes?  I don't think so.

Could an architect say he will not design a house for a gay couple because he 
is an artist?  Or the house painter refuse to paint the house for the same 
reason?

Paul Finkelman
Justice Pike Hall, Jr. Visiting Professor of Law
LSU Law Center
110 Union Square Bldg.
1 East Campus Drive
Louisiana State University
Baton Rouge, LA  70803-0106

518 605 0296 (mobile)




 From: Ira Lupu icl...@law.gwu.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Saturday, March 1, 2014 10:37 AM
Subject: Re: Definition of discrimination.
 


Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, 
or some other crime).  Likewise, a sad story about the evangelists that Greg S. 
tells (rudeness and worse).  But neither story is about discrimination as the 
law understands it, because passersby had no legal duty to engage in any way 
with the people they mistreated.  We are all free to ignore or interact 
(peacefully) with strangers on the street, whatever their political or 
religious cause, personal appearance, etc.  And we are all selective in how and 
when we do engage -- so we discriminate in that sense, like we discriminate 
when we order from a menu.

This is NOT the context of wedding vendor exemptions or marriage license clerk 
exemptions from anti-discrimination norms.  Those norms impose a duty to serve 
without selectivity based on race. religion, etc.  And those kinds of laws are 
built on a sense that certain groups are vulnerable to widespread exclusion 
from opportunities -- employment, housing, and (where the law so provides) the 
right to purchase goods and services from those who hold themselves out to the 
public as providing such services.  So, please, let's not get sidetracked with 
poor analogies to highly sympathetic but legally quite different situations.

To Greg S.  -  your concern for conscription of creative artists 
(photographers?) seems quite legitimate.  Perhaps such people should just not 
be covered by anti-discrimination laws at all.  But we would have to be very 
careful to define creative artists quite narrowly -- wine vendors, caterers, 
bakers, and most others who serve in the wedding industry should NOT fall under 
that category. 

To all list members who signed that letter to Gov. Brewer -- it would have been 
a whole lot better if you had brought that letter to the list's attention 
yourselves.  Whether or not you had a duty to disclose it (in light of your 
postings on the subject), norms of professional courtesy and candor certainly 
pointed that way.  I'm disappointed that you failed to do so.





On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote:

A sad and disturbing story.  I'd say that, yes, it was discrimination from 
the outset and virulently so.  Verbal antagonism is a form of discrimination, 
when it is based on a person's identity, as it obviously was here (and in my 
hypothetical as well).  Whether what Jean experienced was or should be 
actionable as a matter of law, and at what point the discriminatory conduct 
changed from offensive speech to illegal threat (when the introduction of legal 
constraint is most justified), does not change the overall nature of the 
conduct as discrimination.

As despicable as may be expression, we appreciate that the law is not the 
right response to every such situation and that empowering the government to 
police emotional harms -- without in any way depreciating the reality and 
impact of emotional harms -- may be intrusive into expression and may invite 
overreaching of governmental coercion that endangers freedom for all.  Denying 
public goods and services based on identity is discrimination to be sure, but 
so is what my hypothetical Christian evangelists suffered.  In the end, 
whether the law should prohibit any particular form of discrimination should 
turn on whether a concrete economic harm or danger to safety is established, 
not simply on characterization of behavior as discriminatory.  Expectations of 
decency and civility call for all of us as neighbors

Re: bigotry and sincere religious belief

[Paul Finkelman]

Professor Chen's response seems a bit over the top. The government is not, 
after all, interested in closing businesses.  It is interested in making sure 
that businesses which are licensed by the government and are open to the public 
serve the entire public and that business owners do not act on their personal 
bigotries (or beliefs) when offering their goods and services to the public.

Put another way, the government cannot force people to change their 
views about others; it can only (and properly) compel them to treat 
others with dignity, respect, and equality.  I am surprised anyone on 
this list would object to this.

Of course anti-gay bigotry may be closeted.  That is far better than having it 
out in the open to harm people on a day-to-day basis.  

Idaho is considering a law that would allow doctors and dentists (among others) 
to refuse to treat gay patients.  This is not about opposition to marriage but 
hostility to gay people per se.  That the hostility is religiously motivated is 
hardly relevant.  The KKK lynched Jews and Catholics (not as often as blacks) 
because they KKK members were religiously motivated to do so.

If I were a gay man in Idaho with a broken arm, I would probably not care if 
the doctor was a closeted bigot who hated gays; or had anti-gay religious 
beliefs (clearly not along the line of doing unto others or loving thy 
neighbor).  All I would want is that the professional with the MD set my arm 
properly and give me a cast and send me on my way to healing.  After my arm was 
set (or after I bought flowers for my wedding) I would not be too concerned 
about the doctor or florist crawling back into his or her closet to be bigoted.

Indeed, I would argue that civil rights laws are designed precisely to force 
the bigots into the closet (or the privacy of their home, private club, or even 
their church) where they can exercise their right to despise people for 
religious reasons or any other reasons. But, when the go outside engage in 
businesses and professions, they cannot let those prejudices (or deeply held 
religious convictions) prevent them from accepting all comers in their 
businesses. 




Professor Paul Finkelman
Justice Pike Hall, Jr. Visiting
Professor
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, LA  70803-0106

225-578-0894225-578-0894 (of)
518-605-0296518-605-0296 (m)








 From: tznkai tzn...@gmail.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Thursday, February 27, 2014 9:39 AM
Subject: Re: bigotry and sincere religious belief
 


I'm not sure how easily it could be done, but we ought to try on some level to 
protect the sincere religious beliefs

Because attempts to enforce by legal sanctions, acts obnoxious to go great a 
proportion of Citizens, tend to enervate the laws in general, and to slacken 
the bands of Society. If it be difficult to execute any law which is not 
generally deemed necessary or salutary, what must be the case, where it is 
deemed invalid and dangerous? And what may be the effect of so striking an 
example of impotency in the Government, on its general authority?

Of course, the government may very well succeed in closing businesses and 
closeting anti-gay bigotry, but that may also be problematic. The sword of the 
state creates quite a mess when attempting to spread small-l liberal goals 
into illiberal communities of conviction, and illiberal factions often grow 
stronger, not weaker as a result. When that community is, say, an Amish 
community living mostly separate from wider society, the costs fall only 
within that insular community. When that community is a living, breathing part 
of our polity, the costs to us, as a whole are great.

Separating religion from culture is a difficult, if not foolish errand, and 
likewise we should not read genuine and free of conflating factors into 
sincere. Sincerity of belief is as simple as not lying, substantive burden is 
measured by the willingness of believers to pay the price of their beliefs. 
Pursuing comity in service of a just and stable society suggests we not ask 
believers to make the price of their conscience participation in our economy.

On the whole the current trends in protecting religious liberty are a cure 
worse than the disease however, because no good defense of religious liberty 
turns free of constraint into free of cost. The sin of Ollie (and that of David 
Green) is not following his conscience, but seeking full coverage under aegis 
of state laws without any compromise.

-Kevin Chen



On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edu wrote:

I think that the politics of the moment, and the conversations we have been 
having (including the reference to Jim Oleske's provocative article about 
religious objections to inter-racial marriage compared to religious objections 
to same sex marriage, Interracial and Same-Sex Marriages: Similar

Re: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Paul Finkelman]

NY Times reports that the ACLU in Oklahoma is challenging this.  Standing 
issues?  Just interviewed said he thought he could do this. Perhaps is an 
argument for a required first amendment course in all law schools.
 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Sanford Levinson slevin...@law.utexas.edu
To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu 
Sent: Thursday, November 22, 2012 12:59 PM
Subject: Re: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program
 
I must say that this seems to be an easy case for any civil libertarian to 
support even (or perhaps especially) in the absence of a free exercise claim.  
The RI is absolutely correct that this is socializing students to be docile 
citizens within a surveillance society.

Sandy



- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu Nov 22 11:41:41 2012
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip    
Badge for Student Locator Program

Yes. I did not mean to imply otherwise. The school's website says that it has a 
high rate of absences. I gather the school thinks that if it monitors all 
students it will somehow be able to claim a higher attendance rate and get more 
state funds (which I suppose are based on daily attendance, as they are in 
California). The school was willing to accommodate her by removing the chip 
from her badge, but apparently that would not affect the appearance of the 
badge. 

Happy Thanksgiving to everyone on the list!

Mark

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

-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Thursday, November 22, 2012 8:30 AM
To: Law  Religion issues for Law Academics; Scarberry, Mark
Subject: Re: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

The complaint alleges that all students were required to wear the badge -- not 
just those in disciplinary trouble or with a history of truancy. Nothing 
individualized about this.

On Wed, 21 Nov 2012 20:47:56 -0800
Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:
The Rutherford Institute says that it has obtained a TRO protecting a student 
who refused to wear a badge with an RFID (radio frequency identification) chip 
that would allow the school to determine her location at all times on school 
grounds. See 
https://www.rutherford.org/publications_resources/on_the_front_lines/victory_court_grants_rutherford_institute_request_to_stop_texas_school_from.
 The application for a TRO is here:  
https://www.rutherford.org/files_images/general/11-21-2012_TRO-Petition_Hernandez.pdf.

Apparently the student considers the wearing of the badge to be a kind of 
idolatry or act of submission to a false god. She was offered the option of 
wearing a badge with the chip removed, but she refused, because wearing it 
would signal her approval of or participation in the program, which raises 
both free exercise and compelled speech issues. There are other issues, as 
well, including a claim that the school prohibited her from passing out flyers 
on school grounds opposing the RFID program.

The Rutherford Institute describes the RFID program as a preparation of 
students for a society in which everyone is constantly under surveillance, but 
they also note that the school district hopes to get more funding by improving 
attendance.

I thought this was going to be about the mark of the beast from the Book of 
Revelation. The story and the application for a TRO don't seem to be that 
specific on the source of her religious objection. I think she also claims 
that the program violates her right to privacy and that the requirement that 
she wear a badge (even without the chip) to indicate support for the program 
is a form of compelled speech.

I haven't anything on this story in the mainstream press. Perhaps someone on 
the list knows more or can provide links to news stories.

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



Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
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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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Re: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Paul Finkelman]

I just realized that Doug posted this story already.  I should have scrolled 
down further.  Happy T-Day to all
 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Paul Finkelman paul.finkel...@yahoo.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Thursday, November 22, 2012 1:55 PM
Subject: Re: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program
 

NY Times reports that the ACLU in Oklahoma is challenging this.  Standing 
issues?  Just interviewed said he thought he could do this. Perhaps is an 
argument for a required first amendment course in all law schools.
 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Sanford Levinson slevin...@law.utexas.edu
To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu 
Sent: Thursday, November 22, 2012 12:59 PM
Subject: Re: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program
 
I must say that this seems to be an easy case for any civil libertarian to 
support even (or perhaps especially) in the absence of a free exercise claim.  
The RI is absolutely correct that this is socializing students to be docile 
citizens within a surveillance society.

Sandy



- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu Nov 22 11:41:41 2012
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip    
Badge for Student
 Locator Program

Yes. I did not mean to imply otherwise. The school's website says that it has a 
high rate of absences. I gather the school thinks that if it monitors all 
students it will somehow be able to claim a higher attendance rate and get more 
state funds (which I suppose are based on daily attendance, as they are in 
California). The school was willing to accommodate her by removing the chip 
from her badge, but apparently that would not affect the appearance of the 
badge. 

Happy Thanksgiving to everyone on the list!

Mark

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

-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Thursday, November 22, 2012 8:30 AM
To: Law  Religion issues for Law Academics; Scarberry, Mark
Subject: Re: High School Student's Religious
 Objection to Wearing RFID Chip Badge for Student Locator Program

The complaint alleges that all students were required to wear the badge -- not 
just those in disciplinary trouble or with a history of truancy. Nothing 
individualized about this.

On Wed, 21 Nov 2012 20:47:56 -0800
Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:
The Rutherford Institute says that it has obtained a TRO protecting a student 
who refused to wear a badge with an RFID (radio frequency identification) chip 
that would allow the school to determine her location at all times on school 
grounds. See 
https://www.rutherford.org/publications_resources/on_the_front_lines/victory_court_grants_rutherford_institute_request_to_stop_texas_school_from.
 The application for a TRO is here:  
https://www.rutherford.org/files_images/general/11-21-2012_TRO-Petition_Hernandez.pdf.

Apparently the student considers the wearing of the badge to be a kind of 
idolatry or act of submission to a false god. She was offered the option of 
wearing a badge with the chip removed, but she refused, because wearing it 
would signal her approval of or participation in the program, which raises 
both free exercise and compelled speech issues. There are other issues, as 
well, including a claim that the school prohibited her from passing out flyers 
on school grounds opposing the RFID program.

The Rutherford Institute
 describes the RFID program as a preparation of students for a society in which 
everyone is constantly under surveillance, but they also note that the school 
district hopes to get more funding by improving attendance.

I thought this was going to be about the mark of the beast from the Book of 
Revelation. The story and the application for a TRO don't seem to be that 
specific on the source of her religious objection. I think she also claims 
that the program violates her right to privacy and that the requirement that 
she wear a badge (even without the chip) to indicate support for the program 
is a form of compelled speech.

I haven't anything on this story in the mainstream press. Perhaps someone on 
the list knows more or can provide links to news stories.

Mark S

Re: Circumcision

[Paul Finkelman]

ok



Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Perry Dane d...@crab.rutgers.edu
To: religionlaw@lists.ucla.edu 
Sent: Thursday, July 12, 2012 6:07 PM
Subject: Circumcision
  

 My answers
here should also be informed by Marty's sensible third category of likely
regret.  But I'll limit myself to the two categories I tried to
outline in my earlier post.

 (1)
Tattooing:  I don't like tattoos.  I actually often find myself
physically repulsed by them.  My own religion forbids them. 
But if parents had a serious religious reason for tattooing their
underage child (note that I'm limiting myself here to religious reasons),
I would not want the state to intervene unless the tattooing were of a
sort that involved severe pain or was likely to have genuinely harmful
long-term physical, psychological, or sociological consequences for the
child.  

 (2)
Sterliziation:  The state could reasonably conclude that forcibly
sterilizing a child produces the grave harm of eliminating that child's
ability to make future reproductive choices.  Here, the issue of
competent consent is inextricably tied up with the procedure. 
Adults who have themselves sterilized are making a reproductive choice;
children who are sterilized without their consent are deprived of all
future such choices.  

 (3)
Pregnancy:  It does seem to me that society could reasonably
conclude that pregnancy by a 14-year-old is developmentally inappropriate
for both physical and psychological reasons.  To be sure, we should
respect the kid's autonomous rights in this context, at least to the
extent of, for example, not allowing either the state or the kid's
parents to force her to have an abortion.  But, as Eugene
emphasizes, that doesn't mean that we do or should excuse the
culpable role that others might play in getting the kid
pregnant.

 Obviously,
one of the issues in all these comparisons is my sense that circumcision
is not as big a deal as some would suggest.  Apart from its
religious significance for many folks, it does seem to have serious
health benefits, including but limited to helping to prevent HIV
infection, which is why there's a major campaign in parts of Africa to
have as many men as possible sterilized.  Moreover, it clearly does
not eliminate sexual sensitivity or gratification, or even reduce it to
the extent that millions upon millions of circumcised men are heard
lamenting their fate.  Indeed, the jury is out as to whether it has
any real effect on sexual sensitivity or gratification at all.  And
even if it did lead to some small reduction in sheer physical
sensitivity, that would strike me as only dubiously relevant:  it
assumes that the quality of sex is tied in a purely linear way to the
quantity of a particular physical stimulus.  

 Add to all
this the point I made earlier:  To the extent that the act of
circumcision itself is potentially disturbing or physically complicated
for the one being circumcised, that's much more true for adults than for
eight-day-year-old baby boys.  

 Let me,
though, throw out a hypothetical of my own.  Say that baby is born
with a very large and very visible and, by most lights, unsightly mole on
his or her face.  The mole poses no health risk to the child. 
But it is very ugly.  The doctors tell the parents that they can
remove the mole completely with very little risk to the child. 
Having the mole removed as an adult would be possible, but somewhat more
complicated.  In any event, if the procedure were put off, the child
would grow up with the mole still on his or her face.

 The
parents decide to have the mole removed (1) for aesthetic reasons and/or
(2) because they're concerned that the sense of social identity or
psychological health of the child will be impaired if they do not have
the mole removed.

 Should the
state intervene in this decision?  Should it be entitled to? 
Would these parents' aesthetic and psychological concerns be more worthy
of respect than the religious motives of parents who have their baby boys
circumcised?  Should it matter that the aesthetic judgment of the
mole is culture-specific, or that in some other cultures such a mole
would actually be thought to be a mark of great beauty?

 If a
response to this hypo is that circumcision is different from mole-removal
because it cuts off a sexually sensitive part of the body, then I can
tweak the hypo slightly to assume the mole removal (1) will have a
minimal negative consequence such as, say, ever-so-slightly blunting the
kid's sense of smell, and (2) it will also have some positive medical
consequences, such as reducing the risk of certain sorts of infections,
and I can further assume that the parents, taking into account

Re: German circumcision decision

[Paul Finkelman]

Alternatively, one might argue that this is a medical decision for where there 
is scant evidence that it causes any harm at all (unlike say female mutilation) 
and there is some medical evidence that it is valuable.  In that sense it goes 
back to the parent to make the decisions.

Again, as I noted earlier, there are many cultures where parents have the ears 
of infant girls pierced -- this too can lead to infection but there is no 
medical value.  There are cultures where children -- sometimes quite young -- 
have tattoos and other markings put on them.  Again, not medical value, perhaps 
no long term harm but certainly not something that can be undone.  

Many American hospitals routinely circumcise boy babies without out any 
religious purpose.  It is a parental option in most places.  And the basis is 
that it is medically not a bad thing to do; or that it is medically a good 
thing to do.  It is not clear, but it seems that the German decision would ban 
this practice, but maybe not.  Maybe it is only banned as religious practice, 
and then it looks a lot like the Hialeah statute on animal slaughter that the 
court correctly (and I believe unanimously) struck down.  (I am writing form 
Beijing at the moment so it is not easy to look these things up).

It is hard to see the decision in any other light than a objection to 
religious/cultural practice by two postal workers and a local judge.  One 
wonders how much medical, scientific, historical, sociological, and other 
expert evidence was put before the court?  My guess it not very much if any at 
all.  It smacks of seat-of-the pants we don't like them and we don't like what 
they do and so we are going to rule against them.

Does anyone know how these courts are chosen:?  Do these Courts ever include 
any of the members of Germany's huge Turkish population -- some of whom are now 
4th generation born in Germany but still not given citizenship? As opposed to 
many people in the former Soviet Union of German ancestry who got instant 
citizenship when the migrated?

It seems hard to separate this case from the politics of immigration, 
nationality, and citizenship in Germany.



 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Volokh, Eugene vol...@law.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 4, 2012 4:24 PM
Subject: RE: German circumcision decision
 

    Sorry for the delay responding – I was traveling Monday and 
Tuesday – but I’m not sure I grasp the argument in the first paragraph.  My 
view is generally this:
 
    (1)  People should generally have the power to make medical 
decisions for themselves.
    (2)  Infants and children can’t make such decisions.
    (3)  Yet some such medical decisions must be made quickly, 
before the child becomes mature enough to decide.
    (4)  We therefore delegate this power to make medical decisions 
to the parents.
 
    But this argument hinges on there being medical reasons for the 
decision – I don’t see any reason for parents to have this power when they 
exercise it for nonmedical reasons.  We may defer to a parent’s decision, even 
one we doubt, when it involves a tradeoff of one medical risk for another 
medical risk.  But I don’t see why we should defer to such a decision when the 
parent doesn’t even purport to be making a medical judgment, but is just 
deciding based on the judgment that “God wants me to do this” or “I don’t want 
to give more profits to Big Pharma.”  That’s not weighing religious motivation 
negatively because it’s religious – that’s weighing a nonmedical motivation 
negatively compared to a medical motivation because the only justification for 
letting me order someone to alter not my body but my son’s body is the need for 
medical judgment.
 
    This leaves two different arguments.  One is “letting people do 
what they have always done,” which strikes me as weak for the reasons I gave in 
part of my response to Paul Finkelman’s post – especially give the longstanding 
tradition of allowing not just parental decisions about surgery for children 
but also parental decisions about beating children, a tradition that I do not 
think ought to be given much legal weight.  The second, which I think is 
intriguing and might be correct, is to have such decisions be made by 
legislatures directly, rather than by judges interpreting general human rights 
norms.  I’d love to hear more thoughts on this institutional question.
 
    Eugene
 
From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Monday, July 02, 2012 10:58 AM
To: Law  Religion issues for Law

Re: German circumcision decision

[Paul Finkelman]

Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.  


The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Volokh, Eugene vol...@law.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision
 

    Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.
 
    Eugene
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Re: German circumcision decision

[Paul Finkelman]

I posted this before I had a chance to read the decision, which I now see is 
about a Muslim case; that undermines some of my arguments, but not all of 
them.  The politics may be less about Jews than Muslims but the issue remains 
the same -- a fundamental attack on religious minorities.  I wonder, for 
example, whether the next step will be a ban on Kosher or Halal slaughtering on 
the grounds that it is cruel to animals? The case does not seem to be based 
on the place of the circumcision.  That is one could imagine a law that 
requires it to be done in a hospital. But this does not appear to be the issue 
here.  

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Paul Finkelman paul.finkel...@yahoo.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, July 1, 2012 12:21 PM
Subject: Re: German circumcision decision
 

Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.  


The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Volokh, Eugene vol...@law.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision
 

    Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.
 
    Eugene
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Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

[Paul Finkelman]

also of course the fired officer said this is the reason; maybe he was just a 
lousy candidate?

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: b...@jmcenter.org b...@jmcenter.org
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, June 10, 2012 10:29 PM
Subject: Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard
 

Joel, I'm not clear what your point is other than an Orthodox Jew was fired 
because he did not follow regulations. The article that you linked states: 
Today there are at least two dozen Orthodox-Jewish police officers working for 
the NYPD. However, it doesn't mention whether any of those police officers 
have beards longer than 1mm (which is very short). It would seem to me that if 
NYPD regulations were enforced as to them, then you have an Employment Div. v. 
Smith -- neutral rules of general applicability situation. If the regulations 
weren't enforced as to some or all of the two dozen current police officers, 
then a number of claims may be available to the fired academy individual for 
wrongful termination.

 
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236 

On June 10, 2012 at 5:54 AM Joel Sogol jlsa...@wwisp.com wrote: 


An Orthodox Jew who was weeks away from becoming a New York City police officer 
said he has been kicked out of the police academy for refusing to trim his 
beard.
Former recruit Fishel Litzman of Monsey was fired Friday after multiple 
confrontations with the department over the length of his whiskers, he told 
the Daily News.
 
http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite
 
 
Joel L. Sogol
Attorney at Law
811 21st Avenue
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx  (205) 345-0971
jlsa...@wwisp.com
 
Ben Franklin observed that truth wins a fair fight -- which is why we have 
evidence rules in U.S. courts.
 
  
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Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

[Paul Finkelman]

I think you are right, which makes me wonder about this case; also you would 
think the recruit would have been told about the beard policy at the beginning 
of his training;
but hey, maybe this is an elaborate scheme to make him a cop who can really go 
underground as a guy who is mad at the police?

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



 From: Arthur Spitzer artspit...@gmail.com
To: b...@jmcenter.org b...@jmcenter.org; Law  Religion issues for Law 
Academics religionlaw@lists.ucla.edu 
Sent: Sunday, June 10, 2012 10:44 PM
Subject: Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard
 

You'd think the NYPD would want at least one officer who would have the ability 
to go undercover in the large NYC bearded orthodox Jewish community.

Art Spitzer


On Sun, Jun 10, 2012 at 10:29 PM, b...@jmcenter.org b...@jmcenter.org wrote:

 
Joel, I'm not clear what your point is other than an Orthodox Jew was fired 
because he did not follow regulations. The article that you linked states: 
Today there are at least two dozen Orthodox-Jewish police officers working 
for the NYPD. However, it doesn't mention whether any of those police 
officers have beards longer than 1mm (which is very short). It would seem to 
me that if NYPD regulations were enforced as to them, then you have an 
Employment Div. v. Smith -- neutral rules of general applicability situation. 
If the regulations weren't enforced as to some or all of the two dozen current 
police officers, then a number of claims may be available to the fired academy 
individual for wrongful termination.

 
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236 

On June 10, 2012 at 5:54 AM Joel Sogol jlsa...@wwisp.com wrote: 


An Orthodox Jew who was weeks away from becoming a New York City police 
officer said he has been kicked out of the police academy for refusing to trim 
his beard.
Former recruit Fishel Litzman of Monsey was fired Friday after multiple 
confrontations with the department over the length of his whiskers, he told 
the Daily News.
 
http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite
 
 
Joel L. Sogol
Attorney at Law
811 21st Avenue
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx  (205) 345-0971
jlsa...@wwisp.com
 
Ben Franklin observed that truth wins a fair fight -- which is why we have 
evidence rules in U.S. courts.
 
  
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-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
Tel. 202-457-0800
www.aclu-nca.org
artspit...@gmail.com


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Re: Go to Church or Go to Jail?

[Paul Finkelman]

I wonder what happens if a Jew, a Moslem, or a Seventh Day Adventist gets 
arrested.  Not to mention a  Hindu, Buddhist, or another other follower of a 
non-western faith. 

 

Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com



From: James Edward Maule ma...@law.villanova.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; 
conlawp...@lists.ucla.edu conlawp...@lists.ucla.edu
Sent: Monday, September 26, 2011 5:37 PM
Subject: Go to Church or Go to Jail?


That’s what it appears to be (sorry for cross-posting but this should be useful 
to subscribers on both lists looking for an exam question, to say nothing of 
the expected discussion).
 
http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2
 
Headline and first paragraph:
 
Jesus or jail? Alabama town offers options for serving time
 
If you're charged with a nonviolent crime in one Alabama town, you might just 
have the chance to pray it all away.
Starting this week, under a new program called Operation ROC (Restore Our 
Community), local judges in Bay Minette, Alabama, will give those found guilty 
of misdemeanors the choice of serving out their time in jail, paying a fine or 
attending church each Sunday for a year.
 
 
James Edward Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule
 
 
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Re: Augusta State University student sues school over requirementthat she undergo remediation due to her religious views

[Paul Finkelman]

presumably there is a difference between cooking food and practicing medicine 
and presumably there is snot a national standard for culinary schools; I find 
Will's example here to be not exactly on point.  

There are good reasons why professionals in the health field (and law and some 
other fields) are licensed and certified.

Similarly, there is a clear difference between length of hair and practicing 
medicine or similar professions. 



Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



paul.finkel...@albanylaw.edu



www.paulfinkelman.com

--- On Wed, 7/28/10, Will Esser willes...@yahoo.com wrote:

From: Will Esser willes...@yahoo.com
Subject: Re: Augusta State University student sues school over requirementthat 
she undergo remediation due to her religious views
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 10:41 AM

I think Marci misses the point of my example regarding medical schools and 
de-selection of certain groups.  The point has to do with the way in which the 
standards are set and whether conscientous objection exemptions are necessary 
(or required) in order to not have an adverse impact upon religious believers.  
The Fifth Circuit held that an exemption was necessary for a Native American to 
wear long hair in school.  It seems to me the only difference between that and 
the Augusta case is the so called standard of the profession.  
 
The point I was making (perhaps inartfully) is that I don't believe government 
entities get a pass on First Amendment accomodation simply by reference to some 
standard of the profession set by a non-governmental entity.  The test for 
accomodation may not be quite as rigorous in the context of professional 
degrees as it is for elementary or high schools, but I think accomodation is 
still relevant and necessary.
 
It's easy to come up with examples on this point.  If the American Medical 
Association says that to graduate from medical school, you must have performed 
an abortion, does that mean that a public medical school can impose that 
requirement on all its students without regard for their sincerly held 
religious beliefs that would not allow them to participate in an abortion, 
simply because that requirement is now part of the standard of the 
profession?  As another example, if a national culinary society which sets the 
standard of the profession requires that any culinary student must cook and 
eat pork in order to receive a cooking degree, does the public school avoid any 
First Amendment concerns for observant Jews by simply referring to the standard 
of the profession as ground for an accomodation?  
 
It seems to me that the First Amendment requires more than the government 
passing the buck by referring to some external standard of the 
profession.   
 
Will
 
 

Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina


We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light.
Plato (428-345 B.C.)


--- On Wed, 7/28/10, hamilto...@aol.com hamilto...@aol.com wrote:


From: hamilto...@aol.com hamilto...@aol.com
Subject: Re: Augusta State University student sues school over requirementthat 
she undergo remediation due to her religious views
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 9:46 AM


I agree with Paul's concerns about watering down professional standards.  This 
is where accommodation hits the wall of the public good. Professionals are 
valuable in the marketplace because they represent a specified and approved 
body of knowledge and principles.  Those who reject key principles should not 
be permitted the profession's imprimatur.
But I also want to point out that it is a gross exaggeration to characterize 
the situation as one that affects Christians
Her beliefs represent certain denominational beliefs.  Many Christians reject 
her views.
  It is this rhetorical sleight of hand that permits historical 
reconstructionists to argue that the United States was founded on one set of 
religious beliefs.  From the beginning of the US and especially now, there is 
more variety across Christian denominations than similarity on many issues.  
Finally, I don't think there is a sillier
 argument than  Will Esser's that there is something wrong with a medical 
program that de-selects certain beliefs.  Medical schools de-select 
believers in faith-healing for say meningitis all of the time.  
   
Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Will Esser willes...@yahoo.com
Sender: religionlaw-boun...@lists.ucla.edu
Date: Wed, 28 Jul 2010 06:18:52 
To: Law  Religion issues for Law Academicsreligionlaw@lists.ucla.edu
Reply-To: Law 
 Religion issues for Law Academics

Re: Augusta State University student sues school over requirement that she undergo remediation due to her religious views

[Paul Finkelman]

I am not suggesting Christians can't go to medical school just that they cannot 
impose their religious doctrines on their patients and they should not be 
graduated if they will not do that.  Again, Will, are you going to graduate med 
students who insist on being surgeons but will not use blood transfusion?  

This issue is not one of belief, nor is it one of practice. It is one of 
separating the workplace from what you believe outside the workplace. If you 
cannot make that separation, then it is not unreasonable to suggest that you 
cannot take a certain job.  

Would you recruit and train a pacifist Christian for the police department who 
says I will NEVER carry a gun?  How about an EMT, Firefighter, or police 
officer who will not enter someone else's church or a cemetery on religious 
grounds?



Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



paul.finkel...@albanylaw.edu



www.paulfinkelman.com

--- On Wed, 7/28/10, Will Esser willes...@yahoo.com wrote:

From: Will Esser willes...@yahoo.com
Subject: Re: Augusta State University student sues school over requirement that 
she undergo remediation due to her religious views
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 9:18 AM

It strikes me that Paul's comments tie in well with the recent discussion about 
the Fifth Circuit's Arocha decision overturning the school district ban on 
wearing long hair.  As I recall in those discussions, Doug Laycock raised the 
legitimate question about whether a ban on wearing long hair could cause 
religious groups to chose not to move to certain regions of the country (i.e. 
geographical de-selection of religious groups due to government regulation).  
 
Similarly, in this case, the question strikes me as whether the therapy program 
is being set up in such a manner that it de-selects certain religious groups 
(i.e. Christians, in this example).  Paul talks about the standards of the 
profession.  While, I have no doubt there is significant disagreement over 
what the standards of the profession are, it seems to me that if the 
government (through a university) is involved in saying what the standards 
are in such a way that Christians are automatically de-selected from the 
program (i.e. you cannot be a faithful, believing Christian AND a therapist), 
that is a problem.  
 
Taking Paul's example of the medical school a step further, could a public 
medical school set up its program such that students were not allowed to 
graduate unless they had participated in (or performed) an abortion?  
 
Will
 
P.S. As a quick aside, Paul, I think Christian ethical convictions of do 
unto others requires respect for people as children of God but does not 
therefore necessarily require acceptance or respect of people's values.  
Christian ethical convictions are based in a belief in objective truth, such 
that do unto others requires a desire to know, understand and lead others to 
the truth.  I would argue that an attitude of I'll respect what you believe, 
and you respect what I believe without an emphasis on seeking truth, is very 
much divorced from Christian ethical convictions.  
 
 

Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina


We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light.
Plato (428-345 B.C.)


--- On Wed, 7/28/10, Paul Finkelman paul.finkel...@yahoo.com wrote:


From: Paul Finkelman paul.finkel...@yahoo.com
Subject: Re: Augusta State University student sues school over requirement that 
she undergo remediation due to her religious views
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 1:01 AM







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Re: Augusta State University student sues school over requirement that she undergo remediation due to her religious views

[Paul Finkelman]

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It would seem to me that Christian 
ethical convictoins would require her to do unto others as she would want 
them to do unto her, and thus perhaps respect their values and act as a 
responsible therapist.  
 
I wonder, suppose she did not believe 
in blood transfusion and was in a medical school?  Would it be legitimate not 
to 
give her a degree because she was not willing to apply techniquest of modern 
medicine to her patients.  Suppose she lectured her patients before surgery on 
how wrong they were for demaning a transfusion during surgery?
 
In otherwords, if she is trained to be 
a professional in the  care field, can she be allowed to take her degree if she 
refuses to accept the standards of the profession.  This is not about her 
beliefs -- or even her actions.  No one is asking her to participate in a same 
sex relationship.  This seesm to me to be about her refusal to implement the 
standards of her profession because she does not like the behavior of some 
people. 
 
There is also of course some equal protection issues here.  I would 
guess she is against heavy drinking, drug use, and non-marital sex.  If 
she insisting on implementing her religious values when treating patients who 
might behave in those ways?  What about people who don't obey the sabbath (or 
at 
least her sabbath)?  Or those who don't accept the teachings of Christianity?  
How far, in other words, does this go, or is she only dragging out her 
religious 
values when dealing with gay people?



Paul Finkelman

President William McKinley Distinguished Professor of Law

Albany Law School

80 New Scotland Avenue

Albany, NY  12208



518-445-3386 (p)

518-445-3363 (f)



paul.finkel...@albanylaw.edu



www.paulfinkelman.com

--- On Wed, 7/28/10, Brad Pardee bp51...@windstream.net wrote:

From: Brad Pardee bp51...@windstream.net
Subject: Augusta State University student sues school over requirement that she 
undergo remediation due to her religious views
To: religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 12:45 AM




 
 

 

 

 

 







Jennifer Keeton is a student at
 Augusta State 
 University , pursuing a
graduate degree in counseling.  In line with her religious beliefs, she holds
to the traditional view regarding homosexuality.  She has expressed those
views in classroom discussions as well as in written assignment.  In
response, the University has informed her that she must complete a remediation
program or else she will be expelled from the program.  According to the
complaint, the “faculty have promised to expel Miss Keeton from the graduate
Counselor Education Program not because of poor academic showing or
demonstrated deficiencies in clinical performance, but simply because she has
communicated both inside and outside the classroom that she holds to Christian
ethical convictions on matters of human sexuality and gender identity.” 

   

From Atlanta 
Journal-Constitution: 

http://www.ajc.com/news/college-punished-her-for-577547.html 

   

From Fox News: 

http://www.foxnews.com/us/2010/07/27/georgia-university-tells-student-lose-religion-lawsuit-claims/
 

   

   



 


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Faith Base Banking

[Paul Finkelman]

Are there First Amendment issues here? Or more precisely, should there be bank 
regulations -- or civil rights regulations -- that preclude religious banks? Or 
is this just run-of-the-mill corruption (assuming the indictments lead to 
conviction, and the banks are not innocent).

==


The New York Times

May 7, 2010 



2 
at Faith-Based
Bank Are Indicted Over Bribes 

By ROBBIE BROWN 



ATLANTA
— When government regulators here shut down Integrity Bank at the height
 of the
recession, in August of 
2008,
the bank was seen as just another failed lender that had overvalued the 
real
estate market and collapsed.  

But
a federal indictment unsealed on Friday accused two former vice 
presidents at
the bank of hastening its downfall by selling fraudulent loans to a 
hotel
developer in exchange for bribes.  

The
two executives, Douglas Ballard and Joseph Todd Foster, were charged 
with
conspiracy, insider trading and bank fraud, according to the indictment.
 Mr.
Ballard was also charged with bribery. The developer, Guy Mitchell, who
received $80 million in loans, was charged with conspiracy and bribery. 
 

   

Founded on Christian principles 
in 2000 in an Atlanta suburb,
Integrity used the motto “In God We Trust.” The bank gave customers free
Bibles, and employees prayed together at meetings. Onetime
investors included a Georgia state senator and the former CNN host Lou Dobbs.  

   

But
in announcing the indictment, the United States attorney Sally Quillian 
Yates
said Mr. Ballard and Mr. Foster had not lived up to the bank’s name or 
mission.
 

“A
number of banks have suffered from the plummeting real estate market, 
but this
bank was robbed from the inside,” she said.  

Mr.
Ballard, 40, and Mr. Foster, 42, could not be reached for comment on 
Friday and
will be arraigned at a later date. Mr. Mitchell, 50, pleaded not guilty 
at a
federal courthouse in Atlanta.  

A
lawyer for Mr. Mitchell, Edward Garland, said his client had been a 
law-abiding,
profitable customer for the bank. “The collapse of the economy caused 
the bank
failure, not his activity,” Mr. Garland said.  

Georgia
leads the nation in bank failures, with 38 banks having closed since 
2007,
according to the Federal
Deposit
 Insurance Corporation. The state’s woes have generally been blamed
on underregulation and overinvestment in real estate. But the Integrity 
case is
a different matter.  

“These
indictments are very unusual,” said A. James Elliott, associate dean of Emory 
University 
School of
Law, an expert in banking law.  

From
2004 to 2006, Mr. Mitchell, who lives in Coral Gables, Fla., and has 
developed
hotels, shopping centers and other commercial real estate, received the 
$80
million in loans from Integrity, the indictment says. His holdings 
include the
upscale Casa Madrona Hotel and Spa in Sausalito, Calif., and the Royal 
Palm
Hotel near Miami.  

The
indictment charges that he obtained much of the money under false 
pretenses and
deposited nearly $20 million in a personal checking account, with which 
he
bought luxury items, including a $1.5 million private island in the 
Bahamas.  

The
indictment charges that Mr. Mitchell made few, if any, payments on the 
loans.
Instead, it says, he took additional loans, and his debt ballooned. In 
return
for lenience, Mr. Mitchell paid Mr. Ballard more than $230,000 in 
bribes, the
indictment says. It also accuses the two bank executives of engaging in 
insider
trading by selling Integrity stock.  

“After
passing out $80 million to the developer like it was Monopoly money, 
both
officers dumped their Integrity stock before the failed loans came to 
light,”
Ms. Yates said.  

But
Mr. Garland, the defense lawyer, said Mr. Mitchell was in compliance 
with
banking regulations and merely used a central bank account for both 
personal
and business expenses, adding, “We expect to show that he is completely
innocent.”  

Integrity
reported assets of $1.1 billion when it was sold to a unit of the Regions 
Financial
Corporation in 2008. The bank had been a prominent example of 
faith-based
banking in Georgia, with five locations.  

The
bank’s founder, Steven M. Skow, a Lutheran, said it gave away 10 percent
 of
annual profits to churches and faith-based charities, donating $1.7 
million in
2007. Mr. Skow said it did not discriminate against non-Christians. 
 

“We
weren’t selling religion,” he said. “We just managed the bank on godly
principles, like the golden rule.”  

Mr.
Skow, who left the bank in 2007 and was not implicated in the 
indictment, said
he knew nothing about the activities at the heart of the indictment. He 
said he
had lost $22 million in stock when the bank failed.  

Ms.
Yates, the United States attorney, said the investigation into Integrity
 was
continuing.  




Paul Finkelman

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

Re:

[Paul Finkelman]

The result?  Our teen pregnancy rate might drop; the STD rate among teens 
would drop; the HIV/AIDS rate would drop; and the abortion rate would drop.  
Presumably, all of these are things religious conservatives favor.  However,  
some they would complain that by forcing knowledge on students the government 
was somehow violating their religious beliefs.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu

www.paulfinkelman.com

--- On Tue, 2/23/10, Marc Stern mst...@ajcongress.org wrote:


From: Marc Stern mst...@ajcongress.org
Subject: 
To: religionlaw@lists.ucla.edu
Date: Tuesday, February 23, 2010, 7:24 PM



Here is a link to a fight in england over a bill requiring sex ed in all 
schools including religious ones. Under the bill as reported here,schools could 
not teach premarital sex was wrong
What result if passed here in us?
Marc stern
http://www.google.com/url?sa=Xq=http://www.guardian.co.uk/commentisfree/2010/feb/23/sexually-confused-sex-education-faith-schoolsct=gacd=yVg0Ek2Zmiwusg=AFQjCNFc-vZ5I1oIJnw3T__bLEs-xZYl7w

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Mon Feb 01 16:21:57 2010
Subject: Comments on Jim Ryan's Smith and the Religious Freedom 
RestorationAct: An Iconoclastic Assessment, 78 Va. L. Rev. 1407 (1992)?

Folks:  I’m working on the Fourth Edition of my Academic Legal Writing 
textbook, and I wanted to add a chapter that contains an entire highly 
successful student Note – minus most footnotes – coupled with running 
commentary on why each section of the Note works (and, in some instances, how 
it might have been improved).  I figured that I already give students plenty of 
examples of bad writing, but they needed an example of excellent writing, 
together with an analysis of what makes it excellent.



The Note that I chose is Jim Ryan’s Smith and the Religious Freedom Restoration 
Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407 (1992).  I like it a lot 
myself; I’ve heard good things about it from others; and I see that it has been 
cited over 120 times by law reviews articles. 



But I’d also like to include some anonymous quotes from scholars in the field, 
who briefly explain why they think this article is good.  This, I think, will 
dovetail nicely with my own explanation of what I think the article does very 
well.  (Quotes pointing to some weaknesses in the article would also be fine; I 
will mostly praise the article, but I’ll probably include some thoughts on how 
it could have been made still better.)  If you recall the article, and have 
something to say about the article, could you e-mail me?  My student readers 
and I will thank you for it.  Many thanks,



Eugene


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Re: Religious Bias Claim Proceeds Against Pryor Cashman

[Paul Finkelman]

From a very close friend who worked there:

Fascinating... I'd not heard anything about this before.

I was actually quite friendly with the plaintiff.  He
was in our IT department... a techie, not a lawyer... and had a great
deal of trouble getting to work on time.  He and I discussed it a few
times.  FWIW, I don't think religion had anything at all to do with his
firing.
 
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com





From: Joel Sogol jlsa...@wwisp.com
To: paul.finkel...@yahoo.com paul.finkel...@yahoo.com
Sent: Wed, November 11, 2009 5:29:59 AM
Subject: Religious Bias Claim Proceeds Against Pryor Cashman

Religious Bias Claim Proceeds Against Pryor 
Cashmanhttp://alm-editorial-us.msgfocus.com/c/1hS54prQurKAjEJjU
New York Law Journal

A discrimination action brought against Pryor Cashman by a technology expert 
who is an Orthodox Jew will proceed, following denial of the firm's motion to 
dismiss. The judge's decision turned on whether an interpretation of New York 
City's Human Rights Law in a recent sexual discrimination action applied in the 
present case. The plaintiff, who was terminated in 2007, alleges that he was 
discouraged from observing his religion and that the firm's managing partner 
referred to him as a Jewboy on at least one occasion.

Joel L. Sogol
Attorney at Law
811 21st Avenue
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx  (205) 345-0971
jlsa...@wwisp.commailto:jlsa...@wwisp.com

Ben Franklin observed that truth wins a fair fight -- which is why we have 
evidence rules in U.S. courts.


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Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance

[Paul Finkelman]

Steve:  Your argument here would suggest that the court should reverse 
Griswold.  Moreover, oral contraception is used for other things besides birth 
control. And when used for birth control is more effective than condoms and 
does not require the cooperation of men.  Indeed, your solution essentially 
says that women should not control whether they get pregnant but rather it 
should be left of to the men. 



Paul Finkelman

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)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Thu, 8/13/09, Steven Jamar stevenja...@gmail.com wrote:

From: Steven Jamar stevenja...@gmail.com
Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive 
Coverage from Health Insurance
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Thursday, August 13, 2009, 7:43 AM

I haven't really kept up with decisions and actions in this area, but the 
Supreme Court held that refusal of pregnancy benefits was not sex 
discrimination and so it would seem that it would easily enough use the same 
(il)logic to rule that there was no sex discrimination here -- just 
run-of-the-mill coverage limitations.  Besides, women get the same coverage as 
men -- they can buy condoms too -- which, one would expect, would be within any 
deductible amount anyway.
I'll be interested to see what those more versed in this area 
say based on current law.
Steve


On Aug 13, 2009, at 7:23 AM, Will Esser wrote:
I am interested in Listserv participants reactions to the following story 
(which I have copied below from the following site: 
http://www.gastongazette..com/news/college-36646-discriminated-eeoc.html )   
 The U.S. Equal Employment Opportunity Commission 
determined that Belmont Abbey College discriminated against women and 
retaliated against faculty members who filed a charge of employment 
discrimination, according to EEOC documents. An EEOC determination letter 
states that the college discriminated based on gender by denying contraceptive 
benefits in the college’s health coverage plan, according to an EEOC 
determination. Contraception, abortion and voluntary sterilization came off 
Belmont Abbey College’s faculty health care policy in December 2007 after a 
faculty member discovered that coverage, according to an e-mail Belmont Abbey 
College President Bill Thierfelder sent to school staff, students, alumni and 
friends of the
 college. “By denying prescription contraception drugs, Respondent (the 
college) is discriminating based on gender because only females take oral 
prescription contraceptives,” wrote Reuben Daniels Jr., the EEOC Charlotte 
District Office Director in the determination. “By denying coverage, men are 
not affected, only women.” The EEOC also determined that the college retaliated 
against eight faculty members who filed charges with the EEOC by identifying 
them by name in a letter to faculty and staff. “It is the Commission’s position 
that the identity of an individual who has filed a charge should be protected 
with confidentiality during the Commission’s investigation,” Daniels wrote. “By 
disclosing Charging Party’s name, a chilling effect was created on Respondent’s 
campus whereby other faculty and staff members would be reluctant to file a 
charge of employment discrimination for fear of disclosure.” The EEOC asked 
both the faculty
 and the college to work with it to reach a resolution. If the college declines 
to discuss the settlement or an acceptable settlement is not reached, the 
director would inform the two sides and advise them of the court enforcement 
alternatives available. _   There are a couple of 
things that I find fascinating about this story:   (a) First, although not 
explicitly mentioned in this particular story, the EEOC reversed its former 
finding that there was no discrimination by the college..  (You can find 
mention of this reversal in other stories on the web including 
http://www.campusreportonline.net/main/articles.php?id=3235)     I am not an 
employment expert, but it is my understanding that reversals of position by 
the EEOC are exceptionally rare (and presumably take place as a result of a 
directive from on high).  Do any Listserv members have insight on this point? 
  (b) Although the college modified its health
 insurance coverage to exclude abortion, sterilization and contraception, the 
EEOC decision only focuses on contraception.  I wonder about the rationale 
involved here, particuarly vis-a-vis abortion.  The EEOC held that: By denying 
prescription contraception drugs, Respondent (the college) is discriminating 
based on gender because only females take oral prescription contraceptives.  
Using that rationale, why would the same not apply to abortion?  Was the EEOC 
simply shying away from abortion as a more

women's rights and children's rights

[Paul Finkelman]

Eugene:

Here is a partial answer to your question.

I think that the legislation and jurisprudence on parental custody - that wives 
would have primary custody of children after a divorce -- contrary to the old 
English rule -- developed shortly after the development of married women's 
property statutes.  

The movement for protective labor legislation -- that was successful in Mueller 
v. Oregon was tied to the movement against child labor and in many states these 
child labor statutes were easily passed.  Hammer v. Daggenhart struck down a 
federal law limiting child labor, but by then there were a significant number 
of states that had prohibited some form of child labor at the state level and 
all these laws (as far as I know), like the law in Mueller, survived 
challenges. The law in Hammer did not survive because it was based on the US 
Constitution.  It is worth remembering that the Constitutional Amendment to ban 
child labor had enormous support that was probably tied to women voting, but 
maybe some politial scientist out there has some number to help us out.

I think you can also track mandatory school attendance to the agitation by 
women and the rise of political activity by women even before universal 
suffrage for women. I do not know the status of the protection of children in 
the early states that allowed women to vote but perhaps someone can tell us 
about this.





Paul Finkelman

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)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Tue, 8/4/09, Volokh, Eugene vol...@law.ucla.edu wrote:

From: Volokh, Eugene vol...@law.ucla.edu
Subject: RE: Wisconsin convicts parents for denial of medical treatment
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Date: Tuesday, August 4, 2009, 7:03 PM

        Hmm -- is there any evidence supporting the proposition that 
recognizing women's rights has indeed caused greater recognition of children's 
rights?  I would think that many people would see the two as very different 
matters; we've had over 150 years in many states of Married Women's Property 
Acts, for instance, but I take it that most people are quite comfortable with 
parents' having considerable control over their children's property (though not 
unlimited control in certain circumstances, to be sure).  Now perhaps the 
theory below is indeed correct -- I guess I'm just skeptical unless there's 
some clearer evidence.

        Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
 Sent: Tuesday, August 04, 2009 4:00 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: Wisconsin convicts parents for denial of medical treatment

 I share the same experiences as Alan mentions.  Part of what we are dealing 
 with
 here are the consequences of the women's rights movement.  As women's status
 has moved from property to persons, so has children's though more 
 slowly.   The
 status assumptions color judgments about proper parenting  - as well as proper
 treatment of spouses.
 Marci
 Sent from my Verizon Wireless BlackBerry

 -Original Message-
 From: Brownstein, Alan aebrownst...@ucdavis.edu

 Date: Tue, 4 Aug 2009 15:43:48
 To: Law  Religion issues for Law Academicsreligionlaw@lists.ucla.edu
 Subject: RE: Wisconsin convicts parents for denial of medical treatment


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Re: Wisconsin convicts parents for denial of medical treatment

[Paul Finkelman]

Vance's response smacks of red baiting.  Because Communists use science he 
does not trust it?

The KKK uses he Cross on its Robes?  So I suppose we should all be careful of 
anyone professing to be a Christian?  The Oklahoma City Bombers were veterans 
and patriots so beware of anyone who argued for patriotism?

I wonder what Vance means by so-called science -- Biology (which surely deals 
with human behavior) does not apply in his world?  Medical science (another of 
those human sciences) is a so-called science -- so that if a physician 
testifies that a the bruises on a child were caused by a use of force by a much 
stronger human being (the parent beat the child) he will reject this as 
so-called science.

As for anecdotal evidence, we have very good evidence (even anecdotal evidence 
that apparently works better for Vance than other kinds)  that most people who 
end up doing serious harm to others were abused, beating, bruised, etc. by 
their parents.



Paul Finkelman

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)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Mon, 8/3/09, Vance R. Koven vrko...@gmail.com wrote:

From: Vance R. Koven vrko...@gmail.com
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Monday, August 3, 2009, 4:38 PM

To me, scientific principles are to be avoided in anything to do with the 
law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art 
science. Communism was considered scientific. Having been trained as a social 
scientist, I can tell you that those two words don't even belong in the same 
sentence, much less cheek by jowl. All the so-called sciences that deal with 
human behavior suffer from the same defect: for ethical and sometimes 
logistical reasons, we cannot subject people to a rigorously applied scientific 
methodology, and we cannot adequately isolate the thing being tested from the 
millions of other things that influence behavior. That's why so many of the 
scientific studies on virtually every topic are contradicted by other equally 
scientific studies. It does not require a suspicion of bad faith to draw the 
conclusion that science and human behavior are no better than nodding 
acquaintances; and every so often actual bad faith,
 prejudice and hubris manifest themselves in the investigation and 
interpretation of social studies (and even hard sciences). Just imagine if all 
those scientific truths had been ensconced in a legal system based on stare 
decisis? It's bad enough when legislative *policy* is based on science that 
proves an embarrassment fifty or fewer years later--which to some extent is a 
necessity--but to send people to jail based on crackpot pseudoscience, is 
something every decent society should resist. A degree of self-awareness and 
humility would go a long way here.

Based on my admittedly anecdotal experience (but I've accumulated an awful lot 
of anecdotes over my life), children subjected to traditional child-rearing and 
discipline, short of battering and other major harm, will turn out fine or 
twisted, as their natures dictate. Same story with children raised on 
progressive principles.

I realize this has strayed a bit from the original question, but I think it 
does relate to the deference the law should show--under a unified theory or 
multiple theories--to parents' choices of disciplinary philosophy. The law 
*ought* to defer to secular parents as much as to religious parents, but the 
latter should not be denied this deference just because the law has tied itself 
in knots over the basis for such deference to the former.

Vance

On Mon, Aug 3, 2009 at 11:38 AM,  hamilto...@aol.com wrote:

In response to Vance's question---Yes, objective standards are available from 
scientific sources.  The question is whether a child is being harmed, and the 
level of harm can be determined by the extraordinary amount of research that is 
being done in the child abuse/child wellness arena.  Legislatures are capable 
of drawing the line on the basis of these objective standards, and courts are 
capable of factfinding on the basis of experts.  Obviously, there will be gray 
areas, but the scientific information goes a long way to rebutting the implicit 
claims by those protecting parental rights that children's well-being is 
improved by pain and/or browbeating.  Thus, the issue is children's rights to 
bodily integrity and protection from serious harm vs. parental rights to 
control their children.  That balancing is built into the law via Pierce v. 
Society of Sisters and Prince v. Massachusetts.




Marci  





-Original Message-

From: Vance R. Koven vrko...@gmail.com

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu

Sent: Sun, Aug 2, 2009 9:57 pm

Subject: Re: FW: Wisconsin

Re: Wisconsin convicts parents for denial of medical treatment

[Paul Finkelman]

Art:

This discussion began with a defense of bruising children. That is hardly 
spanking.  I think if you look at those beyond death row -- simply violent 
criminals - you will find abuse in almost every circumstance.  



Paul Finkelman

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)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Mon, 8/3/09, artspit...@aol.com artspit...@aol.com wrote:

From: artspit...@aol.com artspit...@aol.com
Subject: Re: Wisconsin convicts parents for denial of medical treatment
To: religionlaw@lists.ucla.edu
Date: Monday, August 3, 2009, 9:08 PM

Because a few seriously abused children become murderers, society needs to 
prohibit spanking?





In a message dated 8/3/09 9:05:21 PM, hamilto...@aol.com writes:





Paul is correct here.  If you want to evidence of the causal connection between 
the home situation and criminal behavior, read the files of the individuals who 
are on death row.  Not infrequently, it is hard to figure out who acted more 
heinously -- the parents of the death row inmate or the death row inmate 
himself.  I'm not saying that home circumstances should be an adequate defense 
to murder.  Rather, as a society it is foolish not to make every effort to stem 
harm to children.








**
A Good Credit Score is 700 or Above. See yours in just 2 easy steps! 
(http://pr.atwola.com/promoclk/100126575x1222846709x1201493018/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072hmpgID=115bcd=JulystepsfooterNO115)
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RE: Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved

[Paul Finkelman]

I find the argument below someone bewildering? 
but the situation can't be avoided without giving every religious
belief veto power.
it is not exactly like there are millions of faiths out there which veto every 
day of the week!  At most this would limit competition on Friday, Sat.. and 
Sunday for people of faith.  Is it so hard to start the competition Sunday 
night and run Monday-Wed/  Or run from Tues to Friday?  The arguments below are 
typical of a majority that is insensitive to any minorities and has the power 
to ignore their needs. 


---
Paul Finkelman
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)

pf...@albanylaw.edu

www.paulfinkelman.com


On Behalf Of Anthony Decinque [anthony.decin...@gmail.com]
Sent: Saturday, May 09, 2009 8:20 AM
To: Law  Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock Trial 
ScheduleResolved

But as someone who has participated in many mock trial tournaments, including
the National (College) Tournament, the board's decision seems like the best
thing.  Teams travel from around the country to attend the tournament.  The
fund-raising that is required to attend is a massive undertaking - as captain of
my team, I remember spending hours pleading with the University and with donors.
 We put on exhibition trials and tried anything else we could think
of to raise money.  High school and college students also miss school to attend.

To go through that trouble and then find out that, because of the religious
beliefs of another team, your team has to either (1) come back another weekend,
or (2) change hotels/flights and stay an extra day, is unreasonable.

No one can claim that they were surprised that the the tournament extends to
the sabbath.  That has been the schedule for decades.

I feel sorry for the students that had to forfeit.  I remember facing a team
who told us that they would have to forfeit if they beat us because they
couldn't compete on the sabbath.  (We solved that problem by beating them..)

But I don't think that this has much to do with Smith because I think the
decision is correct under a pre-Smith regime as well.  If anything, it supports
Smith because now we know that a judge is not going to second-guess the decision
of the people who have managed this tournament for decades.  I'm afraid that
your a-b-c formula below is just a fact of life.  We should avoid the situation
when we can--the board should change the date if it's feasible, for
example--but the situation can't be avoided without giving every religious
belief veto power.

Anthony



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Re: Michael McConnell Resigning from 10th Circuit and Going to Stanford

[Paul Finkelman]

Michael is from Kentucky and does hail from Utah, just to correct the story

Paul Finkelman
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)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Wed, 5/6/09, Conkle, Daniel O. con...@indiana.edu wrote:


From: Conkle, Daniel O. con...@indiana.edu
Subject: Michael McConnell Resigning from 10th Circuit and Going to Stanford
To: conlawp...@lists.ucla.edu conlawp...@lists.ucla.edu, 'Law  Religion 
issues for Law Academics' religionlaw@lists.ucla.edu
Date: Wednesday, May 6, 2009, 11:35 AM



For those who haven't seen this news:
 
http://abovethelaw.com/2009/05/musical_chairs_judge_michael_m.php
 

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.edu 
 
 
-Inline Attachment Follows-


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Re: Faith groups losing gay rights fights - Washington Post- msnbc.com

[Paul Finkelman]

Thanks for posting this Marci.  

This is particularly true in the area of choice.  People forget that there are 
organizations such as Religious Coalition for Abortion Rights, or that Jewish 
Law *requires* an abortion to save the of a pregnant woman and thus the extreme 
position of the Catholic Church and others that NO abortion should ever be 
performed is an attack on other people's religious rights.  

The many g/l churches, temples, etc. illustrate that the gay rights movement 
also has an important faith component.  About 6 years ago, for example, the 
Reform Movement began to perform same-sex marriages.  

Paul



Paul Finkelman

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)



pf...@albanylaw.edu



www.paulfinkelman.com

--- On Fri, 4/10/09, hamilto...@aol.com hamilto...@aol.com wrote:

From: hamilto...@aol.com hamilto...@aol.com
Subject: Re: Faith groups losing gay rights fights - Washington Post- msnbc..com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Friday, April 10, 2009, 7:48 AM

The problem with this coverage as with so much news coverage of religion is 
that it leaves out of the picture the religious believers on the other side. 
The issue is not between secular gay activists and religious believers, but 
rather religious believers who support gays and religious believers who do 
not.   It is not unlike the abolition movement.  On the one side is tradition 
and religious text and on the other side are arguments for equality. The latter 
are based in no small part on a theological vision of justice and love. When 
looked at as a debate between religious believers, the term religious liberty 
loses its force on the one side, because both sides are arguing for liberty 
based on a religious worldview.
Marci

Marci A. Hamilton
Paul R. Verkuil Chair in 
Public Law
Cardozo School of Law  
--Original Message--
From: Joel Sogol
Sender: religionlaw-boun...@lists.ucla.edu
To: 'Law  Religion issues for Law Academics'
ReplyTo: Law  Religion issues for Law Academics
Sent: Apr 10, 2009 4:00 AM
Subject: Faith groups losing gay rights fights - Washington Post- msnbc.com

http://www.msnbc.msn.com/id/30146878/


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Sent from my Verizon Wireless BlackBerry
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RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear ReligiousScarf

[Paul Finkelman]

I also wonder if a hear scarf raises safety issues if the office is involved in 
a pysical confrontation; it also seems to me that or most paramilitary 
organizations the uniform must be uniform -- you can't have everyone 
mondifying the uniform to suit them.  It reminds me of the O'Connor dissent in 
Goldman -- she would allow the yarlmulke because it was covered and did not 
actually aler the uniform; I suppose Phil. could create a headscarf for its 
uniforms. 


Paul Finkelman
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)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Wed, 4/8/09, Volokh, Eugene vol...@law.ucla.edu wrote:


From: Volokh, Eugene vol...@law.ucla.edu
Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear 
ReligiousScarf
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, April 8, 2009, 12:16 PM


    Is the rule really against wearing religious attire?  I couldn't
quickly find Police Department Directive 78 -- the relevant rule --
online, but as I understand it, it sets forth a specific uniform, and
all deviations from the uniform are prohibited, whether they are
religious or otherwise.  I doubt, for instance, that the department
would allow the wearing of political buttons, or ethnic symbols, or just
the officer's favorite hat.  Or am I missing something?

    Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
 Sent: Wednesday, April 08, 2009 8:24 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid 
 to Wear ReligiousScarf
 
 I don't understand why counsel would not have argued starting 
 with the complaint that a rule against wearing *religious* 
 symbols or attire was not a neutral law of general 
 applicability and thus should receive strict scrutiny under 
 the federal Free Exercise Clause.
 
 David B. Cruz
 Professor of Law
 University of Southern California Gould School of Law
 699 Exposition Blvd.
 Los Angeles, CA 90089-0071
 U.S.A.
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sogol
 Sent: Wednesday, April 08, 2009 2:05 AM
 To: Religionlaw
 Subject: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to 
 Wear Religious Scarf
 
 A Muslim woman who works as a Philadelphia police officer has 
 lost her court battle to wear a religious head scarf on the 
 job now that the 3rd U.S.
 Circuit Court of Appeals has ruled that forcing the 
 department to accommodate her would compromise the city's 
 interest in maintaining religious neutrality in its police force.
 
 http://www.law.com/jsp/article.jsp?id=1202429736190
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RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear Religious Scarf

[Paul Finkelman]

is it because the perception of religious bias by a police officer would impact 
how the population feels; imagine she busts a non-religious Moslem woman 
without headgear?  Does this lead to a perception of unfairness; or she busts 
an Orthodox Jew in his headgear?  Seems to me any religious symbols on police 
officers undermines their authority and community relations.


Paul Finkelman
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)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Wed, 4/8/09, David Cruz dc...@law.usc.edu wrote:


From: David Cruz dc...@law.usc.edu
Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear Religious 
Scarf
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu, 
paul.finkel...@yahoo.com
Date: Wednesday, April 8, 2009, 11:24 AM


I don't understand why counsel would not have argued starting with the
complaint that a rule against wearing *religious* symbols or attire was
not a neutral law of general applicability and thus should receive
strict scrutiny under the federal Free Exercise Clause.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
699 Exposition Blvd.
Los Angeles, CA 90089-0071
U.S.A.

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sogol
Sent: Wednesday, April 08, 2009 2:05 AM
To: Religionlaw
Subject: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear
Religious Scarf

A Muslim woman who works as a Philadelphia police officer has lost her
court
battle to wear a religious head scarf on the job now that the 3rd U.S.
Circuit Court of Appeals has ruled that forcing the department to
accommodate her would compromise the city's interest in maintaining
religious neutrality in its police force.

http://www.law.com/jsp/article.jsp?id=1202429736190
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RE: ACLU of NJ Fights For Christian Inmate's Right to Preach

[Paul Finkelman]

I assume Ed is referring t the Pentacostal minister?


Paul Finkelman
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)

pf...@albanylaw.edu

www.paulfinkelman.com

--- On Mon, 12/15/08, Will Linden wlin...@panix.com wrote:

From: Will Linden wlin...@panix.com
Subject: RE: ACLU of NJ Fights For Christian Inmate's Right to Preach
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu, 
paul.finkel...@yahoo.com
Date: Monday, December 15, 2008, 3:44 PM

Thank you for this comprehensive and sophisticated rebuttal.

At 02:48 PM 12/15/08 -0500, you wrote:
Content-Type: multipart/alternative;
 boundary==_NextPart_000_0105_01C95EC4.25DEF720
Content-Language: en-us

Bloody communists out to destroy Christianity in America!



Ed Brayton



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of aa...@aol.com
Sent: Friday, December 12, 2008 6:48 PM
To: religionlaw@lists.ucla.edu
Subject: ACLU of NJ Fights For Christian Inmate's Right to Preach



FYI, the latest addition to my website: 
http://aclufightsforchristians.comACLU Fights for Christians



Allen Asch



Release taken from 
http://www.aclu-nj.org/news/acluprotectsprisonersrelig.htmhttp://www.aclu-nj.org/news/acluprotectsprisonersrelig.htm



ACLU Protects Prisoner's Religious Liberty

For Immediate Release

December 3, 2008

State Prison Officials Prevent Ordained Pentecostal Minister from Preaching

TRENTON, NJ - The American Civil Liberties Union and the ACLU of New 
Jersey today filed a federal lawsuit on behalf of a New Jersey prisoner, 
an ordained Pentecostal minister, who is asking the state to respect his 
religious freedom by restoring his right to preach.

Howard Thompson Jr. had preached at weekly worship services at the New 
Jersey State Prison (NJSP) for more than a decade when prison officials 
last year issued, without any reason, a blanket ban on all preaching by 
inmates, even when done under the direct supervision of prison staff.

Ours is a country where people are free to express their religious 
viewpoints without having to fear repercussions, said Edward Barocas,

Legal Director of the ACLU of New Jersey. The New Jersey State Prison
may 
not deny its prisoners their most basic constitutional rights.

Since he entered NJSP in 1986, Thompson has been an active member of the 
prison's Christian community, participating in and preaching at Sunday 
services and other religious events, teaching Bible study classes and 
founding the choir. His preaching has never caused any security incidents, 
and the prison's chaplaincy staff has actively supported Thompson and 
encouraged him to spread his deeply held message of faith.

But in June 2007, prison officials banned all prisoners from engaging in 
preaching of any kind, without any warning or justification -- which they 
still have not given.

I have a religious calling to minister to my fellow inmates, and
I've 
done so honestly, effectively and without incident for years,
Thompson 
said. All I want is to have my religious liberty restored and to be
able 
to continue working with men who want to renew their lives through the 
study and practice of their faith.

According to the lawsuit, which names NJSP Administrator Michelle R. Ricci 
and New Jersey Department of Corrections Commissioner George W. Hayman as 
defendants, Thompson first preached a service at NJSP over a decade ago, 
when he relieved the former Protestant chaplain, who had been unable to 
lead a scheduled service due to illness.

During the next decade, before he was ordained as a Pentecostal minister, 
Thompson periodically preached at Sunday services, taught Bible study 
classes and participated in and led the prison choir he founded. During 
these years, Thompson received his call to ordained ministry and to 
preaching and leading others in worship, study, and prayer.

Prisoners do not forfeit their fundamental right to religious liberty
at 
the prison gate, said Daniel Mach, Director of Litigation for the
ACLU 
Program on Freedom of Religion and Belief. The prison's absolute
ban on 
inmate preaching clearly violates the law and Mr. Thompson's right to 
practice his faith.

Thompson, ordained in October 2000 during a service at NJSP overseen by 
the prison's chaplain, sincerely believes it is his religious calling
and 
obligation to preach his Pentecostal faith and is willing to do so under 
the full supervision of NJSP staff.

This lawsuit is the latest in a long line of ACLU cases defending the 
fundamental right to religious exercise, a complete 
http://www.aclu-nj.org/news/www.aclu.org/defendingreligion.htmlist
of 
which is available online.

In 2007, the ACLU of Rhode Island prevailed in a lawsuit challenging a 
similar restriction on prisoner preaching, successfully overturning a 
statewide ban and restoring the plaintiff prisoner's right

Re: Atheists want God out of security - Security- msnbc.com

[Paul Finkelman]

The really interesting aspect of this is the way in undermines religion for 
those who take it seriously.  Does this mean that IF there is a terrorist 
attack in KY that God no longer cares about Kentucky?  GW Bush was arguably the 
most religious president to ever sit in the office; lof of good it did us on 
Sept. 11.
 
This reminds me of when I first moved to Oklahoma, in the summer of 1999; there 
was a serious drought in the state. The Governor did not ask the people to 
conserve water or stop washing their cars or watering their lawns every day. 
Instead, he asked everyone to reserve the following Sunday to pray for rain 
at their church.  I suppose that exempted Jews, Seventh Adventists, Moslems, 
and some others from worrying about the problem
 
Alas, it also gave of fabulous proof of the efficacy of prayer.  They all 
prayed on Sunday and guess what --
It did not rain for weeks or maybe even months.
 
So much for the power of prayer when the government tried to commandeer 
religion for its own political ends.  The Baptists -- of all faiths -- those 
who started with Roger WIlliams and were whipped and jailed in 
post-Revolutionary Virginia -- should have the good sense NOT to corrupt their 
faith by allowing politicians to score points.  


Paul Finkelman
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)

[EMAIL PROTECTED]

www.paulfinkelman.com

--- On Wed, 12/3/08, Joel Sogol [EMAIL PROTECTED] wrote:

From: Joel Sogol [EMAIL PROTECTED]
Subject: Atheists want God out of security - Security- msnbc.com
To: Religionlaw religionlaw@lists.ucla.edu
Date: Wednesday, December 3, 2008, 7:01 AM

http://www.msnbc.msn.com/id/28029857/


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RE: Atheists want God out of security - Security- msnbc.com

[Paul Finkelman]

Might prove that God does not want politicians using his name to further their 
own ambitions. Shades of Roger Williams


Paul Finkelman
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)

[EMAIL PROTECTED]

www.paulfinkelman.com

--- On Wed, 12/3/08, Ed Brayton [EMAIL PROTECTED] wrote:

From: Ed Brayton [EMAIL PROTECTED]
Subject: RE: Atheists want God out of security - Security- msnbc.com
To: [EMAIL PROTECTED], 'Law  Religion issues for Law Academics' 
religionlaw@lists.ucla.edu
Date: Wednesday, December 3, 2008, 8:59 AM








In Georgia last year, Gov. Sonny Perdue held a public meeting to, as he put it, 
“pray up a storm” to help the drought and it worked. Kind of. There was a big 
storm the next day in Northern Georgia and Tennessee that brought more than an 
inch of rain. Unfortunately, it didn’t do much to help the drought. It did, 
however, rip the roof off a Baptist church in Tennessee, which injured three 
children and sent them to the hospital. Not terribly relevant to any legal 
analysis, but there it is.
 
Ed Brayton
 

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman
Sent: Wednesday, December 03, 2008 8:44 AM
To: Law  Religion issues for Law Academics
Subject: Re: Atheists want God out of security - Security- msnbc.com
 





The really interesting aspect of this is the way in undermines religion for 
those who take it seriously.  Does this mean that IF there is a terrorist 
attack in KY that God no longer cares about Kentucky?  GW Bush was arguably the 
most religious president to ever sit in the office; lof of good it did us on 
Sept. 11.

 

This reminds me of when I first moved to Oklahoma, in the summer of 1999; there 
was a serious drought in the state. The Governor did not ask the people to 
conserve water or stop washing their cars or watering their lawns every day. 
Instead, he asked everyone to reserve the following Sunday to pray for rain 
at their church.  I suppose that exempted Jews, Seventh Adventists, Moslems, 
and some others from worrying about the problem

 

Alas, it also gave of fabulous proof of the efficacy of prayer.  They all 
prayed on Sunday and guess what --

It did not rain for weeks or maybe even months.

 

So much for the power of prayer when the government tried to commandeer 
religion for its own political ends.  The Baptists -- of all faiths -- those 
who started with Roger WIlliams and were whipped and jailed in 
post-Revolutionary Virginia -- should have the good sense NOT to corrupt their 
faith by allowing politicians to score points.  


Paul Finkelman
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)

[EMAIL PROTECTED]

www.paulfinkelman.com

--- On Wed, 12/3/08, Joel Sogol [EMAIL PROTECTED] wrote:

From: Joel Sogol [EMAIL PROTECTED]
Subject: Atheists want God out of security - Security- msnbc.com
To: Religionlaw religionlaw@lists.ucla.edu
Date: Wednesday, December 3, 2008, 7:01 AMhttp://www.msnbc.msn.com/id/28029857/ 
   ___To post, send message to 
[EMAIL PROTECTED] subscribe, unsubscribe, change options, or get password, 
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archives; and list members can (rightly or wrongly) forward themessages to 
others.
 


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Re: Can religious and secular courts exist in the same nation?

[Paul Finkelman]

it would make much more sense to follow the French rule (as well as that of 
many other countries) and have the state register the marriage and then let 
people do what they want with their faith.


Paul Finkelman
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)

[EMAIL PROTECTED]

www.paulfinkelman.com

--- On Fri, 11/21/08, Douglas Laycock [EMAIL PROTECTED] wrote:

From: Douglas Laycock [EMAIL PROTECTED]
Subject: Re: Can religious and secular courts exist in the same nation?
To: religionlaw@lists.ucla.edu, [EMAIL PROTECTED]
Date: Friday, November 21, 2008, 2:30 AM


I have gradually come round to the view that state recognition of marriages 
performed by religious authority is problematic too, but not for the same 
reasons as divorce.  The marriage is consensual, and the choice of who is to 
perform the marriage is consensual; neither spouse is being coerced by 
government power.  But a contested divorce is not consensual, and if one spouse 
wants to be in religious court and the other wants to be in civil court, the 
choice of where to get it is not consensual.  The question is whether the state 
can use its coercive power to enforce one side's choice.

Quoting [EMAIL PROTECTED]:

 In a message dated 11/19/08 2:38:57 PM, [EMAIL PROTECTED] writes:

 ... This is not a problem if both parties agree, after the dispute has
 arisen, to go to the religious court, and if both parties abide by 
 the judgment. 
 That is just a mechanism for voluntary dispute resolution; the government is
 not involved.  But even in this situation, if the religious court grants a
 divorce that the state recognizes, we have gone beyond voluntary dispute
 resolution. 

 Why is it more problematic for the state to recognize a divorce decreed by a
 religious authority than it is for the state to recognize a marriage decreed
 by a religious authority?   (Not a rhetorical question.)



 **
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713___
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RE: Can religious and secular courts exist in the same nation?

[Paul Finkelman]

Here is a possible example that supports Doug`s position.  There was a case in 
Illinois some years ago in which a Jewish couple married at an Orthodox 
synagogue (where the wife`s father attended) but niether was orthodox.  The 
wife then became orthodox and the changing religious values led to divorce.  
She demanded a Get (a Jewish divorce) from the Orthodox Bet Din, arguing that 
their orthodox kettubah (Jewish Marraige Contract which is written in Aramaic 
which neither husband nor wife could read or understand) required that he give 
her the Get; he refused, arguing that he did not beleive in Orthodox Jewish 
rules and so would not participate.  An Illinois Court ordered him to give her 
the Orthodox Get.  I think the Illinois Court was totally wrong in doing this 
and that the Kettuhbah does not require that he give her a Get. (I am not in 
the US now and cannot locate the case, but it is cited in this article: 
Finkelman, A Bad Marriage:  Jewish Divorce and the First Amendment!
 , 2 Cardozo Women's Law Journal 131-72 (1995).) But, imagine if he had 
converted to another faith altogether?  Become a Baptist or Catholic? Could the 
court order him to go to a Rabbinical Court to participate in a religious/legal 
ceremony process? 

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Douglas Laycock [EMAIL PROTECTED] 11/19/08 2:37 PM 


This argument that voluntary submission to religious courts is like voluntary 
submission to arbitration has a lot of force.  And it can be carried a step 
further:  arguably it discrimiantes against religion if agreements to secular 
arbitration are enforceable and agreements to religious arbitration are not. 

As against the discrimination argument, there is the response that secular 
arbitrators at least purport to be enforcing the law of the land (even though 
they often create ad hoc compromises in practice); religious courts make no 
pretense of enforcing secular law.  I'm not sure how far that carries. 

The more serious argument against civil enforcement of judgments of religious 
courts is that the right to change one's religion is fundamental to free 
exericse.  If I sign a commercial arbitration agreement at time 1, and object 
to arbitration at time 2, when a dispute has actually arisen, I am out of luck. 
 But if I agree to submit to a religious court at time 1 (say, when I get 
married), and I object to the religious court at time 2, when a dispute has 
actually arisen, I may have abandoned the faith in the meantime; I have at the 
very least changed my view of religious courts.  If government holds me to my 
time 1 agreement, government is preventing me from changing my religion. 

This is not a problem if both parties agree, after the dispute has arisen, to 
go to the religious court, and if both parties abide by the judgment.  That is 
just a mechanism for voluntary dispute resolution; the government is not 
involved.  But even in this situation, if the religious court grants a divorce 
that the state recognizes, we have gone beyond voluntary dispute resolution.   

Quoting Volokh, Eugene [EMAIL PROTECTED]:

 I'm inclined to say that this is exactly right.  In fact, the
 Court's church property and church government cases suggest that
 religious arbitration is the only permissible mode for resolving those
 cases that require interpretation of religious doctrine.  And U.S. law
 has certainly coexisted for decades, if not longer, with religious
 arbitration by Beth Dins, Christian arbitration bodies, and a smaller
 number of Islamic arbitration bodies.

 I was curious, though, about two related questions:  (1)  Does
 Jewish, Muslim, or Christian religious law, as interpreted by at least
 some prominent arbitral bodies, set up rules that are either
 substantively (e.g., men are favored over women in divorce settlements,
 or vice versa) or procedurally (e.g., male witnesses are treated as more
 credible than female witnesses, or religiously orthodox witnesses are
 treated as more credible than apostate witnesses) discriminatory based
 on sex, religion, or ethnicity?  (2)  Is there a generally applicable
 principle of arbitration law (both religious and secular) that declares
 arbitration awards to be against public policy if they are based on
 similarly discriminatory rules?

 It may well be that we shouldn't have such a generally applicable
 principle of arbitration law, because parties should be free to waive
 their nondiscrimination rights, at least in certain kinds of contexts.
 But if there such a generally applicable principle, and some religious
 arbitral decisions do indeed tend to involve the application of
 discriminatory rules, then presumably those decisions would be
 unenforceable unless some religious exemption is granted from the
 arbitration law principle

RE: Court enforcement of contracts, and deciding whether Protestant includes Mormons

[Paul Finkelman]

there was a case on this in Hawaii a few years ago involving a private high 
school (Kamehameha School I believe) that requored the hiring of Protestants 
and there was an issue whether a Mormon counted.  EEOC v. Kamehameha 
Schools/Bishop Estate, 900 F. 2d 458 (1993). School lost but not on whether a 
Mormon was a Protestant, but on grounds that the school was not sufficiently 
religious to get and exemption from EEOC regs.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Eric Rassbach [EMAIL PROTECTED] 10/10/08 5:39 PM 
My guess is that these lawsuits would only very infrequently present themselves 
as actual theological controversies to a court, since most contract parties who 
cared to include this sort of provision would know which theological 
controversies to draft around (e.g. Orthodox Jews would make clear that only 
Orthodox Judaism would be allowed).  And in those that did, the difference 
between the two would be clear enough that a court could decide the issue 
without delving into theology (E.g. Jewish v. Roman Catholic or Santeria v. 
Christianity (Santeros view Santeria as a different religion than Christianity, 
though they might view themselves as adherents of both)).  In a case that 
really did force the court to address a theological categorization controversy, 
e.g. must be raised in the Jewish faith and Reconstructionist Judaism, then 
the particular contract provision might have to be treated as unenforceable by 
a civil court.

Regarding the Arkansas case, some data from the LDS website - 
http://www.lds.org/pa/display/0,17884,4890-1,00.html:


Your Identification

An official record of each individual is kept by military officials, and church 
membership may be included as a part of this record. Generally, individuals in 
the service are classified as Jews, Protestants, or Catholics. Attempts have 
been made to include members of The Church of Jesus Christ of Latter-day Saints 
in the Protestant category, but we are not Protestants. Protestants are members 
of those churches which make up the main body of non-Jewish and non-Catholic 
denominations.

We are separate, not to be included with any of the three other groups. Specify 
that you are a member of The Church of Jesus Christ of Latter-day Saints, and 
if anyone tries to list you as a Protestant, do not permit it. In case of 
emergency, for example, proper identification as a member of the Church will be 
of vital importance. Therefore, when you register with the military service, 
list yourself as a member of The Church of Jesus Christ of Latter-day Saints.






-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, October 10, 2008 5:08 PM
To: Law  Religion issues for Law Academics
Subject: Court enforcement of contracts, and deciding whether Protestant 
includes Mormons

Any thoughts about this case?  In principle, I think that
there's no First Amendment problem with enforcing contracts that
restrict parties' speech and religious practice.  But I wonder whether
matters are different when the contract interpretation calls for
theological decisions, such as whether Mormonism is or is not
Protestant.  (Or is it so clear that Mormonism is another religious
belief system/faith from Protestantism, broad as the latter category
may be, that there's no problem here, even though there would be a
problem with deciding whether Reconstructionist Judaism is Judaism?  How
about whether Jews for Jesus qualifies as Judaism, or Santeria qualifies
as Christianity?)

Eugene

Rownak v. Rownak, 2008 WL 4491823 (Ark.App.):

This case concerns a finding of contempt against appellant Joel Mark
Rownak for failing to follow his express agreement with appellee Lisa
Monette Rownak, his ex-wife, about the religious upbringing of their two
sons. The parties' agreement was approved by the circuit court and set
forth in its 2005 divorce decree, which awarded custody of the children
to appellant and awarded visitation rights to appellee. The following
paragraph of the divorce decree reflects the agreement and the court's
approval of it:  Based upon the express agreement of the parties that
the minor children be raised in the Protestant faith, the Court orders
that each party hereto is enjoined from promoting another religious
belief system/faith to the minor children unless both parties should
consent.

In November 2006 appellee filed a petition for change of custody or,
alternatively, for modification of visitation, and in March 2007 she
filed a petition for contempt, alleging that appellant had violated the
paragraph of the decree at issue. Both parties presented testimony and
evidence in a hearing on the petitions. The court found appellant to be
in contempt and, in its written order entered on May 18, 2007, addressed

Re: *A Mennonite Farmer is Hauled Away*

[Paul Finkelman]

I appreciate the concerns of Mr. Harms, but it is interesting that he uses the 
language of those who are complaining (gestapo type raids) without any arms 
length analysis. Gestapo raids were usually done at night; the people were not 
given the right to a lawyer, and people who defended them (like Mr. Harms) 
would often be arrested; usually the person seized was never heard from again 
or at least disappeared for many years.

Please, Mr. Harms, give us a break.  You may not like the Pa. Agriculture Dept. 
doing its job; you may even believe that individual farmers rather than the 
department of health or agriculture are fully competent to make decisions about 
the safety of food.  But, surely you can learn enough about the Gestapo to make 
a distinction between a lawful arrest of someone who is breaking a law that was 
created by democratic process, and the Gestapo enforcing the laws of Nazi 
Germany.  

It is worth nothing that for months Mr. Nolt openly broke the law (according 
the story) fully realizing what he was doing and then seems surprised when he 
is finally arrested. The only failure of law enforcement here is that Mr. Nolt 
was apparently allowed to break the law for so long.  Do you really think this 
is how the Gestapo operated?  Go read some history and find out.

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 Doug Harms [EMAIL PROTECTED] 9/15/2008 11:54 AM 
I think this article is the answer to these Gestapo type raids. They cannot
be tolerated. People should be able to buy and sell at their own risk.
Clearly, if I want to go buy something from a farmer, then I am a big enough
girl now to take care of my self, and I certainly don't need any law to tell
me how to protect myself from food. Considering the bigger picture for
population control by the UN, if drinking raw milk were SO dangerous in
reality, they would be promoting it not prohibiting it. That is the first
clue to me that raw milk must obviously be very beneficial to people. They
do not want people too healthy to overcome all the garbage in processed
foods, and whatever else they've got going on. Below:

Subject: A Mennonite Farmer is Hauled Away

http://www.fourwinds10.com/siterun_data/environment/agriculture/news.php?q=1221346248
 

*A Mennonite Farmer is Hauled Away*

On April 25, 2008, in Cumberland County, Pennsylvania, Mark Nolt, a Wenger
Mennonite (Horse and Buggy Mennonite) dairyman, threatened for months with
arrest for selling raw milk without a permit was removed from his property
by state troopers.

Jonas Stoltzfus, a friend, fellow farmer, and Church of the Brethen, was
asked by Mr. Nolt to speak for him, and said of the raid yesterday - Six
state troopers and a man with the Pennsylvania Department of Agriculture
trespassed onto his property, and stole $20-25,000 of his product and
equipment.

Mr. Stoltzfus explained that Mr. Nolt did not have a permit because he
chose to turn his permit back in because it did not cover all the products
he was selling. He felt he was being dishonest selling stuff that was not
covered by the permit. He is a man of great integrity.

According to reports from neighbors and the Farm-to-Consumer Legal Defense
Fund, several officials of the Pennsylvania Department of Agriculture
participated in the raid, and while Mark was being transported by police car
to the courthouse, PDA officials confiscated $20,000 to $25,000 worth of
dairy products and production equipment. Neighbors reported the farm had
been closed and that a large group of officials had gathered, with videos
prohibited.

Mr. Nolt was told that people had gotten sick from eating his food, but no
one ever came forward and no proof was ever offered.

This is a Gestapo raid, Jonas Stotlzfus said, complete with state
troopers, raiding a hard-working farmer selling milk to friends and
customers. And his customers ARE his friends. Mr. Nolt

Mr. Stoltzfus said of Mr. Nolt, he is not going to stop [selling raw milk]
til he is ready to stop. He is the equivalent of that little black lady in
Alabama who wouldn't go to the back of the bus. He is doing the same thing,
he won't go to the back of bus. Mr. Stoltzfus said she got arrested for
that and so did Mr. Nolt. He ignored [the threat] and kept on selling. He is
a courageous man. Mr. Stoltzfuz said Mark believes it is his right to
sell, according to the constitution, just like it was Rosa Park's right to
sit wherever she wanted on the bus. Same deal. There is nothing in the
constitution to prevent Mr. Nolt from buying and selling, especially to his
friends, Mr. Stoltzfus said.

Stoltzfus commented that Mr Sheridan of the Pennsylvania Department of
Agriculture (Stoltzfus does not have the spelling and believes he is with
the licensing division) used to work for Dean Foods and Hershey Foods, big
corporate operations

Re: Religious exemptions and sex with 16-year-old

[Paul Finkelman]

I suppose this case would force the court to either reverse Reynolds or 
conclude that RFRA does not apply to statutes that are not directly prohibiting 
religious conduct; Fischer would presumably have to argue that this faith 
required him to marry a third wife and that he must marry her before she is 
legally of age to do so.  But, Fishser's marriage was not approved by the 
Court; and does RFRA require the Court to abandon its mandate to protect 
children?  It would obviously be a cleaner challenge to Reynolds if this did 
not involve a minor.  But, as Eugene points out, the Court could avoid this by 
determining that that the age of consent law in Az fails -- but then it is not  
a RFRA case is it?

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Volokh, Eugene [EMAIL PROTECTED] 08/06/08 7:11 PM 
State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds a
statutory rape conviction of Kelly Fischer, a member of the
Fundamentalist Church of Jesus Christ of Latter-Day Saints.  Fischer was
married, and then took a second wife, Lujean, though of course she was
not recognized as a wife legally.  Lujean's daughter J.S., who was
thirteen our fourteen at the time, moved in with them; some time later
(it's not clear when) Fischer took J.S. as a third wife.  J.S. gave
birth to Fischer's daughter when she was 17, so it's clear that he had
sex with J.S. when she was 17, or even younger.  J.S. was prosecuted for
statutory rape, the age of consent in Arizona generally being 18.

Here's the complicating factor:  In Arizona, as in most other
states, sex with under-18-year-olds is not a crime if the
under-18-year-old is a spouse; and in Arizona, as in most other states,
people may marry under-18-year-olds (at least when they're 16 or older,
though perhaps even younger if there's court approval) so long as a
parent or guardian of the minor approves.  So if Fischer's marriage with
J.S. were recognized by law, then his sexual acts with J.S. wouldn't be
statutory rape (assume for now that J.S. was indeed 17, and not, say,
13, at the time of the first sexual act).

Fischer demanded an exemption from Arizona's ban on polygamy,
under the federal Free Exercise Clause, but naturally lost under Smith.
Nothing in the opinion suggests that he demanded a similar exemption
under the Arizona state RFRA-like statute, but perhaps this is because
Arizona bans polygamy (and even polygamous cohabitation) in its state
constitution.

But let's say that Fischer were in Texas, which has a state RFRA
and to my knowledge no similar state constitutional provision, and say
that he demanded an exemption under the RFRA either from the state
polygamy ban, or from state statutory rape law.  Say also that Lujean
was not already his wife, which casts some extra doubt on her
independent judgment in deciding whether J.S. would be allowed to marry
Fischer.  And say that J.S. was indeed 16 or 17 at the time of the
sexual conduct.  Protecting children from sexual exploitation, Fischer
would say, is generally a compelling interest.  But about 40 of the 50
states have an age of consent of 17 or lower, and about 30 of the 50
have an age of consent of 16 or lower.  What's more, Arizona itself
recognizes an exception for sex within a non-polygamous marriage.

Therefore, Fischer argues, applying the law to him doesn't pass
strict scrutiny.  The experience of most states, he argues, suggests
that there is no compelling interest in using the criminal law to
protect 17-year-olds or even 16-year-olds from underage sex (citing Boos
v. Barry, which used a similar argument to strike down a content-based
speech restriction under Free Speech Clause strict scrutiny); in fact,
Arizona is in the small majority of states on this score.  What's more,
Arizona itself provides an exception for 16-year-olds and 17-year-olds
who are in nonplural marriages with the defendant (as well as an
exception for 15- to 17-year-olds when they are within two years of the
defendant's age).  The law is thus either not necessary to serve a
compelling interest, or in any event underinclusive with respect to the
supposedly compelling interest.

How should we analyze this argument?  I should stress that I
don't think Fischer's case is particularly morally appealing, nor do I
think that he'll likely win under a RFRA.  I just wonder how a candid
application of RFRA would go here, and what that tells us about (for
instance) underinclusiveness analysis, and identification of compelling
interests, under RFRAs.

Eugene
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Re: Names and titles

[Paul Finkelman]

as Eugene signs his name as just Eugene --but hey, we all know him and love 
him and know is last name!

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 Volokh, Eugene [EMAIL PROTECTED] 7/23/2008 3:24 PM 
Folks:  My sense is that it usually creates a nicer tone for people
to call each other by their full names, first names, or
title-plus-last-name, rather than just by last name alone.  It also
usually creates a nicer tone for people not to talk about others'
peddl[ing] their views (whether myths or otherwise) -- substantive
arguments are of course entirely proper, but argument by pejorative term
generally is not helpful, I think.
 
Eugene
 

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RE: msnbc.com: Case of fully veiled woman roils France

[Paul Finkelman]

True enough, but France is not the US.  Their traditions and culture are really 
quite different.  Naturalization in France has always required that one becomes 
French whereas in the US we have only required knowledge (a test) and an 
oath.  You can still be something else. That is why Frankfurter's opinions in 
Gobitis and Barnette are so awful.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 Judith Baer [EMAIL PROTECTED] 7/17/2008 11:29 AM 
The case started quietly, when a Muslim woman who sheaths herself in a
head-to-toe veil was denied French citizenship because she had not
assimilated enough into this society. 
 
You know what this reminds me of? Frankfurter's explanation to FDR  ER of
his vote in GOBITIS--in a melting pot, people should give up their quaint
idiosyncratic customs (like not saluting the flag) and blend in. See Max
Freedmen, ed. ROOSEVELT-FRANKFURTER LETTERS.
 
Judy Baer

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Re: Court: Exorcism is protected by law - Faith- msnbc.com

[Paul Finkelman]

it is hard to imagine how tying a minor child down can be anything but a tort.  
Professor Lund seems to imply there is a religious exception to normal tort law 
for tying up and abusing children.  what might that be?

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Christopher Lund [EMAIL PROTECTED] 06/28/08 13:51 PM 
I read the opinions -- there are several different views in the
dissents.  How do you think these cases should be decided?  Can she
recover for just the physical injuries?  Physical and emotional ones?  
Do we just apply the regular tort concepts of false imprisonment and
battery and IIED?   Isn't there a danger that, in doing so, the jury
will pass on religious issues?

Opinions available here everybody:
Opinion of the Court:
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916.pdf
Primary Dissent:
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d1.pdf
Dissent 2: 
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d2.pdf
Dissent 3: 
http://www.supreme.courts.state.tx.us/historical/2008/jun/050916d3.pdf

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
 [EMAIL PROTECTED] 06/28/08 8:26 AM 
This decision is plainly wrongly decided.  I sincerely hope a cert petn
is being filed.  
When coupled with the cavalier return of the child victims of the FLDS,
the Texas Sup Ct has established Texas as a refuge for those who abuse
children in the name of religion.

Marci 

Marci A Hamilton
Paul R Verkuil Chair in Public Law
Benjamin N Cardozo School of Law
Yeshiva University
--Original Message--
From: Joel Sogol
Sender: [EMAIL PROTECTED]
To: Religionlaw
ReplyTo: Law  Religion issues for Law Academics
Sent: Jun 28, 2008 8:46 AM
Subject: Court: Exorcism is protected by law - Faith- msnbc.com

http://www.msnbc.msn.com/id/25423465/


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Sent from my Verizon Wireless BlackBerry
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RE: Texas exorcism case

[Paul Finkelman]

Since I often disagree with Eugene, I want to endorse his argument and analysis 
here.  It seems spot on right, and to answer his question, not missing much if 
anything.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Volokh, Eugene [EMAIL PROTECTED] 06/28/08 10:22 PM 
I appreciate the majority's concerns in this case, but the
primary dissent seems to have the better view.

The plaintiff alleges -- and the jury apparently believed her --
that she was held down against her will.  That's false imprisonment and
battery.  She also alleges that this led to emotional distress damages.
The primary dissent acknowledges that a plaintiff shouldn't be able to
recover from damages that stem from the religious character of the
experience, for instance her fear of demons or disenchantment with the
church or religion generally or whatever else.  But it reasonably
argues, I think, that the solution is to extract[] the religious from
the secular, not just dismiss the claim outright; and it argues that
such extraction was possible in this case.  [W]hile the Court points to
Dr. Helge's testimony as proof that Schubert's religious and secular
damages are inextricably intertwined, another expert, Dr. Millie Astin,
specifically stated that she could separate the two. And Schubert
testified that while she was being restrained she was afraid she 'was
being injured' and that
she 'might die'-trauma clearly associated with the act of restraint
itself. Although segregating the religious from the secular may
sometimes be difficult, it can and should be done.

The dissent's suggestion that A jury could ... be instructed to
award damages only for the mental anguish the plaintiff would have
suffered had the tort been committed by a secular actor in a secular
setting strikes me as not exactly right, for some of the reasons
mentioned in this post.  But instructing a jury that it could award
damages only for the mental anguish that stemmed from the restraint as
such, as opposed to the religious character of the restraint, sounds
like it would work fairly well (recognizing that damages calculations
are never an exact science).  The church could stress that the secular
actors here were the plaintiff's friends, who the plaintiff must have
realized were trying to help her (even if misguidedly).  The plaintiff
could stress that despite this there was a good deal of pain, that the
plaintiff feared that her leg was breaking, and that in any event
unwanted restraint -- even by friends -- is a frightening experience
that can cause long-term psychological problems.  And a jury could, I
think, focus on that and set aside other aspects of the damages, such as
plaintiff's needing extensive time to recover trust in ... spiritual
leaders, and her life-long religious faith.

Of course, there would be the risk of jury error, and of jurors'
awarding damages based on supposed spiritual harms.  But there is such
risk in any situations involving religious institutions or religious
leaders as defendants, for instance simple sexual abuse cases or fraud
cases.  It seems to me that the risk of such error shouldn't justify
denying normally available secular psychological distress damages to
someone who was harmed by nonconsensual false imprisonment and battery.
Or am I missing something here?

Eugene
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Re: The Heart of the Disagreement Among the Judges in the Texas FLDSLitigation?

[Paul Finkelman]

On the issue of Young boys -- the parents don't have an obligation after age 
18, but do before. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Douglas Laycock [EMAIL PROTECTED] 05/29/08 10:09 PM 


There is probably very little disagreement that the state can protect under age 
girls from statutory rape, and that neither parental rights nor religious 
liberty right would preclude that.  There is disagreement about the imminence 
of that danger and whether removing the girls was the only way to protect them. 

What is striking is that twelve conservative Texas Republican judges -- 3 on 
the court of appeals and 9 on the Supreme Court -- are unanimous that the state 
made no showing of imminent danger with respect to the younger children or with 
respect to the adolesceent boys.  I haven't seen the Findlaw column, but at 
least on this list, Marci does not seem to be defending their removal either.   

The press is reporting that half the children removed were under five.  The 
Supreme Court opinion says that of the 126 children represented in the 
mandamus, 117 were under age 13, 2 were adolescent boys, and the age and sex of 
the remaining nine was not in the record.  None of the children directly at 
issue were known to be adolescent girls. 

The skew to younger ages also shrinks Eugene's denominator for calculating 
pregnancy rates.  There is probably some abuse here, but we don't know how 
much, and the state's blunderbuss approach is not going to help us find out.   

There is also an eventual danger to the boys -- they may be kicked out of the 
community and abandoned in late adolescence or earlly adulthood, to preserve a 
sex ratio that will support polygamy.  The state hasn't argued that, so far as 
I know, maybe because parents have no legal obligation to support their adult 
children. 

The state's ultimate legal theory seems to be that they can take all the 
children because the religious teachings about sex and marriage are dangerous 
to children.  No imminence requirement, no conduct requirement, no need to use 
less restrictive means than removal.  The children are being groomed by being 
taught a bad religion.  The validity of that theory is the central religious 
liberty issue in the case.  But it has been unnecessary to reach any 
constitutional issues, because  that theory also clearly fails to satisfy the 
Texas statute on child removal, which explicitly requires imminence and less 
restrictive means, and may be construed to implicitly require conduct. 

Meanwhile, we have hundreds of children traumatized by removal, millions of 
dollars wasted in a chronically underfunded agency, and very little progress 
toward identifying those children in actual danger and finding a way to protect 
them. 

Quoting [EMAIL PROTECTED]:

 Eugene's analysis, though, leaves out the fact of adult men 
 impregnating the girls at the FLDS compound in Texas.   Evidence of 
 the father in a nuclear family having sex w his daughters would be 
 plenty to take the girl away.  Evidence of a high number of men 
 having sex w underage girls in a closed tightly knit community is not 
 as benign as Eugene's acct of typical teen pregnancy would suggest 
 would suggest.
 Also by focusing on only 5 girls, the amt of actual abuse is 
 significantly understated.  As I point out in my findlaw.com column 
 today, the appellate decsn was offensive in its trivialization of 
 statutory rape of 15 girls because now they are over the cutoff age 
 now.  Statutory rape is stat rape even when the girl ages.
 The most troubling aspect of both appellate decsns (and perhaps the 
 briefing by the state) in my view is the complete disregard of the 
 polygamy laws and esp as they apply to underage girls.  It is a first 
 degree felony to bring an underage wife into a polygamous marriage. 
 The state law is clear and the judicial failure to take it into 
 account is a usurpation of legislative power.

 Marci

 Marci Hamilton
 Visiting Professor of Public Affairs
 Princeton University
 Sent from my Verizon Wireless BlackBerry

 -Original Message-
 From: Volokh, Eugene [EMAIL PROTECTED]

 Date: Thu, 29 May 2008 16:22:10
 To:Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
 Subject: The Heart of the Disagreement Among the Judges in the Texas FLDS
 Litigation?


 I thought I'd pass along some ideas I blogged about today's
 Texas Supreme Court opinions about the FLDS raid (and that I also sent
 to CONLAWPROF).  Here's my thinking:

 The 3-Justice concurrence and dissent agrees with the majority
 and the court of appeals that the removal of the boys and the
 prepubescent girls was unjustified, but reasons otherwise as to the
 pubescent girls.  In particular, it points to five girls ranging in age
 from 13 to 16 who had children, were pregnant, or had

Re: Atheists on Jury Duty in Alabma

[Paul Finkelman]

I might also be unlawful under the Alabama Constitution; it is both an
establishment of religion and if Alabama has a ban on religious tests
for office holding (as the US constitution does) it would violate that
as well. 

Next thing we know the Chief Justice of Alabama will want to put the Ten
Commandments up in his courthouse, or something like that.

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 04/24/08 4:15 PM 


  Well, it's clearly unconstitutional, as you say.  Torcaso v.
Watkins (US 1961) says government can't require affirmation of belief
in God to be a notary public.  Jury member should be no different. 
And we have provided alternate forms of oath for religious objectors
since the 18th century.  Everyone gets to swear or affirm; the option
to affirm was written for Quakers, but it should be available for you
too. 

  But it might be very hard to set this up as a case a court could
decide.  Do you sue somebody for an injunction to make sure it doesn't
happen again?  Well, what are the odds you will be called again?  What
are the odds the next judge and the next pair of lawyers would react
the same way?  This seems like a pretty idiosyncratic event.  So you
might not be able to get an injunction.

  It might even be that Alabama law provides that jurors can affirm
instead of swear, and that this judge didn't know that or just ignored
it.  Or didn't think it applied to you.

  Do you sue for damages for not being on the jury?  What damages? 
Your time was given back to you.  Were you humiliated?  Suffer
emotional distress?  It has to be significant, not just a momentary
upset.  Maybe you could you sue for $1 in nominal damages as a way of
presenting the issue.  But the judge and the prosecutor are absolutely
immune from any suit for damages.  That leaves only the defense
lawyer, and he will claim that he should be immune too.  He's not even
a government actor.

  So there's a good chance that the court will never reach the merits
of your claim.

  If you use your own name, you have to be prepared for a terrific
amount of public abuse and hate mail; you will make yourself
notorious.  The court might let you sue as Jane Doe, and that usually
provides substantial protection, but people will try to figure out who
you are, and they may succeed.

  Quoting CAROL MOORE [EMAIL PROTECTED]:



 I have been rejected as a juror, just this week, after having been
selected
 and seated because, when I approached the Circuit Court Judge about
my
 inability to say the oath with so help me god at the end of it,
he asked
 the prosecutor and defense attorney to vote on it (and this is
after opening
 arguments, mind you).  I stated my willingness to serve and to talk
an
 alternative oath.  The defense attorney refused, saying he could
not have a
 juror who did not believe in god (the case was drunk  disorderly,
resisting
 arrest).  I was removed (which, if one is actually looking for way
to duck
 jury duty, this one was easy).  My question to you all, besides
being an
 obvious violation the US Constitution, is this worth pursuing?
 Carol Moore, list reader

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 posted; people can read the Web archives; and list members can
 (rightly or wrongly) forward the messages to others.




Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
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Re: Atheists on Jury Duty in Alabma

[Paul Finkelman]

ONe other thought, is this a civil rights violation based on religion?  
 I am not in the office and don't have easy access to the 1964 act but I
would bet this is a violation of the '64 act, and if jury duty is tied
to voting, does it violate the '65 voting rights act as well?

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 04/24/08 4:15 PM 


  Well, it's clearly unconstitutional, as you say.  Torcaso v.
Watkins (US 1961) says government can't require affirmation of belief
in God to be a notary public.  Jury member should be no different. 
And we have provided alternate forms of oath for religious objectors
since the 18th century.  Everyone gets to swear or affirm; the option
to affirm was written for Quakers, but it should be available for you
too. 

  But it might be very hard to set this up as a case a court could
decide.  Do you sue somebody for an injunction to make sure it doesn't
happen again?  Well, what are the odds you will be called again?  What
are the odds the next judge and the next pair of lawyers would react
the same way?  This seems like a pretty idiosyncratic event.  So you
might not be able to get an injunction.

  It might even be that Alabama law provides that jurors can affirm
instead of swear, and that this judge didn't know that or just ignored
it.  Or didn't think it applied to you.

  Do you sue for damages for not being on the jury?  What damages? 
Your time was given back to you.  Were you humiliated?  Suffer
emotional distress?  It has to be significant, not just a momentary
upset.  Maybe you could you sue for $1 in nominal damages as a way of
presenting the issue.  But the judge and the prosecutor are absolutely
immune from any suit for damages.  That leaves only the defense
lawyer, and he will claim that he should be immune too.  He's not even
a government actor.

  So there's a good chance that the court will never reach the merits
of your claim.

  If you use your own name, you have to be prepared for a terrific
amount of public abuse and hate mail; you will make yourself
notorious.  The court might let you sue as Jane Doe, and that usually
provides substantial protection, but people will try to figure out who
you are, and they may succeed.

  Quoting CAROL MOORE [EMAIL PROTECTED]:



 I have been rejected as a juror, just this week, after having been
selected
 and seated because, when I approached the Circuit Court Judge about
my
 inability to say the oath with so help me god at the end of it,
he asked
 the prosecutor and defense attorney to vote on it (and this is
after opening
 arguments, mind you).  I stated my willingness to serve and to talk
an
 alternative oath.  The defense attorney refused, saying he could
not have a
 juror who did not believe in god (the case was drunk  disorderly,
resisting
 arrest).  I was removed (which, if one is actually looking for way
to duck
 jury duty, this one was easy).  My question to you all, besides
being an
 obvious violation the US Constitution, is this worth pursuing?
 Carol Moore, list reader

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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1]
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw


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RE: Scalia and Motive

[Paul Finkelman]

Being in a realist mood, is it possible that Scalia is just totally
result oriented and says what he needs to say on a case-by-case basis to
get where he wants to get?  Just a hypothesis.

Paul Finkelman

  Quoting Brownstein, Alan [EMAIL PROTECTED]:

 At least in free exercise and establishment clause cases, I have
 never thought it was possible to reconcile what Justice Scalia says

 in his various opinions. Compare his opinion in Employment Division

 v. Smith with his dissenting opinion in Texas Monthly, one year
 earlier. I thought his opinion in the Watchtower Bible Society case

 was inconsistent with the hybrid rights language in Smith as well.

 Alan Brownstein

 

 From: [EMAIL PROTECTED] on behalf of David Cruz
 Sent: Mon 2/18/2008 6:37 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Scalia and Motive



 Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo,

 though his preferred view (as revealed in his Lukumi and Edwards v.

 Aguillard opinions) would render legislative motivation irrelevant
in
 cases of facially neutral laws?



 David B. Cruz

 Professor of Law

 University of Southern California Gould School of Law

 Los Angeles, CA 90089-0071

 U.S.A.



 

 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Douglas
 Laycock
 Sent: Monday, February 18, 2008 6:13 PM
 To: religionlaw@lists.ucla.edu
 Subject: Scalia and Motive



 I just reread Kiryas Joel getting ready for class tomorrow. 
Scalia's
 dissent insists that the law cannot be unconsitutional unless
enacted
 for a bad motive.  I had somehow not focused on this before.  This
is
 only a year after his Lukumi concurrence insisting that motive is
 absolutely irrelevant.  And of course there are similar opinions
 earlier, such as his dissent in Edwards v. Aguillard.  Does anyone
 have a theory for reconciling his Kiryas Joel opinion with the
rest?

 For those who want to refresh their recollections, here are the key

 quotes from Kiryas Joel and Lukumi.  Scalia both times.

 In order to invalidate a facially neutral law, Justice Souter
would
 have to show not only that legislators were aware that religion
 caused the problems addressed, but also that the legislature's
 proposed solution was motivated by a desire to disadvantage or
 benefit a religious group (i.e., to disadvantage or benefit them
 because of their religion.)

 The First Amendment does not refer to the purposes for which
 legislators enact laws, but to the effects of the laws enacted:
 [quoting the Free Exercise Clause].  . . .  This does not put us in

 the business of invalidating laws by reason of the evil motives of
 their authors.  Had the Hialeah City Couoncil set out resolutely to

 suppress the practices of Santeria, but ineptly adopted ordinances
 that failed to do so, I do not see how those laws could be said to
 prohibi[t] the free exercise of religion.  Nor, in my view, does
it
 matter that a legislature consistes entirely of the pure-hearted,
if
 the law it enacts in fact singles out a religious practice for
specia
 burdens.


 Douglas Laycock
 Yale Kamisar Collegiate Professor of Law
 University of Michigan Law School
 625 S. State St.
 Ann Arbor, MI  48109-1215
   734-647-9713



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713


Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
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RE: Archbishop Williams and Sharia Courts

[Paul Finkelman]

the latter might make some sense, but might also leave some people --
women especially -- deprived of civil rights; furthermore, what happens
to someone who leaves the faith?

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 02/07/08 8:04 PM 
Is the Archbishop talking about different legal rules for different
communities selected by government decision, or just about binding
arbitration (in whatever system, religious or otherwise, of their
choice) for those parties who so agree by contract?  I had assumed it
was the latter, but maybe I'm mistaken.
 
Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Thursday, February 07, 2008 4:58 PM
To: Law  Religion issues for Law Academics
Subject: Re: Archbishop Williams and Sharia Courts


This is an interesting issue that I am currently studying on a
comparative basis -- particularly in parts of Africa where you can have
all sorts of personal law (family and inheritance mostly) determined by
different systems.  In Mauritania you can have the general civil law,
Islamic law, pastoral customary law, or nomadic customary law control. 

South Africa is struggling with this now as well with its
general civil law, a large population that is Muslim, and various
indigenous practices.

I plan a trip to South Africa in 2010 to study this, in between
world cup games . . .   :)


Steve

On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote:


I love pregnant controversies like this. The Archbishop
of Canterbury has endorsed the idea of allowing, to some undefined
extent, separate legal systems apply to different religious and cultural
groups in Britain, notably Sharia law for Muslims.

News story here:
http://news.bbc.co.uk/2/hi/uk_news/7232661.stm

While the UK, like the US, supports parties' ability to
stipulate that a particular dispute may be submitted to religious courts
so long as they consent and there are no other social externalities, to
what extent can a constitutionally bound polity permit such things if
not all parties consent, or if a party withdraws consent? And to what
extent should secular courts recognize the judgments of religious courts
when the outcomes transgress certain public policies of the state? And
to what extent should the parties' agreement to apply religious law
govern an action in a secular court (and if it's like a choice-of-law
clause in a contract, how is the applicable law proven)?

One tends to think about the deference paid to
commercial arbitration under the Federal Arbitration Act, but even there
a court need not enforce an award that contravenes public policy, and
there are some rather fine distinctions drawn about when a court will
strike an arbitration clause. At the same time, courts have permitted
arbitrators to hear and decide claims under regulatory statutes like the
antitrust laws and the securities laws.

Without a written constitution, it may be difficult to
ascertain how far such deference (in the case of religious courts) could
go in the UK. Are there limits in the US beyond the limits to which
parties can make contracts?

Vance

-- 
Vance R. Koven
Boston, MA USA
[EMAIL PROTECTED] 
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--  
Prof. Steven D. Jamar   vox:
202-806-8017
Howard University School of Law fax:
202-806-8567
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC  20008
http://iipsj.com/SDJ/

In these words I can sum up everything I've learned about life:
It goes on. 






Robert Frost




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Re: alarming new law?

[Paul Finkelman]

This law shows the deep insecurity of politicians in the year before an
election.  Silly barely describes this.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 12/16/07 1:09 AM 
What a silly waste of time.

Thanks to all of you for the information.

Susan

[EMAIL PROTECTED] wrote:
 It's not a law -- it's a House resolution, which was passed 372-9 and
which reads as follows:

 Whereas Christmas, a holiday of great significance to Americans and
many other cultures and nationalities, is celebrated annually by
Christians throughout the United States and the world;

 Whereas there are approximately 225,000,000 Christians in the United
States, making Christianity the religion of over three-fourths of the
American population;

 Whereas there are approximately 2,000,000,000 Christians throughout
the world, making Christianity the largest religion in the world and the
religion of about one-third of the world population;

 Whereas Christians and Christianity have contributed greatly to the
development of western civilization;

 Whereas the United States, being founded as a constitutional republic
in the traditions of western civilization, finds much in its history
that points observers back to its Judeo-Christian roots;

 Whereas on December 25 of each calendar year, American Christians
observe Christmas, the holiday celebrating the birth of their savior,
Jesus Christ;

 Whereas for Christians, Christmas is celebrated as a recognition of
God's redemption, mercy, and Grace; and

 Whereas many Christians and non-Christians throughout the United
States and the rest of the world, celebrate Christmas as a time to serve
others: Now, therefore, be it

   Resolved, That the House of Representatives--

 (1) recognizes the Christian faith as one of the great
religions of the world;

 (2) expresses continued support for Christians in the
United States and worldwide;

 (3) acknowledges the international religious and
historical importance of Christmas and the Christian faith;

 (4) acknowledges and supports the role played by
Christians and Christianity in the founding of the United States and in
the formation of the western civilization;

 (5) rejects bigotry and persecution directed against
Christians, both in the United States and worldwide; and

 (6) expresses its deepest respect to American Christians
and Christians throughout the world.

 Attest:

 Clerk. 

 The most interesting thing about it is that it originally included one
further whereas clause, later removed for obvious reasons:

 Whereas Christians identify themselves as those who believe in the
salvation from sin offered to them through the sacrifice of their
savior, Jesus Christ, the Son of God, and who, out of gratitude for the
gift of salvation, commit themselves to living their lives in accordance
with the teachings of the Holy Bible.


  -- Original message --
 From: Susan Freiman [EMAIL PROTECTED]
   
 This just came to me from an atheists' list.  Is it true?

 Susan
 ~~`

 *PRESS RELEASE*
 *FOR IMMEDIATE RELEASE* 
 *The Council for Secular Humanism Chides Congress for Disrespecting 
 Religions
 *
 (December 14, 2007) -- Experts from the Council for Secular Humanism 
 noted with alarm the passage of H. Res. 847 in the House of 
 Representatives. This unnecessary, unwarranted, and bigoted law,
under 
 the misleading title Recognizing the Importance of Christm as and
the 
 Christian Faith passed the House with overwhelming bipartisan
support 
 It effectively undermines the sort of religious tolerance necessary
in 
 these changing times. 

 Just days ago in the midst of the Jewish Festival of Lights, four
Jewish 
 men in New York City  were attacked on the subway for replying to a 
 group of ten people who wished them a Merry Christmas with a
similar 
 greeting: Happy Hanukkah.  For this, these men were first insulted, 
 then beaten. It was a Muslim man who came to their physical defense. 

 The actions of the Congress, by passing the resolution and thus 
 expressing preference to the Christian faith over all the others 
 represented by the diverse population of these United States , 
 encourages this sort of behavior.

 The First Amendment's guarantee of religious liberty, and of the 
 nonestablishment of religion, was devised to create a secular state
in 
 which all religions would be equally tolerated and none given 
 preference. The language of the House resolution effectively
undermines 
 the design of the Founders, and creates an atmosphere where 
 non-Christians will continue to be targeted, treated like
second-class 
 citizens, and even become victims of violence like those four Jewish 
 subway riders in New York .

 Paul Kurtz , CSH chair, stated

Re: Michigan RLUIPA suit

[Paul Finkelman]

thanks Doug.  Now it makes perfect sense.  
Paul

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Douglas Laycock [EMAIL PROTECTED] 11/10/07 10:17 AM 


  In the absence of evidence that significant numbers in a local
congregation were doing what Marci describes (driving in before
sundset and parking for the entire Sabbath), the reliance on parking
regs would be pretextual.  See Orthodox Minyan v. Cheltenham Twp.
Zoning Board, 552 A.2d 772 (Pa. Comw. Ct. 1989), where the Township
mechanically applied its zoning rule of 1 parking space for every 3
seats to the Orthodox Minyan. No variance; irrelevant that most of
the Minyan walked to services.

  So the Minyan leased enough parking spaces from neighbors to meet
the formula.  Not good enough; you have to own the spaces and they
have to be adjacent to your property.  Finally the Minyan agreed to
build enough parking spaces on their own property.  Ah ha says the
Township:  all those parking spaces imply lots of traffic and you
will create a traffic problem.  Permit denied.  The court overturned
the zoning board on state law grounds.

  This is the most detailed example I know, but at the RLUIPA
hearings, there was a fair amount of testimony about deliberate
exclusion of Orthodox places of worship.  They did not all have such
happy endings.

  Quoting Paul Finkelman [EMAIL PROTECTED]:

 I am sure it must because it is late at night and I have been
traveling
 all day, and so I am fogged in, but I can't quite figure out how a
 parking regulation would be used against Orthodox Jews wanting to
build
 in the neighborhood since, as Doug points out, they don't drive to
 services.  I hope Doug can elaborate on this one.

 Paul Finkelman
 President William McKinley Distinguished Professor of Law
  and Public Policy
 Albany Law School
 80 New Scotland Avenue
 Albany, New York   12208-3494

 518-445-3386
 [EMAIL PROTECTED]
 [EMAIL PROTECTED] 11/09/07 10:54 PM 


   Where are they parked?  Around the building on their own
 property? Or around the property on public streets that must be
 shared with others?

   Reasonable parking regs generally prevail, as Ed says. But there
 are also cases where parking regs are plainly being used to get rid
 of somebody -- the most flagrant examples are Orthodox synagogues,
 where the worshipers can't drive on the Sabbath and so they never
 bring their cars at the same time.  And it is easy to imaging
parking
 regs where we might not be sure of motive, but the burden on the
 religious group is severe and the public benefit is trivial.

   Quoting Ed Darrell [EMAIL PROTECTED]:

 Unless they are worshipping cars, or unless their rites include
the

 heavy parking of cars on streets, the religious order will have to
 comply with local parking regulations.

 Where was the Thomas More Center when the Mormons in Virginia were
 fighting this issue?  (Silly question -- the Thomas More Center
 probably didn't exist prior to 1983.)

 There are safety and environmental concerns.  This is an old
zoning

 issue.  Are there special conditions for this case that might
 change
 the outcome?

 Ed Darrell
 Dallas

 Ed Brayton [EMAIL PROTECTED] wrote:   Message

http://www.journalgroup.com/Northville/6343/lawsuit-accuses-township-of-religious-harassment[1[1[1]]]

 The Thomas More Law Center  is filing suit against a Michigan
 municipality for demanding that a religious  order apply for a
 zoning
 variance because of all the cars parked at and around  their
 facility. The TMLC says this violates the RLUIPA.  Thoughts?

 Ed  Brayton
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 are
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 Douglas Laycock
 Yale Kamisar Collegiate Professor of Law
 University of Michigan Law School
 625 S. State St.
 Ann Arbor, MI  48109-1215
   734-647-9713

 Links:
 --
 [1]

/horde/services/go.php?url=http%3A%2F%2Fwww.journalgroup.com%2FNorthville%2F6343%2Flawsuit-accuses-township-of-religious-harassment
 [2]

/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw

 - End forwarded message -

 Douglas Laycock
 Yale Kamisar Collegiate Professor of Law
 University of Michigan Law School
 625 S. State St.
 Ann Arbor, MI  48109-1215
   734-647-9713

 Links:
 --
 [1]

/horde/services/go.php?url=http%3A%2F%2Fwww.journalgroup.com%2FNorthville%2F6343%2Flawsuit-accuses-township-of-religious-harassment%5B1
 [2]

/horde/services/go.php

Re: Michigan RLUIPA suit

[Paul Finkelman]

I am sure it must because it is late at night and I have been traveling
all day, and so I am fogged in, but I can't quite figure out how a
parking regulation would be used against Orthodox Jews wanting to build
in the neighborhood since, as Doug points out, they don't drive to
services.  I hope Doug can elaborate on this one.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 11/09/07 10:54 PM 


  Where are they parked?  Around the building on their own
property? Or around the property on public streets that must be
shared with others?

  Reasonable parking regs generally prevail, as Ed says. But there
are also cases where parking regs are plainly being used to get rid
of somebody -- the most flagrant examples are Orthodox synagogues,
where the worshipers can't drive on the Sabbath and so they never
bring their cars at the same time.  And it is easy to imaging parking
regs where we might not be sure of motive, but the burden on the
religious group is severe and the public benefit is trivial.

  Quoting Ed Darrell [EMAIL PROTECTED]:

 Unless they are worshipping cars, or unless their rites include the

 heavy parking of cars on streets, the religious order will have to
 comply with local parking regulations.

 Where was the Thomas More Center when the Mormons in Virginia were
 fighting this issue?  (Silly question -- the Thomas More Center
 probably didn't exist prior to 1983.)

 There are safety and environmental concerns.  This is an old zoning

 issue.  Are there special conditions for this case that might
change
 the outcome?

 Ed Darrell
 Dallas

 Ed Brayton [EMAIL PROTECTED] wrote:   Message   
http://www.journalgroup.com/Northville/6343/lawsuit-accuses-township-of-religious-harassment[1[1]]

 The Thomas More Law Center  is filing suit against a Michigan
 municipality for demanding that a religious  order apply for a
zoning
 variance because of all the cars parked at and around  their
 facility. The TMLC says this violates the RLUIPA.  Thoughts?

 Ed  Brayton
 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1]
/horde/services/go.php?url=http%3A%2F%2Fwww.journalgroup.com%2FNorthville%2F6343%2Flawsuit-accuses-township-of-religious-harassment
[2]
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw

- End forwarded message -

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1]
/horde/services/go.php?url=http%3A%2F%2Fwww.journalgroup.com%2FNorthville%2F6343%2Flawsuit-accuses-township-of-religious-harassment%5B1
[2]
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw%5B2


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RE: Mormon Student, Justice, ACLU Join Up

[Paul Finkelman]

The choice issue, at least for me, is not about being a neo-atheist,
since I am not one.  The issues here is seems is that the student does
have choice to not do the mission.  As I understand it not all Mormons
do; and no one has answered the question as to the timing of the
mission. MUST he do it at a certain age.  If not, then there is a great
deal of choice.  He can choose to go to college and then do the mission.
 He can choose to do the mission and then go to college.  I assume, for
example, that Mormons attend West Point or the other service academies
and that they do not leave school for a year to do a mission.

Try this, suppose instead of being in regular university the student was
at a service academy and therefore a member of the military -- which is
a choice.  And then asks for a leave to go on a mission.   Suppose he is
not a student but enlists at 17 or 18, serves until 19 and as he is
about to be shipped to Iraq  says I need a leave for a year.  I don't
think he gets it and I don't see how that would be a necessary
accommodation of religious practice.

I have never suggested people are irrational in their belief and I
find David's suggestion that I have to be way over the top. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/05/07 9:41 AM 
It does seem to me that one of the most compelling arguments in favor of
religious freedom is the recognition that religious belief is not simply
a matter of choice--like deciding whether or not to join a fraternity or
sorority.  As Calvin and Paul suggested, it is a product of grace.  That
does not mean that people of faith are irrational with respect to the
theology that grows out of that belief, it does mean that faith touches
something much deeper and more profound.
 
That said, I think the evangelical fervor displayed by the neo-atheists
(as E.J. Dionne so aptly labels them) demonstrates that this religious
connection can attach to a materialist ideology as well as a
transcendentalist one.  The mistake Harris and company make is in
thinking that their choices are purely rational and that everyone should
believe exactly as they do.  (Sounds like some religious fundamentalists
to me.)
 
In this sense, I think the issue does touch significantly on religion
and law.
 
David


From: [EMAIL PROTECTED]: Wed, 5 Sep 2007 08:58:10 -0400Subject: Re:
Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu

I'd welcome an on-list discussion of this matter, with Eugene's
permission of course.Bobby  Robert Justin LipkinProfessor of
LawWidener University School of LawDelawareRatio Juris, Contributor: 
http://ratiojuris.blogspot.com/Essentially Contested America,
Editor-In-Chief http://www.essentiallycontestedamerica.org/


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RE: Mormon Student

[Paul Finkelman]

 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.

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Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
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RE: Mormon Student, Justice, ACLU Join Up

[Paul Finkelman]

But this does not really work. CO status prevents the gov. from forcing
you to violate your faith; holding a scholarship to exercise your faith
or your voluntary support for your faith is different. CO status also
required alternative service.  The analogy here would be that you have
CO status, but have no obligation to serve (in say a hospital) AND on
top of that, you get GI Bill benefits.  This issue is giving a benefit
(scholarship) to someone who otherwise is not qualified because he
voluntarily dropped out of school to do something else. 

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 08/30/07 2:14 PM 
Isn't this analogous to the conscientious objector cases where sincere
commitment should determine the exemption?  David

 Subject: RE: Mormon Student, Justice, ACLU Join Up Date: Thu, 30
Aug 2007 10:49:38 -0700 From: [EMAIL PROTECTED] To:
religionlaw@lists.ucla.edu  A quick question: Say the Mormon student
wins, on a Sherbert-like rationale. Another student wants a similar
exemption on the grounds that he feels a religious motivation to take
two years off to meditate, or to make money to help support his family,
or to fulfill what he sees as God's command to step back from formal
education and take time to find the meaning of life. Assume that the
student's religious motivation for this is found to be sincere.   I
take it that he'd have to be treated the same as the Mormon, right? I'm
not saying that this is a particularly horrible result, but I just
wanted to explore what the result would end up being.  Eugene
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RE: Mormon Student, Justice, ACLU Join Up

[Paul Finkelman]

Doug:  

I understand that he is not asking for the money to take with him. The
CO analogy does not work because the CO asks not to have to do something
but does not ask the gov. to hold resources for him.  Nor does the CO
ask for a benefit from the government that is available to others who
act as the gov. wants.  Here the student seeks a benefit  that no one
else claims, rather than to be released from an obligation that would
harm his faith.   Here the student asks for the right to have resources
held for him while he does something he chooses to do.  That is why the
CO analogy does not work

I wonder if there was also something sort-of fraudulent about applying
for the scholarship if he knew all along he was going to want to take a
leave from it.  If you know you are not going to take it, why apply? My
problem is that  if the scholarship allows you to defer for whatever
reason -- some schools do that -- the of course he gets it and gets the
right to defer.  But this it not how the state program works.   He is
asking that he defer when others cannot because he chooses to go on his
mission; if he knew in advance that he was planning to go on his mission
then he should have applied for the scholarship AFTER he came back from
his mission.  Otherwise, the state must tie up scholarship money for him
and not use it for other students who are ready to take it now. 

If the scholarship is only available for the year after you graduate
from college, then perhaps there is a claim that this is unfair to
Mormons who cannot take the scholarship and do their mission.  On the
other hand, and here I need some factual background:  1) is there an
absolute obligation that he do the mission, or is it purely voluntary;
2) must he do it at age 18 or 19? Or can he do his mission after
college? 

If it is voluntary, or can be done at any age, then I don't see why the
state should tie up scholarship money for someone who chooses to do
something other than take the scholarship or do government service --
the military -- or public service.  

Suppose, for example, a student wants to eventually be a translator and
says, I want you to hold my scholarship while I travel around France for
 a year to improve my French.  Or to put it in a religious context, the
student wants to some day go into the ministry and asks for an exemption
so he can go to Israel learn Hebrew before going to college and then on
to divinity or rabbinical school.  The possibilities of exemptions seem
endless -- all worthy -- some tied to religion, others not.  But they
would all require that state funds be reserved and held for future
scholarship; that the state spend significant resources granting and not
granting exemptions.  

It seems to me that life is a series of choices.  We all make them. It
is also about limited resources.  I would have loved to take a year off
between high school and college.  But, I would probably have lost my
scholarship.  Life is about choices.  

If I am missing something there in the facts, let me know.  

Paul

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/03/07 2:31 PM 


  Paul, I think we have different understandings of the facts.  He
doesn't want to be paid the cash value of his scholarship while he
goes on his mission; that claim would be absurd.  He doesn't want to
qualify for the scholarship on his return because of, or on account
of, his having served a mission. He wants to claim a scholarship for
which he has already qualified on neutral and secular grounds, and
defer the use of that scholarship so that he does not lose it because
he went on his mission after the scholarship was awarded.

  Quoting Paul Finkelman [EMAIL PROTECTED]:

 But this does not really work. CO status prevents the gov. from
forcing
 you to violate your faith; holding a scholarship to exercise your
faith
 or your voluntary support for your faith is different. CO status
also
 required alternative service.  The analogy here would be that you
have
 CO status, but have no obligation to serve (in say a hospital) AND
on
 top of that, you get GI Bill benefits.  This issue is giving a
benefit
 (scholarship) to someone who otherwise is not qualified because he
 voluntarily dropped out of school to do something else.

 Paul Finkelman
 President William McKinley Distinguished Professor of Law
  and Public Policy
 Albany Law School
 80 New Scotland Avenue
 Albany, New York   12208-3494

 518-445-3386
 [EMAIL PROTECTED]
 [EMAIL PROTECTED] 08/30/07 2:14 PM 
 Isn't this analogous to the conscientious objector cases where
sincere
 commitment should determine the exemption?  David

 Subject: RE: Mormon Student, Justice, ACLU Join Up Date: Thu,
30
 Aug 2007 10:49:38 -0700 From: [EMAIL PROTECTED] To:
 religionlaw@lists.ucla.edu  A quick question: Say the Mormon
student
 wins, on a Sherbert

Re: Religion Driving?

[Paul Finkelman]

It actually sounds like she ought to seek help have the chip removed
from her head before it does more damage to her.  This reminds me of the
District Court Case involving, if I remember correctly, The Church of
the Boo Hoo.  The judge there called the claims of the defendant to be
goofy nonsense.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/02/07 5:21 AM 
VBG

I'm surprised the social workers aren't taking her child away.

Susan

Doug Harms wrote:

http://www2.ljworld.com/news/2007/sep/01/unusual_hearing_follows_traffic_stop/
  
 I would enjoy hearing your comments on this one as my operators permit

 expires next year and I would like to avoid geting the real ID with 
 the computer chip GPS tracking device also.
  
 Sincerely,
  
 Doug
 the chosen and faithful
 Church of the Golden Road



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Re: Mormon Student, Justice, ACLU Join Up

[Paul Finkelman]

Isn't it possible to argue that government service (the military) and
community service are fundamentally different then just wanting to go
off and spread your faith? You might argue that selling the faith is
no different than selling any other product and the university can say
we do not allow this.  If the student wanted to go work in religiously 
based hospital that would be educational community service but
preaching door-to-door is no different than selling knives or magazine
subscriptions door-to-door.  There is no educational value to it, and
no community service to it.  I do not mean to offend anyone by these
analogies, but rather to argue that community service and military
service (a form of community service) are really different than the work
of the missionary.  What does the school say to the student who says, I
want to take four years off to go study at the feet of my 'holyman' or
'holywoman,' but make sure you save my place in the class and have my
scholarship ready when I return.  Or the student who says, I need to
drop out and sell things door-to-door to get some money, but hold my
place in the class and my scholarship, because if you don't, you are
establishing the Mormons who are selling their religion door-to-door,
but their place in the class and their scholarhip will be waiting for
them.

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 08/30/07 11:00 AM 


  Even Sandy has the instinct to distinguish religious obligation
from all other religious motivations, however strong.  That's a
mistake, and leads to a wholly unworkable rule and absurd results. On
remand in Witters v. Wash,. Dept. of Services for the Blind, the
Supreme Court of Washington said that becoming a minister is not an
exercise of religion, because it is not mandatory. Obviously not
mandatory, because most people never do it. And there is a Second
Circuit case in 1980 or thereabouts, Brandon v. some school board,
that says that Christian prayer is not an exercise of religion
because it is not mandatory at any particular time. But Muslim prayer
at the five required times per day would be an exercise of religion.

  In the case at hand, given that the U grants leaves of absence for
community service and military service, it's not clear that the
requested solicitude for Mormon missions is so special.

  Quoting Sanford Levinson [EMAIL PROTECTED]:

 Doesn't the question boil down to whether the school can put ANY
 restraints on the desire to take a couple of years off?  If,
argendo,
 it can, then I don't understand why the Mormon gets special
 solicitude, given that it's not an obligation, as distinguished
from
 Sherbert.  Whether the school's policy is wise is a separate
question.

 Sandy


Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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Re: Muslim Policewoman Barred from Wearing Khimar on the Job:

[Paul Finkelman]

It strikes me that her claim is not like Goldman's (which might be the
analogy that comes to mind), in that he wanted to wear something (a
skullcap under his uniform hat) that would not be visible to anyone most
of the time; the dissenters in that case made a strong argument that his
violation of the military rules was insignficant and could not affect
the military in any meaningful way.  It is also worth noting that an
Army Captain is likely to deal only  with people in the military, while
a police officer deals with the general public, which makes neutrality
all the more important.  How  far, one wonders, should one take this
argument.  Could an Amish Man claim the right to be a police officer in
Pennsylvania but not be forced to drive or ride in a squad car?  Would a
Quaker officer refuse to carry a weapon?  Could a male Orthodox Jewish
officer refuse to have a female partner in his squad car?  The demands
for special treatment based on religion might be endless.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 06/13/07 7:51 PM 
FYI, in case you're interested. 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Wednesday, June 13, 2007 4:50 PM
To: [EMAIL PROTECTED]
Subject: [Volokh] Eugene Volokh: Muslim Policewoman Barred from
WearingKhimar on the Job:

Posted by Eugene Volokh:
Muslim Policewoman Barred from Wearing Khimar on the Job:
http://volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#118177859
7


   The khimar is a headpiece ... which covers the hair, forehead, sides
   of the head, neck, shoulders, and chest, but not, at least in this
   instance, the face.

   Philadelphia Police Department Directive 78 apparently prescribes a
   [1]uniform uniform, with no exceptions for any religious apparel or
   any religious symbols. The case suggests that the uniform requirement
   is broad enough to exclude ashes on the forehead on Ash Wednesday,
and
   therefore basically any non-uniform symbols.

   Police officer Kimberlie Webb claimed that Title VII of the Civil
   Rights Act of 1964 required the city to accommodate her religious
   practice by exempting her from the strict uniformity requirement, and
   letting her wear the khimar. Title VII does require employers to
   provide exemptions for employees whose religions conflict with
   generally applicable work rules, but not when granting such an
   exemption would create an undue hardship for the employer. Courts
   have set the undue hardship bar pretty low, so that anything more
   than a de minimus cost would constitute an undue hardship that the
   employer need not bear.

   The court [http://howappealing.law.com/WebbVsPhiladelphia.pdf] held
that requiring a religious exemption from Directive 78
   would indeed create an undue hardship:

 The Directive's detailed standards with no accomodation for
 religious symbols and attire not only promote the need for
 uniformity, but also enhance cohesiveness, cooperation, and the
 esprit de corps of the police force. Prohibiting religious symbols
 and attire helps to prevent any divisiveness on the basis of
 religion both within the force itself and when it encounters the
 diverse population of Philadelphia Police Directive 78 is
 designed to maintain religious neutrality, but in this case in a
 para-military organization for the good not only of the police
 officers themselves but also of the public in general.

References

   1. http://itre.cis.upenn.edu/~myl/languagelog/archives/004591.html

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RE: Muslim Policewoman Barred from Wearing Khimar on the Job:

[Paul Finkelman]

Is police work different from schools?  Imagine the religious garb is a
necklace or chain (some faiths have such things, I believe); can police
dept. have a legitimate rule that says no necklaces because they are a
danger in fighting with criminals, which does happen?  Can she insist on
her head cover if it interferes with riot helmet?  Or if she is on the
fire department and it complicates fire gear?

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 06/13/07 11:00 PM 
I think these dual-role cases are often difficult.  Vis a vis the
public, Webb is the government, barred by the Establishment Clause from
practicing religion.  But vis a vis her governmental employer, Webb is
an individual, affirmatively entitled with rights to practice religion
under the Free Exercise Clause (and Title VII).  These competing
concerns produce a number of hard cases.
 
But I find this particular case to be fairly easy.  Webb's exercise of
religion does not interfere with her job performance (unlike the Amish
man or Quaker officer), and it imposes no burden on any third parties
(unlike the male Orthodox Jewish officer).  Ultimately, barring
religious individuals from wearing religious symbols like the khimar or
yarmulke will mean that any individual who refuses to convert or cover
will be effectively barred from governmental employment.  And in many
lines of work we are talking about here (i.e., the police force, the
public schools, etc.), the government is the largest employer -- denying
Webb's claim here would not only strip her of her current employment,
but it may mean putting her out of her chosen field of work altogether
(as long as she wants to maintain her religious views).
 
Chris



 Date: Wed, 13 Jun 2007 21:10:12 -0400 From: [EMAIL PROTECTED] To:
[EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: Re: Muslim
Policewoman Barred from Wearing Khimar on the Job:  It strikes me that
her claim is not like Goldman's (which might be the analogy that comes
to mind), in that he wanted to wear something (a skullcap under his
uniform hat) that would not be visible to anyone most of the time; the
dissenters in that case made a strong argument that his violation of
the military rules was insignficant and could not affect the military
in any meaningful way. It is also worth noting that an Army Captain is
likely to deal only with people in the military, while a police officer
deals with the general public, which makes neutrality all the more
important. How far, one wonders, should one take this argument. Could
an Amish Man claim the right to be a police officer in Pennsylvania but
not be forced to drive or ride in a squad car? Would a Quaker officer
refuse to carry a weapon? Could a male Orthodox Jewish officer refuse
to have a female partner in his squad car? The demands for special
treatment based on religion might be endless.   Paul Finkelman
President William McKinley Distinguished Professor of Law and Public
Policy Albany Law School 80 New Scotland Avenue Albany, New York
12208-3494  518-445-3386  [EMAIL PROTECTED] 
[EMAIL PROTECTED] 06/13/07 7:51 PM  FYI, in case you're
interested.   -Original Message- From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED] Sent: Wednesday, June 13, 2007 4:50 PM To:
[EMAIL PROTECTED] Subject: [Volokh] Eugene Volokh: Muslim
Policewoman Barred from WearingKhimar on the Job:  Posted by Eugene
Volokh: Muslim Policewoman Barred from Wearing Khimar on the Job:
http://volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#118177859
7   The khimar is a headpiece ... which covers the hair, forehead,
sides of the head, neck, shoulders, and chest, but not, at least in
this instance, the face.  Philadelphia Police Department Directive 78
apparently prescribes a [1]uniform uniform, with no exceptions for any
religious apparel or any religious symbols. The case suggests that the
uniform requirement is broad enough to exclude ashes on the forehead on
Ash Wednesday, and therefore basically any non-uniform symbols. 
Police officer Kimberlie Webb claimed that Title VII of the Civil
Rights Act of 1964 required the city to accommodate her religious
practice by exempting her from the strict uniformity requirement, and
letting her wear the khimar. Title VII does require employers to
provide exemptions for employees whose religions conflict with
generally applicable work rules, but not when granting such an
exemption would create an undue hardship for the employer. Courts
have set the undue hardship bar pretty low, so that anything more
than a de minimus cost would constitute an undue hardship that the
employer need not bear.  The court
[http://howappealing.law.com/WebbVsPhiladelphia.pdf] held that
requiring a religious exemption from Directive 78 would indeed create
an undue hardship:  The Directive's

Re: FW: Texas legislature adds under God to Texas flag pledge

[Paul Finkelman]

alternatively, Texas admission can be seen as allowing for future slave
states (up to 4 more states of Texas) to match future free states. At
the time of Texas annexation, there were only two more territories open
to slavery:  Indian Territory (present-day Oklahoma) and Florida.  But,
the rest of the Louisiana Territory would eventually yield Iowa, Minn.
S. Dakota, N. Dakota, Montana, Kansas, and Nebraksa. In addition
Wisconsin, from the Old Northwest Territory, was still not yet a state. 
Thus, rather than being against the spirit of the Missouri Compromise,
allowing 5 states to come out of Texas would have allowed for orderly
admission of slave and free states.

Be interesting imagine what the 5 states right now would look like?  At
least one or two would have hispanic majorities.  And a third might have
a black/hispanic majority.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 05/21/07 4:15 PM 


  Off topic but short:  The Texas Pledge may say one and
indivisible, but the Texas admission act says Texas can be divided
into five states.  At times, Texas politicians have claimed that is a
unilateral right -- that Texas can divide itself and order up 8 more
desks in the Senate.  That doesn't make much sense, and would have
wildly undermined the Missouri compromise practice of matching new
slave states with new free states.  But if it means only that
Congress and Texas jointly could divide the state, it adds nothing to
what's already in the Constitution.  Maybe it just signaled that
division was in contemplation.

  Quoting Scarberry, Mark [EMAIL PROTECTED]:

 Forwarded to the list with Richard Winger's permission...


 Mark S. Scarberry
 Pepperdine University School of Law


 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of
Richard
 Winger
 Sent: Monday, May 21, 2007 7:39 AM
 To: [EMAIL PROTECTED]
 Subject: Texas legislature adds under God to Texas flag pledge

 While looking for news about the Texas legislature's pending bill
on
 voter I.D., I ran across a news item that both houses of the Texas
 legislature passed a bill adding under God to the Texas pledge of
 allegiance.  I hadn't realized that Texas schoolchildren take 2
pledges
 each morning.  The Texas pledge will probably say, Honor the Texas
 flag; I pledge allegiance to thee, Texas, one state under God, one
and
 indivisible.
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 posted; people can read the Web archives; and list members can
 (rightly or wrongly) forward the messages to others.




Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1]
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Re: Falwell: Not Necessarily The Person That You Think

[Paul Finkelman]

This is from Slate.  The condemnations of Falwell from people like Senator 
McCain illustrate that in fact he practiced a politics of hate and his desire 
to eliminate all public schools, his attacks on Jews, Moslems and others were 
in fact the practice of a kind of constitutional politics in the streets.  He 
was very much a constitutional player and it is important not to gloss over 
the games he played.

Paul Finkelman


chatterbox

Jerry Falwell's Hit Parade
The right's holy fool.
By Timothy Noah
Posted Tuesday, May 15, 2007, at 6:56 PM ET

God, they say, is love, but the Rev. Jerry Falwell, who died May 15, hit the 
jackpot trafficking in small-minded condemnation. The controversies Falwell 
generated followed a predictable loop. 1) Falwell would say something hateful 
or clownish about some person or group associated with liberalism. 2) A public 
outcry would ensue. 3) Falwell would apologize and retract the offending 
comment. 4) Falwell would repeat the comment, slightly rephrased.

For 20 years, evangelicals have chided the mainstream media for treating 
Falwell's ghastly pronouncements as news; Falwell, they often confide in 
private, ceased being a significant figure well before he left his signature 
political organization, the Moral Majority, in 1987. If so, someone forgot to 
tell Sen. John McCain, R.-Ariz., who as a presidential candidate in 2000 
condemned Falwell's intolerance (The political tactics of division and slander 
are not our values, they are corrupting influences on religion and politics, 
and those who practice them in the name of religion or in the name of the 
Republican Party or in the name of America shame our faith, our party and our 
country) but last year, as a presidential candidate positioning for 2008, made 
peace with Falwell and gave a commencement address (We have nothing to fear 
from each other) to the 2006 graduating class at Falwell's Liberty University. 
On news of Falwell's death, McCain said in a statement, Dr. Falwell was a man 
of distinguished accomplishment who devoted his life to serving his faith and 
country.

Nonsense. He was a bigot, a reactionary, a liar, and a fool. Herewith, a 
Falwell sampler.

On Sept. 11: The abortionists have got to bear some burden for this 
because God will not be mocked. And when we destroy 40 million little innocent 
babies, we make God mad. I really believe that the pagans, and the 
abortionists, and the feminists, and the gays and the lesbians who are actively 
trying to make that an alternative lifestyle, the ACLU, People for the American 
Wayâ€all of them who have tried to secularize Americaâ€I point the finger in 
their face and say 'you helped this happen.' 

On AIDS: AIDS is the wrath of a just God against homosexuals.

On homosexuality: I believe that all of us are born heterosexual, 
physically created with a plumbing that's heterosexual, and created with the 
instincts and desires that are basically, fundamentally, heterosexual. But I 
believe that we have the ability to experiment in every direction. 
Experimentation can lead to habitual practice, and then to a lifestyle. But I 
don't believe anyone begins a homosexual.

On Martin Luther King Jr.: I must personally say that I do question the 
sincerity and nonviolent intentions of some civil rights leaders such as Dr. 
Martin Luther King Jr., Mr. James Farmer, and others, who are known to have 
left-wing associations.

On Martin Luther King Jr., four decades later: You know, I supported 
Martin Luther King Jr., who did practice civil disobedience.

On public education: I hope I live to see the day when, as in the early 
days of our country, we won't have any public schools. The churches will have 
taken them over again, and Christians will be running them.

On the separation of church and state: There is no separation of church 
and state.

On feminists: I listen to feminists and all these radical gals. ... These 
women just need a man in the house. That's all they need. Most of the feminists 
need a man to tell them what time of day it is and to lead them home. And they 
blew it and they're mad at all men. Feminists hate men. They're sexist. They 
hate men; that's their problem.

On global warming: I can tell you, our grandchildren will laugh at those 
who predicted global warming. We'll be in global cooling by then, if the Lord 
hasn't returned. I don't believe a moment of it. The whole thing is created to 
destroy America's free enterprise system and our economic stability.

On Bishop Desmond Tutu: I think he's a phony, period, as far as 
representing the black people of South Africa.

On Islam: I think Mohammed was a terrorist. I read enough of the history 
of his life, written by both Muslims and non-Muslims, that he was a violent 
man, a man of war.

On Jews: In my opinion, the Antichrist will be a counterfeit of the true 
Christ, which means that he will be male and Jewish, since Jesus was male

RE: Falwell: Not Necessarily The Person That You Think

[Paul Finkelman]

One more difference is this:  Williams was tolerant of those he
disagreed with and welcomed such people into the community.  It is hard
to imagine Williams asserting that the Antichrist would be a Jew;
Williams was tolerant of all faiths and believed the government should
not be in the business of telling people what to believe or in promoting
religion.   Falwell opposed the very idea of separation of Church and
State; Williams invented it.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 05/17/07 11:15 AM 
In partial response to one of Professor Horwitz's interesting questions:
It is certainly true that Roger Williams was concerned to protect the
Garden of the Church from the wilderness of the world. That is why
he insisted on a wall or hedge of separation between the two. But like
Falwell, he had no problem with governments legislating morality.
Although he believed that the state must have nothing to do with the
first Table (matters of faith), he favored legislation that reflected
the moral commitments of the second Table. And like Falwell, Williams
had no problem with religious people being active in the political arena
(as Gov. Williams certainly was). Where Williams would part company with
Falwell is on the question of state invocation/appropriation of God. Any
state action in God's name was, for Williams, blasphemy. He considered
Christendom to be the filthiest word in the English language because
of the corruption of the Gospel that resulted from the mixture of church
and state. To the extent that Falwell rallied people of faith (and
others) to work for a society and laws that reflect their moral vision,
he was acting out of a long tradition of religious involvement in
American politics. But when Falwell advocated a Christian America in
ways that would entangle church with state, he not only parted company
with Williams (and the original Baptist commitment to separation), he
also (in my view) threatened our arrangement in religious liberty.
Charles Haynes, First Amendment Center



From: [EMAIL PROTECTED] on behalf of Paul Horwitz
Sent: Thu 5/17/2007 9:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Falwell: Not Necessarily The Person That You Think



Pace Paul and Susan, the question is whether such a discussion, which
takes
place over the body of the deceased, as it were, is likely to elicit any
actual discussion of law and religion issues, even broadly construed, or
whether it will devolve into a simple trading of barbs over whether
Falwell
himself was a good or bad man, or over the political views of the Moral
Majority.  I confess that I thought that Jim Henderson's original email,
although well-intended, was unlikely to lead to such a discussion, and
should best have been passed over in respectful silence by the rest of
the
list.  Not much I have seen since on the list has led me to conclude
otherwise.

Now, one could use the occasion to discuss matters of more moment to the
list.  I could think of several such questions.  First, what was more
relevant to the growth of the movement that Falwell spearheaded: the
Court's
rulings in cases such as Roe v. Wade, or its rulings in cases involving
the
application of antidiscrimination laws to private schools and
universities? 
Was the broader moral component of the MM, including advocacy on issues
like
abortion, its wellspring, or was it simply part of a decision to focus
on
issues that best conduced to coalition-building among disparate
religious
and ideological groups?

Second, and I think related to the first question, is this: For a time
in
the 1970s, Falwell advocated that evangelical Christians retire from the
political fray and concentrate on prayer and the formation of a more
perfect
religious community.  That position has its roots as far back as Roger
Williams' concern that the garden of religion would be corrupted by the
wilderness of politics: not that separation (voluntary or legal) was
necessary to protect politics from religion, but in order to protect
religion from politics, in the sense that religious involvement in
politics
would corrupt the religious participants.  It continues to find
occasional
echoes in calls for religious retirement from active involvement in
politics
from folks like David Kuo.  Falwell obviously ultimately took a
different
route.  But which was the right route?  Were the MM and other such
groups
salutary for both religion and politics, or is there a genuine
*spiritual*
concern about the corrupting effects on religion of political
involvement? 
And even so, is that longstanding concern one that has mandatory
implications for the Establishment Clause, or is it merely a statement
about
the risks of voluntary participation in politics by religious
individuals,
and one that perforce is for religious individuals

Re: Falwell: Not Necessarily The Person That You Think

[Paul Finkelman]

This story shows that Falwell could be strategic and intelligent.  Good
thing the woman wasn't selling teletubby dolls or trying to assert her
constitutional right to control her own body.  What is the point of this
story, to show that he used guile and dishonesty (make friends with
someone so you can undermine her business) and that this is something
you should praise?  It may not be polite to speak ill of the dead, but
surely we should not allow false praise just because someone who was
deeply hateful to others is no long alive.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 05/16/07 4:19 PM 
Shortly after Lee vs. Weisman, Jerry Falwell, two separationists, and I 
were 
invited to participate in a debate that was a feature of the annual  
convention of the Virginia Bar Association.  In addition to the
opportunity  to enjoy 
a visit to Williamsburg, it was a once in a lifetime opportunity to 
meet 
Falwell.
 
To facilitate the debate, the VBA arranged for a private luncheon
between  
the four of us.  And in that luncheon I got an insight into Falwell that
 has 
served as a balance to all the rancor that has been thrown toward him as
a  
consequence of his very public stances.
 
It seems that, as a drove to Thomas Road one day, he noticed a sign
being  
erected in front of a small home.  The sign proclaimed the opening of a 

Palmistry shop.
 
Folks who think they know Falwell from his public stances, me
included,  
may think that he would have sprung into action by organizing public
protests,  
etc.
 
He didn't.
 
When he got to work, he called for the junior-most pastor on the staff
at  
Thomas Road.  When the young associate appeared, Falwell slipped him
twenty  
dollars and instructed him to go get his palm read, meet the owner and
develop a  
relationship.
 
Ultimately, the woman, through that friendship, came to faith in Christ,
 
closed her shop, and pursued further education . . . ultimately becoming
a  
licensed counselor . . . something that she had obviously had a penchant
for  
previously.  
 
Jim Henderson
Senior Counsel
ACLJ



** See what's free at
http://www.aol.com.

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RE: Falwell: Not Necessarily The Person That You Think

[Paul Finkelman]

much of Falwell's life was dedicated to undermining the establishment
clause, and indeed quite openly working for the establishment of his
faith as the official faith of America; it seems to me that any
discussion of his career is in the end a discussion about constitutional
law, unless Eugene, Will, and Sandy somehow think that on law, and
especially con law, is only about legal cases. If that is so then we
should just discuss Hustler.  

I have always wondered why Falwell (or any of those in his church) were
reading Hustler in the first place.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 05/16/07 10:28 PM 
On this one I tend to agree with Will (unless we want to get into a
discussion of Falwell v. Hustler, one of the shining lights of our
contemporary jurisprudence!).
 
sandy



From: [EMAIL PROTECTED] on behalf of Will Linden
Sent: Wed 5/16/2007 8:57 PM
To: Law  Religion issues for Law Academics
Subject: Re: Falwell: Not Necessarily The Person That You Think



   OK, what are the LEGAL implications of Falwell's death? Or will the
list
just become all-argue-about-Fawell, all the time?


Will Linden  [EMAIL PROTECTED]
http://www.ecben.net/
Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y
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Re: Indiana License Plates

[Paul Finkelman]

I would bet it is because that is the national motto and it is
patriotism

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 03/23/07 12:10 AM 
Specialty plates cost money;  But not if you want to proclaim your  
religiosity on the rear bumper of your car in Indiana.

http://fauxrealtho.com/2007/03/22/in-god-indiana-trusts/

The author brings up a very good point:  Indiana has a number of  
specialty license plates available, but the In God We Trust plates  
don't carry the extra fees that all the others do.  Why should those  
who identify with religion do so at taxpayer's expense?

It smacks of establishment of religion, to me.

Jean Dudley


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Re: What War on Christmas? ACLU Fights for Christmas Tree!

[Paul Finkelman]

on the ACLU reprenting Chritinians -- I am not where I can do the
research but I would assume the ACLU was amicus if not actually lead
counsel in many Jehovah's Witnesses cases (Barnette I think) and the
unemployment compensation cases involving 7th Day Adventists.  I am also
pretty certain that plaintiffs in Engle v. Vitale included Christians

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
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RE: Request by William Janssen

[Paul Finkelman]

** High Priority **

A little self-serving, but,
Paul FInkelman, ed., RELIGION AND AMERICAN LAW (Routledge) is a great
resource for teaching Religion and Law.  

Is an encyclopedia that covers almost every topic and case on religion,
including a good deal of historical material.  The volume (about 600
pages) includes essasys by a number of people on this list, including
Mike McConnell, Doug Laycock, Bill Marshall, Rod Smith, Mark Tushnet,
Nadine Strossen, Tom Berg, Angela Carmella, Michael Kent Curtis, Alan
Brownstein, Normon Dorsen, Sandy Levinson, Dan Conkle, Thomas Curry, the
late Leonard Levy, Davison Douglas, and Joanne Brandt

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 12/08/06 5:29 PM 
Any book by Leonard W. Levy is good, but especially The Establishment
Clause: Religion and the First Amendment.  Very well researched 
footnoted.
Makes for great group discussion.

V. Carol Moore
 William Janssen wrote:
 Good afternoon.

   I am picking up a Religion  the Law course for the coming 
 semester, and would welcome any suggestions on casebooks.  Any 
 thoughts appreciated.

   Thank you.

   Bill Janssen

   **William M. Janssen  |  **Assistant Professor of Law

 /*/Charleston/*//*/ School of Law  /*/|  81 Mary Street  | 
 Charleston, South Carolina 29403

 843.329.1000 x2442  |  //fax - 843-853-2519//

 [EMAIL PROTECTED]



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Re: Victory for Military Chaplains Who Pray In Jesus Name

[Paul Finkelman]

Brad Pardee writes:

It sounds to me very much like the Navy has, in essence, said that a
person 
can only be a chaplain if they act as if they don't actually believe 
anything.  That doesn't sound like what 200+ years worth of American 
fighting men and women were willing to die to defend.

There is a difference between belief and forcing soldiers and sailors to
listen to prayers that are offensive to them.  The Chaplain was free to
believe anything he wants; and to pray privately with whatever word or
language he choses; he was not free to impose his beliefs on others. 
That is also what freedom is about. 

 

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Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
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Re: Victory for Military Chaplains Who Pray In Jesus Name

[Paul Finkelman]

Sounds very much like someone tooting his own horn?  Is excessive pride
also a sin?  

One can only wonder how G-d will respond to someone who brags about his
work to make outcasts of gay members of the human family.  Perhaps the
Chaplain should try marching a mile or two in the boot of a gay sailor
or soldier.

I am no expert on the chaplain's faith, but have spent a great deal of
my life studying religion and this is the first time I have ever heard a
Christian assert that praying  fomr the Book of Psalms compromised a
Christian's faith.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Gordon James Klingenschmitt [EMAIL PROTECTED] 10/02/06 12:11
AM 
Of course, selfishness is an abhorrent sinmuch to be
despisedplease forgive me if anyone supposes my zeal is based in
selfishnessI shall certainly self-examine and repent if sobut I
only ask, was it selfish or unselfish, when I :
   
  1) Gave up an award-winning Air Force career and volunteered for a
demotion in rank and a pay-cut, just to become a Navy chaplain and help
Sailors?
   
  2) Led Sailors to feed the homeless every Friday, winning six awards
for community service (including best in Navy)?
   
  3) Risked my own career by advocating (too strongly) for my Jewish
Sailor to have Kosher meals?  (Earning rebuke from headquarters, but
praise from the Anti-Defamation League and Jewish Welfare Board, read
here:  http://persuade.tv/againstgoliath/ADLforKlingenschmitt.pdf )
   
  4) Fought for equal opportunity for Sailors of all diverse faiths to
take turns and share the prayer with my Jewish, Muslim, and Catholic
Sailors, allowing them to pray according to their tradition, while I'd
only pray in Jesus name every fourth turn?  (Which proposal my
commander denied, telling me to pray Jewish prayersread here: 
http://persuade.tv/againstgoliath/AppendixRTwoDeniedProposals.pdf )  
   
  5) Compromised my own faith by obediently praying only Jewish prayers
(Old Testament Psalms) in public, for eight months before he still fired
me from my ship?  
   
  6) Risked my own career by opposing the Navy's government-mandated
church quotas when senior chaplains forced scores of Sailors to attend
a pro-homosexual church?  (Read here: 
http://persuade.tv/againstgoliath/AParticleMattKelley30Apr05.pdf )
   
  7) Fought only to lose my own $1.8 million pension, my own reputation,
my entire career, at criminal conviction, so that other chaplains AND
SAILORS would receive the religious liberty I was denied?  (Don't assume
I'm going to personally benefit from this...my family will soon be
evicted from military housing...I did this for others, not me.)  
   
  8) Quoted the Bible in the chapel (optional-attendance) in a sermon
designed to honor the Christian faith of my deceased Sailor
(guaranteeing his right to a Christian burial), and pleading to save the
souls of those who voluntarily attended, putting their own eternal
salvation ahead of my own reputation, again risking my career?  
   
  If I were truly selfish, I'd never have risked my career for the
benefit of others, I'd simply have watered-down my prayers and sermons,
stopped fighting for religious liberty FOR ALL DIVERSE FAITHS, and
gotten quickly promoted to senior chaplain...  
   
  Chaplain Klingenschmitt
   
  

David E. Guinn [EMAIL PROTECTED] wrote:
  I am appalled by the selfishness of this line of argument --
that the only point of concern is to protect the chaplain -- as
opposed to serve the religious needs and interest of our armed forces.
   
  Not only are these interpretations of history and law enormously
biased and inaccurate, they are offensive.  If the chaplaincy's purpose
is solely to promote Chaplain Klingenschmitt's sectarian faith than
perhaps Madison was correct in arguing that Congress' decision to hire
chaplains was wrong and should now be recended.
   
  David



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RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Paul Finkelman]

Hard to imagine how telling a cab driver to pick up a passenger shaves
down the person's faith.
Let's try it another way:  suppose devoutly Muslim (or Jewish) men
drave susbtantial numbers of cabs and refuse to pick up fares of women
who are not modestly dressed.  No shorts or short skirts?  Are you
prepared to say that their first amendment rights to dress as they wish
should be trumped by the religious beliefs of someone who holds a
licence that says he must pick up all passsengers?

I do not know when Greg last flew, but my sense is that flight
attendants are pretty busy and can't divide up jobs according to
religous preference. Hard to imagine how you would run that business.  

I am not suggesting that we exclude anyone from the society on the
basis of religion; just that people hired to do a job, should do it

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 [EMAIL PROTECTED] 09/30 1:42 PM 
Human beings are not generic round pegs that are carefully shaved down
to a
uniform size on a lathe so as to fit perfectly into every round hole. 
When
society, through the force of law, demands that everyone be the same
and
behave the same, demanding that people surrender their deeply-held
religious
beliefs so as to be an efficient cog in the societal machine, then we
have
lost our liberty.  Instead, being part of a diverse community means
making
reasonable accommodations for religious views, thus making it
possible,
within reasonable parameters, for people from every faith to fully
participate in our public and economic life.

The question is finding that right balance between reasonable
accommodation
for persons with deeply held religious beliefs and the need for
effective
performance of the job at hand.  If it is impossible to make an
accommodation and the requirement is an important part of the task at
hand,
then accommodation would not be required.  Thus, for example, if every
flight attendant were Muslim, allowing all flight attendants to refuse
to
serve alcohol to passengers might be an unreasonable accommodation
(although
we certainly could as a society then discuss whether accommodation was
a
sufficiently important and respectful measure as to justify removing
service
of alcohol from airplane transportation, as being able to imbibe
alcohol
while sitting on a plane is hardly a civil right (although it is a
privilege
that I admit to enjoying).)  But if a one flight attendant out of four
on a
plane was a Muslim and were to ask to be the person who hands out
pillows or
food or soft drinks, rather than be the one who fills drink orders,
that
would be a simple accommodation that inconveniences no one and respects
the
dignity and individuality of the person involved.  That these
questions
require a case-by-case analysis -- rather than imposition of
absolutist
rules -- simply reflects that we are human beings and not cattle.

In any event, I think the Minneapolis-St. Paul airport and the Muslim
cab
drivers should be commended for seeking to find a balance in a way
that
addresses all concerns and shows respect for all persons.  That we can
imagine another set of circumstances in which reasonable accommodation
would
not be possible is no argument to refuse to accommodate in
circumstances
where it can be accomplished with little inconvenience.  We ought to
be
grateful that we still live in a society where, at least in some
regions and
in some circumstances, reasonable people of good faith are wiling to
look
for a solution that doesn't involve excluding people's whose views are
not
our own or imposing a rigid and exclusive bureaucratic rule by the
majority
upon a minority group.

Greg Sisk

Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED] 
http://personal2.stthomas.edu/GCSISK/sisk.html 

-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Friday, September 29, 2006 10:50 PM
To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu 
Subject: RE: FW: 75% of Minneapolis airport taxis refuse
customerswithalcohol

we should not force someone to take a job if they must break religious
beliefs, that is too coercive; but surely we cannot run a society if
people who have an obligation to do a job (pick up fares) refuse to do
that job. COnsider this. What if all 75% of the Muslim cabbies took
this
position, and then, over time, 95% of the cabbies were Muslims who
would
not pick up certain fares?  And if 25% of all flight attendants are
Muslim and refuse to serve drinks on planes, do we color code our
planes; or our amtrack trains?  Can the conductor on the train refuse
to
sell a ticket to the passenger who is legally drinking on the train?

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law

Re: Victory for Military Chaplains Who Pray In Jesus Name

[Paul Finkelman]

And a loss for all sailors and soldiers and member of the air force who
will feel excluded and shut out by people like Cap. Klingenschmitt and
his ilk who cannot understand the difference between their role as
officers in relationship to all members of the armed forces, and their
personal needs to proclaim their private religious beliefs.  Our
soldiers die to protect the latter right; they should not be subjected
to the oppression from military chaplains who insist on insulting and
antagonizing soldiers and sailors and causing conflict within the ranks.
 I am sure Capt. Kingenschmitt can draw great comfort in the thoughts
that his public prayers that offend many in the armed forces will in the
end undermine the ability of the armed forces to defend the nation.  

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 Gordon James Klingenschmitt [EMAIL PROTECTED] 09/30/06 3:14
PM 
Although Congress didn't pass new legislation, they did order SECNAV and
SECAF to rescind their recent (illegal) policies that required
non-sectarian prayersso the controversial Air Force Guidelines
(and Navy policy) are now TOTALLY RESCINDED, and military chaplains are
free to pray in Jesus name in any public setting.  
   
  The official Senate/House conference report language can be read here:
  http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf
   
  In Jesus name,
  Chaplain Klingenschmitt
  719-360-5132 cell
  www.persuade.tv  
  ---
   
  Press Release: VICTORY FOR MILITARY CHAPLAINS WHO PRAY IN JESUS NAME
   
  To:  National Desk
   
  Contact: Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED]
  or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] 
   
  WASHINGTON DC, Sept. 30th /Christian Newswire/ -- 1) Navy and Air
Force Chaplains free to pray in Jesus name again. 2) Congress orders
Secretary of the Navy to rescind non-sectarian prayer policy. 3)
Congress orders Secretary of the Air Force to rescind guidelines
concerning the exercise of religion.
   
  After months of fighting the Navy's non-sectarian prayer policy,
Chaplain Gordon James Klingenschmitt rejoiced on Friday as the U.S.
Congress took decisive action to overturn recent Navy and Air Force
policies that required non-sectarian prayers. 
   
  Praise be to God, military chaplains can once again pray freely in
Jesus name! Klingenschmitt declared victory. Although this fight may
have cost my career and my pension, it was well worth it, because now at
least other chaplains will be given the same religious liberty I was
denied.
   
  While Senator John Warner blocked language in the Defense
Authorization Act to let chaplains pray according to their conscience,
Congressman Duncan Hunter held firm and secured non-negotiable language
in the Conference Report forcing the Navy and Air Force to rescind
their non-sectarian prayer policies. 
   
  The official conference report language can be read here:
  http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf
   
  Janet Folger, Founder and President of Faith To Action, declared
victory as well: This conference report has teeth. It restores freedom
of speech to military chaplains, it restores the law since 1860 that
traditionally let chaplains pray in Jesus name in any setting, and it
serves a swift rebuke to Secretary of the Navy Donald C. Winter. He's
now been ordered by Congress to rescind his illegal policy, and stop his
censorship of chaplains' prayers. Winter is over, it's Summer again, for
chaplains who pray in Jesus name. 
   
  Klingenschmitt also believes this policy change will overturn his
recent court-martial conviction. When my court-martial judge ruled that
wearing my uniform during 'public worship' is only safe inside Sunday
chapel, but that 'worshipping in public' in uniform can be criminally
punished if you disobey orders, he based his ruling on SECNAVINST
1730.7C, that same illegal policy Congress just rescinded. That proves
my commander's original order was 'unlawful,' and my court-martial
verdict is now legally unenforceable. 
   
  Klingenschmitt has already written to Secretary of Defense Donald H.
Rumsfeld, read here:
  http://www.persuade.tv/frenzy6/LetterToSECDEF22Sep06.pdf 
   
  To schedule an interview with Chaplain Klingenschmitt or Janet Folger,
contact Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED]   or
Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] 



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Re: FW: 75% of Minneapolis airport taxis refuse customers with alcohol

[Paul Finkelman]

Sounds like Plessy v. Ferguson to me.  Separate but equal cabs.  No
way.

How far are we willing to take this:  what if they say they won't carry
people who wear a cross a necklace with the Buddha (a pagan symbol for a
devout Muslim); what about a Chistian cab driver who won't pick up
someone with muslim or sikh garb?  It seems to me that this is a civil
rights violation on the part of a common carrier.  The Taxi driver gets
a license to carry peopel from place to place and may not discriminate
on the basis of religion or race or anything else.  

How about this:

Orthodox Jew gets in a cab in Minneapolis with a bottle of kosher wine
he has brought back from a trip.  It is for his religious observance. 
It is Friday an hour before sundown.   Cab drivers refuse take him home
and finally when one arrives that will, it is too late to get home
before sundown.  

What if the cab driver is a member of an Aryan Identity church and
won't take black patrons?

The whole thing sounds unconstitutional and racist; common carriers
have an obligation to accept all passengers.  Otherwise they are not
common carriers.  

Paul Finkelman
Albany Law School

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 [EMAIL PROTECTED] 09/29 12:31 PM 
The color coding sounds like a pretty good accommodation to me.

http://www.startribune.com/789/story/709262.html ...

About three-quarters of the 900 taxi drivers at Minneapolis-St. Paul
International Airport are Somalis, many of them Muslim. And about
three
times each day, would-be customers are refused taxi service when a
driver sees they're carrying alcohol.

It's become a significant customer-service issue,
said Patrick Hogan, a spokesman for the Metropolitan Airports
Commission, on Thursday.

Now the airports commission has a solution:
color-coding the lights on the taxi roofs to indicate whether a driver
will accept a booze-toting fare. The actual colors haven't been
decided
on yet, but commission officials met Thursday with representatives of
the taxi drivers and the Minnesota chapter of the Muslim American
Society to continue working on the plan.

The airports commission has struggled with the issue for several
years.
Alcohol is a serious concern for devout Muslims, said Hassan Mohamud,
an
imam and vice president of the society. The Qur'an, Islam's holy book,
strictly forbids buying, selling, drinking or carrying alcohol.

The observant drivers object only to transporting openly displayed
alcohol, said Ali Culed, a Somali Muslim who's been driving an airport
cab for eight years. They won't search passengers or quiz them about
what's in their bags.

It is a religious issue, Culed said. I cannot force anybody to
change
their belief, but not in my cab. I don't want the guilt. I just want
to
be an innocent person.

Hogan said taxi starters at curbside will look for duty-free bags with
bottles or other obvious signs of alcohol and steer riders to cabs
whose
drivers don't object to booze
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Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

[Paul Finkelman]

I had assumed that this was not an open container issue.  Rather, I
imagine someone getting off a plane from California with a box of wine
or someone getting off an international flight with liquor or wine from
duty free (or special Kosher wine) in an obvious bottle, box, bag, ec.

I assume ALL taxi drivers can refuse to violate an open container law.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]

 [EMAIL PROTECTED] 09/29 1:59 PM 
Question. In many states it is illegal to ride in a vehicle with an
open
container, and some (many?) of those statutes prohibit openly
displaying alcohol. Assuming for a moment that all of the cab drivers
in question are like the fellow who is quoted (no questions asked
about
what is in a passenger's bag), does the analysis change if the
behavior
to which the cab driver objects is illegal? Does it matter that the
open
container and open display laws are enforced somewhat sporadically?

I understand that this does not answer Paul's other hypos (other than
the kosher wine one, if it is in a bag, which moots the question, I
think). Paul's Buddha hypo strikes me as much more difficult to
resolve
(or escape) than the situation making the news. And I understand that
in
states or places without open container or similar laws (are there
any?)
my inquiry is irrelevant.

After all, a taxi driver can refuse to carry a passenger who is
hauling
a clear plastic bag full of joints, no? Or an uncased rifle. 

Jim Maule
Villanova University School of Law

 [EMAIL PROTECTED] 9/29/2006 1:07:11 PM 
Sounds like Plessy v. Ferguson to me.  Separate but equal cabs.  No
way.

How far are we willing to take this:  what if they say they won't
carry
people who wear a cross a necklace with the Buddha (a pagan symbol for
a
devout Muslim); what about a Chistian cab driver who won't pick up
someone with muslim or sikh garb?  It seems to me that this is a civil
rights violation on the part of a common carrier.  The Taxi driver
gets
a license to carry peopel from place to place and may not discriminate
on the basis of religion or race or anything else.  

How about this:

Orthodox Jew gets in a cab in Minneapolis with a bottle of kosher wine
he has brought back from a trip.  It is for his religious observance. 
It is Friday an hour before sundown.   Cab drivers refuse take him
home
and finally when one arrives that will, it is too late to get home
before sundown.  

What if the cab driver is a member of an Aryan Identity church and
won't take black patrons?

The whole thing sounds unconstitutional and racist; common carriers
have an obligation to accept all passengers.  Otherwise they are not
common carriers.  

Paul Finkelman
Albany Law School

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED] 

 [EMAIL PROTECTED] 09/29 12:31 PM 
The color coding sounds like a pretty good accommodation to me.

http://www.startribune.com/789/story/709262.html ...

About three-quarters of the 900 taxi drivers at Minneapolis-St. Paul
International Airport are Somalis, many of them Muslim. And about
three
times each day, would-be customers are refused taxi service when a
driver sees they're carrying alcohol.

It's become a significant customer-service issue,
said Patrick Hogan, a spokesman for the Metropolitan Airports
Commission, on Thursday.

Now the airports commission has a solution:
color-coding the lights on the taxi roofs to indicate whether a driver
will accept a booze-toting fare. The actual colors haven't been
decided
on yet, but commission officials met Thursday with representatives of
the taxi drivers and the Minnesota chapter of the Muslim American
Society to continue working on the plan.

The airports commission has struggled with the issue for several
years.
Alcohol is a serious concern for devout Muslims, said Hassan Mohamud,
an
imam and vice president of the society. The Qur'an, Islam's holy book,
strictly forbids buying, selling, drinking or carrying alcohol.

The observant drivers object only to transporting openly displayed
alcohol, said Ali Culed, a Somali Muslim who's been driving an airport
cab for eight years. They won't search passengers or quiz them about
what's in their bags.

It is a religious issue, Culed said. I cannot force anybody to
change
their belief, but not in my cab. I don't want the guilt. I just want
to
be an innocent person.

Hogan said taxi starters at curbside will look for duty-free bags with
bottles or other obvious signs of alcohol and steer riders to cabs
whose
drivers don't object to booze
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RE: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

[Paul Finkelman]

we should not force someone to take a job if they must break religious
beliefs, that is too coercive; but surely we cannot run a society if
people who have an obligation to do a job (pick up fares) refuse to do
that job. COnsider this. What if all 75% of the Muslim cabbies took this
position, and then, over time, 95% of the cabbies were Muslims who would
not pick up certain fares?  And if 25% of all flight attendants are
Muslim and refuse to serve drinks on planes, do we color code our
planes; or our amtrack trains?  Can the conductor on the train refuse to
sell a ticket to the passenger who is legally drinking on the train?

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/29/06 5:37 PM 
Sandy:  I still wonder why this isn't just assuming the conclusion.
One could equally well say that unemployment beneficiaries must take any
job for which they're qualified, end of story, having been granted
unemployment compensation on those terms.  Or one could say that a
restaurant given a valuable liquor license must open seven days a week,
end of story, notwithstanding the fact that its owner feels a religious
obligation to close Saturdays or Sundays.
 
The question here is whether it's proper for those who define the
rules to come up with an exception that accommodates the licensee's
religious beliefs, while at the same time avoiding inconvenience to the
public.  It's hard to come up with such an accommodation for the postal
worker, but not that hard, I think, for the cab drivers (the
color-coding being a pretty good idea).  If the airport is willing to
accommodate the drivers, why not let it do that?
 
There is also, of course, the question whether such an accommodation
should be constitutionally required.  I think it shouldn't be, because I
generally agree with Smith.  But if one accepts Sherbert/Yoder --
including as to Sherbert herself, who is being granted a valuable public
benefit -- then why wouldn't the cab drivers have a very strong case?
(As I mentioned, the Minnesota Supreme Court has accepted the
Sherbert/Yoder approach to the Minnesota Constitution's religious
freedom provision.)  Perhaps the rule should be something less than
strict scrutiny when it comes to conditions of government benefits (cf.
http://www.law.ucla.edu/volokh/intermed.htm#GovernmentasEmployer for a
discussion of this issue as to the government as employer), though I
take it that this would mean less than strict scrutiny in Sherbert, too.
But why should it be no scrutiny, government wins, end of story?
 
Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Sanford
Levinson
Sent: Friday, September 29, 2006 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: Re: FW: 75% of Minneapolis airport taxis refuse
customerswithalcohol



I confess I'm with Paul on this one.  As someone who has often
taught professional responsibility, I've defended the cab rank rule.
To put it mildly, it is disconcerting to be told that the cab rank
rule doesn't apply to cabs!  They are common carriers, end of story,
having been granted a valuable public license.  If they want to exercise
that kind of discretion, let them open a livery company.  We've earlier
discussed, on more than one occasion, whether a postal worker MUST
deliver personally offensive magazines.  The answer is yes, and I don't
recall that Eugene disagreed.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 


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RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Paul Finkelman]

Again, the employement compesation is different; this is about a duty of
common carriers to accept all people.  Moreover, it opens too many other
exceptions -- pagan symbols, race mixing (Bob Jones Cab Co. won't pick
up mixed race couples); I think we all think of many examples of how
very religious people can find a religious reason for not picking up
someone; can a muslim tow truck driver refuse to tow the broken Miller
Beer Truck?  Can the Muslim bus driver close the door on the overtly
pagan kids trying to get on the bus; can Muslim Cabbies (or Evangelical
Christians) refuse to carry Wickens?  Where, I would ask, would Greg or
Eugene draw the line -- on common carries and places of public
accommodations? The Muslim grocer can close on Friday and refuse to
carry beer; but he cannot refuse to sell to someone who bought beer next
store and is legally carrying a six pack (closed of course) as he tried
to by chips and salsa in the Muslim store.  By the way, if they meet
other criteria, would favor unemployment compensation for Muslin cabbies
who quit because they cannot obey the law which requires them to take
all passengers.

Paul FInkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/29/06 6:45 PM 
It seems to me that the right question is whether the religious
accommodation may be made in a manner that does not cause an
unacceptable
burden to others.  Whether or not such an accommodation is compelled, in
the
post-Employment Division v. Smith period, it surely is not prohibited.

 

Being here in Minneapolis as I am, I can report that this story has
received
significant play in the press.  And, interestingly, this appears to be a
case in which all the parties concerned are behaving with courtesy and
respect in an attempt to find the right balance and live together in a
community without being forced to surrender faith.  The Muslim cab
drivers
agree that they would not inquire as to what a person is carrying - the
Koran does not impose such a duty of inquiry - so any alcohol included
in
baggage would not be known to or covered by the their refusal to accept
the
carriage of alcohol.  The concern is for visible carrying of alcohol
(although not just in open containers, as Paul Finkelman correctly
assumed).
The Muslim cab drivers further have agreed that they would place a
different
colored light on their cabs, so that the attendants for the cab waiting
line
at the airport would simply direct the next passenger in line who is
visibly
carrying alcohol to the next cab in line that does not have the
different
light.  In most cases, this would occur so unobtrusively that the
passenger
wouldn't even know what has just occurred.  In this way, every passenger
still will receive cab service in the order in which he or she appears
in
the cab waiting line, while the Muslim cab drivers may face a temporary
wait
for the next passenger without alcohol, a minor burden placed on and
accepted by the Muslim community in exchange for accommodation of their
deeply-held beliefs.  Please keep in mind as well that this is
Minneapolis-St. Paul - not New York or Washington, D.C. - so that most
passengers arriving at the airport are not taking cabs and thus
accommodation for the relatively few passengers who do take cabs is made
all
the easier.

 

Eugene's point of comparison with unemployment beneficaries is quite
apt, in
light of recent events in Germany.  As he says, drawing the comparison
with
the Muslim cab drivers, One could equally well say that unemployment
beneficiaries must take any job for which they're qualified, end of
story,
having been granted unemployment compensation on those terms.  A case
recently arose in Germany in which a young woman, a person of faith as I
recall, who received unemployment compensation was told that her
benefits
would be terminated because she had refused to accept a job as a
prostitute
that had been posted at the unemployment office, prostitution being a
legal
form of business in Germany.  While that ruling was overturned once
public
attention was drawn to it, it certainly confirms the serious danger to
personal faith and values that may be posed by requiring a person to
fall
into line simply by receipt of a public benefit.

 

Greg Sisk

 

Gregory Sisk

Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

[EMAIL PROTECTED]

http://personal2.stthomas.edu/GCSISK/sisk.html
http://personal2.stthomas.edu/GCSISK/sisk.html 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Friday, September 29, 2006 4:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: FW: 75% of Minneapolis airport taxis refuse
customerswithalcohol

 

Sandy:  I still wonder why this isn't just assuming the conclusion. 
One
could

delete me

[Paul Finkelman]

please delete me at my old address
[EMAIL PROTECTED]
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