Re: Excluding religious institutions from public safety benefits

[Rick Garnett]

Dear Marty,

I agree, certainly, that "thoughtful justification" is always important and
welcome.  For what it's worth, though, I think it overstates the matter a
bit to characterize the religious-institutionalism arguments as pressing a
blanket right to "opt out of the welfare state" or even to avoid, as a
general matter, "sharing in its burdens."  (I try to respond to a powerful
form of this "opt out" argument, advanced by Robin West, here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).

It is true, for sure, that many of these arguments invoke spheres,
jurisdiction, sovereignty, autonomy, etc., in an effort explain why the
entirely appropriate regulatory power of the welfare state does not or
should not extend to certain matters.  But I don't see (or hear?) discord
between, say, arguing for equal treatment / nondiscrimination in Trinity
Lutheran and for church-autonomy in, say, Hosanna-Tabor.

Best wishes,

Rick



On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
wrote:

> Mark, this is certainly true, and important:
>
> "The Remonstrance was written at a time when states did not provide
> extensive benefits to most people or at least was not omnipresence in all
> aspects of their lives.  Not a penny shall go to a church is a lot harder
> to figure out when lots of government pennies go to lots of different
> things."
>
> And that's why almost everyone -- including on this list -- would not have
> much trouble with religious organizations receiving *entitlements* that
> are available to everyone, with police and fire protection being the
> canonical example.  The difficulties, however, are (at least) twofold:
>
> 1.  Virtually all of these cases, including *Trinity Lutheran*, involve
> not entitlements, but instead scarce (often competitive) resources, such as
> selective grants.  In most such cases (but apparently not *LT*),
> government decision-makers must make subjective judgments about which
> recipients are most worthy, which obviously raises constitutional concerns
> when churches are in the mix.  And even where the criteria are wholly
> neutral and nondiscretionary, I think there's an uneasiness about the state
> conferring highly desirable, very selective benefits on religious
> institutions while others do without.  In part because of . . .
>
> 2.  Alan's point, which is that such institutions simultaneously
> insist--often for very compelling reasons--that they should not be made to
> share in the burdens of the welfare state, even when it comes to
> obligations in the commercial sphere, involving virtually universal
> obligations (see Zubik).  Moreover, we're witnessing a flourishing of
> scholarship defending the notion of "separate" spheres and institutional
> autonomy--the right to opt *out *of the welfare state, as it were--but
> many of those same voices insist that the "autonomous" institutions are
> entitled to equal treatment on the benefits side, even with respect to
> scarce resources.  This (all the benefits, less-than-all of the burdens)
> might well be very defensible; but it's certainly at least somewhat
> discordant, and thus cries out for thoughtful justification.
>
>
>
> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
> wrote:
>
>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
>> the problem is not simply the original intent per se, but the welfare
>> state.  The Remonstrance was written at a time when states did not provide
>> extensive benefits to most people or at least was not omnipresence in all
>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>> to figure out when lots of governmet pennies go to lots of different things.
>> __
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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Re: the unconstitutionality of barring Muslims from entering the U.S.

[Rick Garnett]

And, in my experience, it's an uncommon Roman Catholic who remembers/knows
what he or she celebrates on the Feast of the Immaculate Conception (just a
few days ago, on Dec. 8!).  I'm aware of a case in Maine in which the
government lawyer attempted to undermine a Catholic plaintiff's
religion-based claim in a tuition-assistance-related case by catching the
plaintiff in a mistake about that Feast.  (If I remember correctly, the
government lawyer was wrong about it, too.)

More seriously, though:  It doesn't seem to me that the undeniable fact of
many believers' ignorance or forgetfulness regarding theological or
historical details should be seen as weakening the case for (in appropriate
cases) religion-specific asylum claims.

Sincerely (!),

Rick

On Fri, Dec 11, 2015 at 10:28 AM, Rick Duncan 
wrote:

> I remember Prof. R.C. Sproul once mentioned that he often starts some of
> his theology classes in seminary by asking students to list the 10
> Commandments. Many of these *theology students* can't name more than a
> few!
>
> Probably a majority of Christians could not name all 12 Apostles. Maybe 5
> or 6--but not 12.
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> --
> *From:* James Oleske 
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Thursday, December 10, 2015 8:22 PM
> *Subject:* Re: the unconstitutionality of barring Muslims from entering
> the U.S.
>
> Thanks, Chip. I can see why sincerity might be more difficult to judge in
> the denial-of-affiliation situation than in the claim-of-affiliation
> situation, but I'm not sure a sincerity inquiry is impossible in the former
> situation. And I do wonder how often the line between a permissible
> sincerity inquiry and an impermissible judicial development of a religious
> test gets blurred in the latter situation. In one BIA decision affirmed by
> the Ninth Circuit, an immigration judge included this explanation for why
> it had found that the claimant had not converted to Christianity:
>
> "The respondent cannot even name the 12 apostles of Jesus Christ. With the
> Court's understanding that Christianity begins with the life and teaching
> of Jesus Christ in the New Testament, the 12 apostles have some of the most
> important, if not the most important, writings of Christianity. The Court
> has serious doubt in the respondent's conversion to Christianity when he
> cannot even give the names of the 12 apostles of Jesus Christ."
>
> Toufighi v. Mukasey, 538 F.3d 988, 991 (9th Cir. 2008) (affirming the
> BIA's decision after finding that the court lacked jurisdiction to review
> the IJ's factual findings). But see id. at 1000 (Berzon, dissenting)
> ("[T]he question is *not* what Toufighi believes but what Iran
> understands him to believe—or, more accurately, *not* to believe. It is
> thoroughly plausible that because he attends Christian services and belongs
> to a Christian church, Toufighi will be taken to have renounced Islam.
> Neither the BIA's nor the IJ's 'opinion[s] ... consider[ed] what could
> count as conversion in the eyes of an Iranian religious judge, which is the
> only thing that *would* count as far as the danger to [the petitioner] is
> concerned.' Even if his conversion is not 'genuine,' he remains at risk.")
> (quoting Bastanipour v. I.N.S.*,* 980 F.2d 1129, 1132 (7th Cir.1992)).
>
> Putting aside the dispute between the majority and dissent in Toufighi
> over the relevance of the IJ's factual finding, I think the finding itself
> could be viewed not only as a questionable sincerity finding, but also an
> impermissible assumption of judicial authority to determine the religious
> importance of the 12 apostles.
>
> - Jim
>
>
>
>
> On Thu, Dec 10, 2015 at 3:46 PM, Ira Lupu  wrote:
>
> Thanks, Jim, for the kind words about the book.
>
> On the asylum and refugee problem -- someone asked me about this
> yesterday, off-list.  I answered with a variation on the following:
> In persecution cases, someone is claiming to be of a certain faith (or at
> least that she fears persecution because others perceive her to be of that
> faith).  Sincerity is an appropriate inquiry into either of those
> assertions.  But the context of the Trump proposal involves someone denying
> that she is a Muslim.  If the person seeking entry denies affiliation, what
> questions can you ask?  The government may not assert that anyone who
> believes X is therefore a member of Faith Y.  If immigration judges probe
> affiliation, I'll bet they don't ask whether the applicant believes in the
> divinity of Christ, or believes in the inviolability of teachings in the
> Koran.  Reaching conclusions based on those questions would involve the
> government taking a position on matters disputed within the faith itself.
>
> On Thu, Dec 10, 2015 at 5:23 PM, James Oleske 

Re: Notre Dame diversion

[Rick Garnett]

Dear Marty,

As we've discussed a few times during the all this (and I have nothing to
do, to be clear, with Notre Dame's litigation), I don't regard the opt-out
arrangement (or, for that matter, Ms. Davis's role as a clerk) as involving
culpable cooperation with wrongdoing.  (That I don't regard it this way
doesn't mean that the University should lose on a RFRA claim, of course.)
 It has always seemed to me that the nature of the burden is not
compelled-cooperation but is instead the (admittedly more abstract)
compromising of the University's understanding of what it means to be
animated pervasively by a Catholic character and mission.

As you note, it does seem that the University's current position is not the
same as Davis's, and for the reason you cite:  The insurer and/or TPA are
*Notre Dame's* insurer and/or TPA, and so Notre Dame is not "noninvolve[d]."

Regards,

Rick

On Wed, Sep 9, 2015 at 6:12 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> I agree with Rick that Judge Posner did not comport himself well (or
> usefully) at oral argument.  I also agree that Notre Dame has not said--not
> clearly, anyway--that it would object if the *government* provided its
> students and employees with coverage in a way that did not involve Notre
> Dame's insurer and third-party administrator.
>
> Yet, like Davis and her Deputy Clerk, Notre Dame now *does *argue that
> its religious obligations are violated, no matter the scope of its own
> noninvolvement, if Notre Dame's insurer (for its employee plan) or TPA (for
> its student plan) themselves provide contraceptive coverage to its
> employees/students -- something that has been happening all this year.
>
> I would be very surprised if Rick agrees that Notre Dame has been
> violating its religious obligations throughout all of 2015 -- or even that
> Notre Dame's decision-makers are of that view.  Yet that is the claim.
>
> In fairness, the new claim in Rowan County is one step further attenuated:
>  Davis now (reportedly) will argue that her religion prohibits a County
> Deputy Clerk from issuing a license even though (unlike ND and its
> insurer/TPA) Davis presumably did not herself enter into a contract with
> the Deputy Clerks.
>
> On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett <rgarn...@nd.edu> wrote:
>
>> Eric,
>>
>> I was not there, but have I listened, and I don't think your
>> characterization is accurate.  Notre Dame, my understanding and impression
>> are, has not said much about the government's determination to provide (or,
>> more precisely, to require the provision by others of) contraceptives to
>> Notre Dame's employees.
>>
>> Instead, the University insists it wants to avoid being involved with
>> (and, I understand, you and Marty disagree with the University about what
>> constitutes being meaningfully or culpably involved with) that provision.
>> I don't see any point in litigating here the "[]plausibility" of the
>> University's stated views on complicity but, again, it seems inaccurate to
>> suggest that the University is demanding that its employees not receive
>> (from someone) contraception or contraception-coverage.
>>
>> That said:  I do agree that there were a number of things that were
>> "apparent" from Judge Posner's questions and writings. I'm not sure,
>> though, how well some of those things reflect on Judge Posner.
>>
>> Rick
>>
>> On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall <eseg...@gsu.edu> wrote:
>>
>>> Well said again Marty.
>>>
>>>
>>>
>>> I was present in the courtroom for the Notre Dame 7th Circuit appeal.
>>> It was apparent from Judge Posner’s questions that nothing short of a
>>> complete government abdication of providing contraception to Notre Dame’s
>>> employees would satisfy Notre Dame.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Eric
>>>
>>>
>>>
>>> *From:* conlawprof-boun...@lists.ucla.edu [mailto:
>>> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>> *Sent:* Tuesday, September 08, 2015 6:29 PM
>>> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
>>> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
>>> Academics; Michael Dorf
>>> *Subject:* Davis doubles down
>>>
>>>
>>>
>>> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
>>> that she will continue to press her RFRA claim, and insist that the
>>> licenses not be issued, because, even though her name is no longer on the
>>> li

Re: Davis doubles down

[Rick Garnett]

Eric,

I was not there, but have I listened, and I don't think your
characterization is accurate.  Notre Dame, my understanding and impression
are, has not said much about the government's determination to provide (or,
more precisely, to require the provision by others of) contraceptives to
Notre Dame's employees.

Instead, the University insists it wants to avoid being involved with (and,
I understand, you and Marty disagree with the University about what
constitutes being meaningfully or culpably involved with) that provision.
I don't see any point in litigating here the "[]plausibility" of the
University's stated views on complicity but, again, it seems inaccurate to
suggest that the University is demanding that its employees not receive
(from someone) contraception or contraception-coverage.

That said:  I do agree that there were a number of things that were
"apparent" from Judge Posner's questions and writings. I'm not sure,
though, how well some of those things reflect on Judge Posner.

Rick

On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall  wrote:

> Well said again Marty.
>
>
>
> I was present in the courtroom for the Notre Dame 7th Circuit appeal. It
> was apparent from Judge Posner’s questions that nothing short of a complete
> government abdication of providing contraception to Notre Dame’s employees
> would satisfy Notre Dame.
>
>
>
> Best,
>
>
>
> Eric
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:
> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, September 08, 2015 6:29 PM
> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard
> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law
> Academics; Michael Dorf
> *Subject:* Davis doubles down
>
>
>
> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
> that she will continue to press her RFRA claim, and insist that the
> licenses not be issued, because, even though her name is no longer on the
> licenses, the name of her *office *is!
>
>
>
>
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>
>
>
> It's just like the contraception cases -- whenever the government
> accommodates even the most implausible theories of complicity by
> eliminating the aspects of the scheme that the plaintiff asserted made her
> morally complicit, the plaintiff then unveils a new (and even more
> attenuated) theory of responsibility that is said not to be left
> unaddressed by the accommodation.  In this way, the plaintiffs effectively
> exploit the fact that the governments in question (admirably) do not choose
> to challenge the sincerity of the ever-evolving theories of complicity.
>
>
>
> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
> wrote:
>
> I'm pressed for time, so this is only a preliminary take, but thought it'd
> be worth throwing it out there for reactions:
>
>
>
>
> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>
>
>
> ___
> To post, send message to conlawp...@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> 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.
>
___
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Re: The clerk of court / death warrant hypothetical

[Rick Garnett]

Dear Eugene (and colleagues),

I realize the conversation has moved on a bit, but I wanted to thank you
for this hypo; it's been on my mind, too.  For what it's worth, when I was
a law clerk, I was -- or, I felt that I was -- in something like the
situation you describe when I was the designated clerk for handling the
last-day motions and memos at the Court, and coordinating the justices'
responses, when an execution was scheduled.

As you probably remember, it was often the task of that law clerk to sign
(for his or her boss) the order denying relief and (as a result) allowing
the scheduled execution to go forward.  A number of us who opposed capital
punishment (as I did) spent a fair bit of time working through what we saw
as the possible complicity issues.  I concluded  that I didn't need to ask
my boss for any kind of accommodation -- my part seemed remote and
"ministerial" -- but I cannot remember if others came to a different
conclusion.  I remember thinking, though, that such an accommodation would
probably have been (informally) given, so long as the other clerks in
chambers were willing to pick up the work.  (Of course, unlike in the Davis
situation, it would have been asking a lot, and imposing a lot, for me to
ask them to do so.)

Best wishes,

Rick



Richard W. Garnett

Paul J. Schierl / Fort Howard Corporation Professor of Law

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:



Mirror of Justice 

Prawfsblawg 

Twitter:  @RickGarnett 

On Sat, Sep 5, 2015 at 2:33 PM, Volokh, Eugene  wrote:

>Let me bring up again something that I think I mentioned
> earlier.  Say that in the state of Kennessee, death warrants have to be
> filed in a county clerk’s office together with a county clerk’s
> “acknowledgment of filing of death warrant” form, and by statute that
> acknowledgment form has to include the county clerk’s name (though not her
> signature).
>
>
>
> Say that Jane Smith, a county clerk, believes that the death penalty is
> murder, and thus a grave sin.  She also believes that complicity with the
> death penalty is itself sinful.  She realizes, though, that everyone in
> society is in some measure connected with everything – through paying
> taxes, through providing staple goods and services (such as selling the
> paper on which a death warrant will be printed), and so on.  That is
> especially so of government employees and officials.  So, after reflection,
> prayer, and fasting, she concludes that it would be permissible for her
> office to file the death warrant, but that having her name on an
> acknowledgement of a warrant authorizing a man’s killing would be
> unacceptable complicity.  This is purely symbolic, of course, but she
> thinks this symbolism matters to God, just as symbolism matters in many
> other contexts to many other people.  She goes to state court, arguing that
> under the state RFRA, she should be allowed to have her office file the
> warrants with a form that excludes her name.
>
>
>
> Why wouldn’t that be a standard, relatively straightforward application of
> the state RFRA?  There is indeed a compelling government interest in making
> sure that the democratically authorized death penalty is implemented,
> notwithstanding the objection of one elected official.  But the requirement
> that the clerk have her office file documents with her name isn’t necessary
> to serving that compelling interest; a court order stating that, under the
> state RFRA, the clerk can have her office file the documents without her
> name included, would make clear that the documents without the name are
> valid.  The compelling government interest is served.  The religious
> objector’s religious beliefs, however unreasonable some might view them as
> being, are satisfied.  Isn’t that precisely what state RFRAs are supposed
> to do?
>
>
>
> (Of course, I realize that many people have a very different view of the
> morality of the death penalty and of same-sex marriage – but I take it that
> those differences shouldn’t affect the state RFRA analysis.)
>
>
>
> Eugene
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>

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

[Rick Garnett]

Dear Michael,

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

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

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

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

=-)

All the best,

Rick

Richard W. Garnett

Professor of Law and Concurrent Professor of Political Science

Director, Program on Church, State  Society

Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556-0780

574-631-6981 (w)

574-276-2252 (cell)

rgarn...@nd.edu



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



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



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

On Fri, May 1, 2015 at 11:44 AM, Michael Worley mwor...@byulaw.net wrote:

 To emphasize two policy changes in the LDS faith is legitimate; however
 the centrality of traditional sexual norms to the LDS faith is extremely
 more central than those changes.

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

 On Fri, May 1, 2015 at 9:06 AM, Levinson, Sanford V 
 slevin...@law.utexas.edu wrote:

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

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

  Sandy

 Sent from my iPhone

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

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



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



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



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



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



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



 -- that anyone misunderstands their own religion



 or



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



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



 Of course, as your response acknowledges, religious beliefs of many
 individuals (not all)--and of many religious institutions--do change as a
 result of shifts in social practices, which tend to be followed by shifts
 in understandings of human nature.  These shifts sometimes occur even with
 respect to theological commitments that have long been viewed as based in
 transcendent truth.  The examples are legion--within my faith, the Catholic
 Church, the LDS, etc.; I know I don't need to belabor the point.  The Notre
 Dame video, making great efforts to attract LGBT students, is merely the
 latest example.  But it's of a 

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

[Rick Garnett]

In theory, they were never supposed to be sold.  Such sales were (or are
now said to have been) abuses.

It's not a big deal . . . was only aiming for some Friday humor.  =-)

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
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



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

On Fri, May 1, 2015 at 12:17 PM, Doug Laycock dlayc...@virginia.edu wrote:

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



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



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



 Dear Michael,



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




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



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




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



 =-)



 All the best,



 Rick


 Richard W. Garnett

 Professor of Law and Concurrent Professor of Political Science

 Director, Program on Church, State  Society

 Notre Dame Law School

 P.O. Box 780

 Notre Dame, Indiana 46556-0780

 574-631-6981 (w)

 574-276-2252 (cell)

 rgarn...@nd.edu



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



 Blogs:



 Prawfsblawg http://prawfsblawg.blogs.com/

 Mirror of Justice http://mirrorofjustice.blogs.com/



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



 On Fri, May 1, 2015 at 11:44 AM, Michael Worley mwor...@byulaw.net
 wrote:

 To emphasize two policy changes in the LDS faith is legitimate; however
 the centrality of traditional sexual norms to the LDS faith is extremely
 more central than those changes.

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



 On Fri, May 1, 2015 at 9:06 AM, Levinson, Sanford V 
 slevin...@law.utexas.edu wrote:

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



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



 Sandy

 Sent from my iPhone


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

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



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

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

[Rick Garnett]

Dear Nelson,

I don't see that the Hobby Lobby Court reaffirmed the principle against
burden-shifting in religion accommodations or that Justice Kennedy made
it central to his vote if by principle here you mean the argument --
which, of course, you and several others have very ably developed and
expounded -- that the Establishment Clause rules out (all?) legislative
accommodations that involve or impose third-party costs (on specific,
identifiable third parties).  (I ask about all because my recollection is
that you have said that the accommodation at issue in Amos was / is
permissible.)  Justice Ginsburg notes in a footnote that the government’s
license to grant religion-based exemptions from generally applicable laws
is constrained by the Establishment Clause but, it seems to me, she did
not rely on this point in her dissent, which seemed to me to be more about
RFRA's particular elements.  Justice Kennedy says, in his penultimate
paragraph, [y]et neither may that same exercise unduly restrict other
persons, such as employees, in protecting their own interests, interests
the law deems compelling[,] but he seems to be doing so in the context of
applying what he and the Court call RFRA's stringent test and not
necessarily to be invoking an Establishment Clause constraint.  And,
Justice Alito does not mention the Establishment Clause at all.

I also continue to think -- although the conversation about the rule you
and other leading scholars propose is very important -- that it is not
quite the case that the case law in both areas is lopsided in favor of the
principle -- again, if the principle is the fairly strong Establishment
Clause constraint you all have proposed -- but . . . disagreement among
colleagues helps make life interesting and I guess we just understand
Caldor and Cutter differently. Marc DeGirolami's discussion (here:
http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html)
and Eugene Volokh's (here:
http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/)
were, for me, helpful.

With respect to your (and others') Establishment Clause argument, I do have
a quick question.  (I am sorry if I am forgetting an answer that you have
already presented in your scholarship!)  Do you think we should think of
the no-burden-shifting rule as applying, in a sense, only *after* we have
identified whatever limits on government regulation the First Amendment
might require (e.g., the ministerial exception), and as applying only as a
constraint on discretionary accommodations, or should we think of the rule
as kicking in earlier, and as helping to fix the point where the First
Amendment rights of, say, Hosanna-Tabor school end?  Or does it not
matter?  Again, please feel free just to refer me to something else.

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
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



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

On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe nelson.te...@brooklaw.edu
wrote:



  Thanks, Alan. Speaking again only for myself, I am open to some
 balancing, not only as to this particular principle (against burden
 shifting to third parties) but also as a general methodology, as you know.
 But the conversation is not yet at that point. Right now, the main debate
 is over whether the principle even exists in constitutional law, and what
 its most basic applications might be, not over its contours. As a matter of
 doctrine, the Hobby Lobby Court reaffirmed the principle against
 burden-shifting in religion accommodations, and Justice Kennedy made it
 central to his vote, but there is some troubling language in the opinion
 (see, e.g., footnote 37 and the sharp division between RFRA and pre-Smith
 cases). As a matter of application, the Hobby Lobby Court did not make its
 ruling contingent on the absence of harm to third parties. And in fact
 employees of Hobby Lobby continue to be harmed right now. And as a matter
 of theory, finally, prominent scholars continue to deny that the principle
 exists and has legal status, under either free exercise or
 nonestablishment, despite the fact that the case law in both areas is
 lopsided in favor of the principle. But again my basic answer is yes, I am
 open to that approach.

  On Apr 1, 2015, at 5:46 PM, Alan E Brownstein aebrownst...@ucdavis.edu
 wrote:

   I appreciate your point, Nelson. And I think the principle
 that private citizens should not have to bear the costs associated with
 

Re: Jim Oleske's new review of book by Robert George

[Rick Garnett]

Dear Chip,

I'm probably just echoing Eugene's earlier comment but, for what it's
worth, I think your claim that [n]o one who embraced Scalia's description
of limits on the judicial role could be a fan of RFRA, unless perhaps it
turned out that RFRA helped his friends might overstate things a bit and I
wonder if you might modify or qualify it.

As someone who thinks Smith is (basically) right in terms of what the First
Amendment requires and authorizes judges to do (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084) -- and who also
said yay, RFRA! after the O Centro decision (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931186), it seems to me
that one *could* (what's the joke about believing in infant baptism?  I've
seen it done?)  embrace Justice Scalia's concerns as applied to the
judicial role in constitutionalizing (or, creating constitutionally
required) exemptions while at the same time welcoming Congress's decision
to invite judges to apply -- in a politically revisable way -- RFRA's
standard to generally applicable laws.

That Congress and other legislatures are not often undoing judges'
applications of RFRA and RFRA-type laws does not, it seems to me, undermine
the point.  It could simply mean that politically accountable actors, so
far, basically approve of the ways courts are responding to their
invitation-to-accommodate.

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
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



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

On Tue, Feb 17, 2015 at 12:51 PM, Ira Lupu icl...@law.gwu.edu wrote:

 I doubt that most list members are very engaged in this tussle between Jim
 Oleske and Robby George.  George and his friends certainly seem very
 engaged, though -- one might say they are more than a tad defensive in
 their responses to Jim Oleske's rigorously argued (I repeat) review of
 George's book.  As I see it, the matter comes down to this -- George
 (unlike Michael Paulsen) was a big fan of Emp Div. v. Smith.  And George
 did call for practice specific exemptions, when justified, by
 legislatures.  But, to the best of my knowledge, George (unlike Paulsen)
 never defended or championed RFRA until his conservative Christian allies
 found comfort from it.  George did not call for RFRA's enactment back in
 1992; he did not cheer when RFRA became law in 1993; he did not lament City
 of Boerne in 1997; and he did not say hurray for RFRA in 2006 when a
 unanimous Supreme Court upheld the RFRA rights of UDV members to use hoasca
 tea in their sacraments.
 And it's not surprising that George did not celebrate any of this -- the
 distinction he makes between free exercise adjudication and RFRA
 adjudication will not bear nearly the weight he now wants to put on it.
 Yes, we all know that RFRA is a statute, subject to Congressional control.
 But we also know that RFRA is effectively un-repealable; that Congress has
 never revised a RFRA outcome; and most basically, that RFRA asks judges to
 perform the precise tasks that Scalia asserted in Smith were outside the
 competence of judges.  No one who embraced Scalia's description of limits
 on the judicial role could be a fan of RFRA, unless perhaps it turned out
 that RFRA helped his friends.  I understand that people can change their
 minds when their interests are implicated, but a little humility (not
 accusations of smear) seems in order.

 On Tue, Feb 17, 2015 at 10:17 AM, Ryan T. Anderson 
 ryantimothyander...@gmail.com wrote:

 One additional note on this. Mike Paulsen reports the following:
 http://www.nationalreview.com/bench-memos/398692/friends-and-enemies-conscience-and-its-enemies-michael-stokes-paulsen


 As it happens, last spring *I* had been invited by the *Harvard Law
 Review Forum *to review *Conscience and Its Enemies*.  ... In a somewhat
 surprising and perplexing move, the editors of the *Harvard Law Review
 Forum*, perhaps noticing that my draft was in the main *supportive *of
 George’s positions on many points — and harshly critical specifically of a
 former president of the *Harvard Law* *Review* (and current president of
 the United States) — informed me that they would be soliciting a competing,
 rebuttal book review, to be published in the same on-line issue,
 side-by-side with mine.

 This struck me as more than a little bit odd. I had never heard of such
 an arrangement before, in an academic journal — a solicited book review
 being held up because, seemingly, the perhaps-surprised editors wanted to
 mitigate its perspective by soliciting a countering book 

Re: Jim Oleske's new review of book by Robert George

[Rick Garnett]

Dear Chip -

Yes, thanks, your response helps me understand your position.

Rick

Sent from my iPhone

On Feb 18, 2015, at 6:16 PM, Ira Lupu icl...@law.gwu.edu wrote:

Dear Rick:

Yes, I think you are just echoing Mark and Eugene when you emphasize the
distinction between pre-Smith free exercise adjudication and RFRA
adjudication.  Consider what Scalia says in Smith (pp. 885-890) about the
normative and institutional deficiencies of free exercise adjudication --
among other concerns, the deep undesirability of a system in which each
conscience is a law unto itself or in which judges weigh the social
importance of all laws against the centrality of all religious beliefs (at
890).  What makes this and other concerns he expresses go away when the
identical standards are being applied under RFRA?

The argument to the contrary, as I understand it, is not about judicial
competence to apply those standards.  How can judges magically become more
trustworthy or reliable when the identical power is being exercised under a
statute? Eugene's argument (which you and Mark have seconded) is not about
manageability or substantive soundness of those standards.  Instead, it is
all about political accountability - that somehow RFRA adjudication is
different because of the possibility of legislative revision and control.
As you probably know, I have recently argued that this line of thinking is
an academic fancy, with no real world confirmation.  See pp. 73-74 of
Hobby Lobby and the Dubious Enterprise of Religious Exemptions,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466571.  Reasonable
people can differ on this, of course, but public choice theory confirms the
lived experience -- at least before the recent conflict about marriage
equality and vendor discrimination, legislators would routinely vote for
religious freedom in the abstract, and leave to the judiciary all the
particular choices of how to apply RFRA's to each case. Legislators would
get all the credit and none of the blame for any bad choices.  There has
been no after the fact accountability for legislative approval of a RFRA.

So I get why Mike Paulsen, Doug Laycock, and others are big fans of RFRA --
they think Smith was wrong, and that RFRA rightly restores some version of
the pre-Smith regime.  But I don't get why you, Mark, Eugene and others
cling to this Smith was right, but RFRA is good trope.  It rests on sand.

I will confess original ambivalence about Smith (i have written on both
sides of that -- critical of Smith in the early years, supportive more
recently).  But I have been convinced from the beginning that RFRA was a
mistake, and I am only more convinced by 20 years of experience that the
regime of RFRA, as administered by judges and never supervised by
legislatures, is unprincipled.

 I hope this answers your question.

Chip



On Wed, Feb 18, 2015 at 2:25 PM, Rick Garnett rgarn...@nd.edu wrote:

 Dear Chip,

 I'm probably just echoing Eugene's earlier comment but, for what it's
 worth, I think your claim that [n]o one who embraced Scalia's
 description of limits on the judicial role could be a fan of RFRA, unless
 perhaps it turned out that RFRA helped his friends might overstate things
 a bit and I wonder if you might modify or qualify it.

 As someone who thinks Smith is (basically) right in terms of what the
 First Amendment requires and authorizes judges to do (
 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084) -- and who
 also said yay, RFRA! after the O Centro decision (
 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931186), it seems to
 me that one *could* (what's the joke about believing in infant baptism?
  I've seen it done?)  embrace Justice Scalia's concerns as applied to the
 judicial role in constitutionalizing (or, creating constitutionally
 required) exemptions while at the same time welcoming Congress's decision
 to invite judges to apply -- in a politically revisable way -- RFRA's
 standard to generally applicable laws.

 That Congress and other legislatures are not often undoing judges'
 applications of RFRA and RFRA-type laws does not, it seems to me, undermine
 the point.  It could simply mean that politically accountable actors, so
 far, basically approve of the ways courts are responding to their
 invitation-to-accommodate.

 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
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



 Blogs:



 Prawfsblawg http://prawfsblawg.blogs.com/

 Mirror of Justice http://mirrorofjustice.blogs.com/



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

 On Tue, Feb 17, 2015 at 12:51 PM, Ira Lupu icl...@law.gwu.edu wrote:

 I doubt that most list members

Re: GW National Religious Freedom Moot Court Competition

[Rick Garnett]

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
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



Twitter:  @RickGarnett https://twitter.com/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: On a different strand of the seamless web

[Rick Garnett]

Dear colleagues,

I suppose I am just echoing a point that Eugene made, but it seems to me
that -- while it is certainly possible to imagine settling, at the end of
the day, if only for pragmatic reasons, on a legal regime that did not
extend religion-related exemptions from generally applicable commercial
or economic regulations or did not extend them to for-profit corporations
-- the reason or justification for this regime would not be (a) that
religious commitments have nothing to say about, and do not often motivate,
commercial or economic activity; (b) that business corporations do not have
souls; or (c) that only laws regulating the activities of natural persons
can burden religious freedom or the exercise of religion.

Best wishes,

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
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawg http://prawfsblawg.blogs.com/

Mirror of Justice http://mirrorofjustice.blogs.com/



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


On Mon, Jul 7, 2014 at 4:53 AM, Paul Finkelman paul.finkel...@yahoo.com
wrote:

 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: On a different strand of the seamless web

[Rick Garnett]

 that they should not be held to have waived those
  rights because they elect to do business in a corporate form.
  Alito’s opinion is strongest when he focuses on real people.
 
  But the majority also holds that commercial corporations are persons
  for RFRA purposes. I do not think it was necessary to reach that
  conclusion to protect the Greens and Hahns in this case. Alito
  suggests that this idea of corporate personhood is a fiction, but it
  is more than that. It is a caricature of human dignity to describe a
  commercial corporation as having religious exercise rights. I think
  that is part of what is provoking some of the criticisms directed at
  Alito’s opinion.
 
  Moreover, by holding that corporations are persons for RFRA purposes,
  Alito makes it much easier to argue that publicly traded corporations
  are persons for RFRA purposes as well as closely held corporations.
 
  Finally, the issue of commercial corporate dignitary rights arises in
  other contexts involving other rights. I think, for example, as did
  Chief Justice Rehnquist, that it is absurd to suggest that commercial
  corporations have dignitary rights that are offended if they are
  compelled as corporate entities to speak – or to be connected in some
  modest way with some government mandated message. By talking about
  commercial corporate religious exercise rights in Hobby Lobby, the
  Court arguably reinforces the idea of corporate dignitary rights in
  other circumstances.
 
  Alan
 
  FROM: religionlaw-boun...@lists.ucla.edu
  [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marty
  Lederman
   SENT: Monday, July 07, 2014 8:14 AM
   TO: Law  Religion issues for Law Academics
   SUBJECT: Re: On a different strand of the seamless web
 
  On this point, I think we may have at least some degree of consensus:
  The issue is not corporate v. noncorporate, or for-profit v.
  nonprofit; it is, instead -- and has been ever since Prince, a case
  involving individuals acting in the commercial sector for religious,
  nonprofit reasons -- whether and under what circumstances exemptions
  should be afforded in the commercial setting.
 
   Also, as I have been blogging since the outset of the case, the issue
  is not the religious exercise of the commercial enterprise -- it's
  absurd to say that any religion imposes obligations on Hobby Lobby,
  Inc. -- but instead the religious exercise of those who make decisions
  on its behalf. I think the Alito opinion is best understood to confirm
  this conclusion. To be sure, at a couple of points he refers to
  permitting the RFRA suit to be brought by Hobby Lobby itself. But
  there's no doubt that it's the Greens and the Hahns, in their capacity
  as corporate directors, whose religious exercise is at issue:
 
   -- Congress did not discriminate in this way AGAINST MEN AND WOMEN
  WHO WISH TO RUN THEIR BUSINESSES as for-profit corporations in the
  manner required by their religious beliefs.
 
   -- Congress provided protection for PEOPLE LIKE THE HAHNS AND
  GREENS
 
   -- the HAHNS AND GREENS have a sincere religious belief that life
  begins at conception. They therefore object on religious grounds to
  providing health insurance that covers methods of birth control . . .
  .
 
  Ultimately, the Court holds that protecting the free-exercise rights
  of corporations like Hobby Lobby, Conestoga, and Mardel protects the
  religious liberty of the humans who own and control those companies.
  I think this formulation doesn't make sense conceptually -- the
  corporations don't exercise religion. Therefore it would have made
  much more sense for the Court simply to say that the Greens and Hahns
  can sue under RFRA. But in any event, there's no doubt that, at least
  in the for-profit cases, the burden is allegedly placed on the
  religious exercise of the individuals making decisions on behalf of
  the companies, rather than on any religious exercise of the companies
  themselves.
 
   --
 
  On Mon, Jul 7, 2014 at 10:40 AM, Rick Garnett rgarn...@nd.edu [1]
  wrote:
 
  Dear colleagues,
 
  I suppose I am just echoing a point that Eugene made, but it seems to
  me that -- while it is certainly possible to imagine settling, at the
  end of the day, if only for pragmatic reasons, on a legal regime that
  did not extend religion-related exemptions from generally applicable
  commercial or economic regulations or did not extend them to
  for-profit corporations -- the reason or justification for this regime
  would not be (a) that religious commitments have nothing to say about,
  and do not often motivate, commercial or economic activity; (b) that
  business corporations do not have souls; or (c) that only laws
  regulating the activities of natural persons can burden religious
  freedom or the exercise of religion.
 
  Best wishes,
 
  Rick
 
  Richard W. Garnett
 
  Professor of Law and Concurrent Professor of Political Science
 
  Director, Program on Church, State  Society
 
  Notre Dame

RE: Divisiveness

[Rick Garnett]

Dear colleagues,

Like Eugene, I think there is (as always) a lot to what Alan says.  Still, with 
respect to the specific question whether judicial predictions or observations 
of political divisiveness along religious lines should be used to identify 
those practices and policies that are unconstitutional -- i.e., that violate 
the Establishment Clause -- my view is that they should play no role.  

To say this is not to deny that one good reason for prohibiting -- for taking 
off the table of ordinary politics -- religious establishments is to avoid 
such divisiveness (although divisiveness can just be a word we use for 
disagreement, which seems unavoidable and not necessarily undesirable).  In 
that article that Tom kindly mentioned, I tried to make the case that the 
Establishment Clause should not be seen as an invitation to the Court to play a 
managerial role with respect to the tone of our political discourse.  Its 
contributions, instead, should be more indirect -- it enforces our political, 
politics-constraining disestablishment decision, but does not, in the course of 
enforcing that decision, use feared or observed divisiveness to distinguish 
what we disallowed from what we left allowable.

Regards,

Rick
   
Richard W. Garnett
Professor of Law  Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981 (office)
574-631-4197 (fax)

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, June 10, 2014 5:28 PM
To: Law  Religion issues for Law Academics
Subject: RE: Divisiveness

   I think there’s much to what Alan says, but I think the 
relationship between national and local politics is complex.  For instance, 
while choosing U.S. Supreme Court Justices is a matter for national politics, 
many groups that organize to influence that will also have local chapters and 
allies, which will get involved in state-level politics, and sometimes even in 
local politics; the anti-abortion movement is one example.  Moreover, one may 
influence national politics by working through state or local-level politics, 
for instance by pressuring the state legislature, a city council, or a school 
board to take symbolic action protesting against federal constitutional 
decisions, for instance relating to religious symbolism and the like.  My sense 
is that McCreary County indeed stemmed from local-level political activity 
aimed at symbolically protesting the Court’s Establishment Clause decisions.

   Again, this doesn’t tell us what the right answer is under the 
Establishment Clause, or under other clauses.  Perhaps an answer that leads to 
some extra political mobilization along religious lines is nonetheless correct. 
 But it does suggest that using the supposed divisiveness of a decision as a 
criterion for determining whether the decision is right, or determining what 
rule to adopt, would not be a good idea.

   Eugene

Alan Brownstein writes:


Eugene is certainly correct that sometimes a constitutional decision intended 
to take an issue off of the table of political deliberation and avoid 
political/religious divisions will have counterproductive consequences. I tend 
to see this as an unavoidable cost of deciding constitutional cases at least in 
part on some understanding of social reality and some prediction of how the 
decision will influence human behavior. Courts will make mistakes in this 
regard -- and they will make mistakes in many areas of constitutional law that 
extend far beyond the religion clauses.



If we focus on the religion clauses, however, I think constitutional decisions 
do mitigate political/religious divisions in many cases. For example, they 
certainly influence the level of decision making at which political/religious 
mobilization occurs.  Choosing new supreme court justices is a matter of 
national politics, not local politics.



There is one sense in which political/religious divisions may reduced if 
church-state issues are returned to the table of political deliberation. 
Subjecting religious exercise and the promotion of religion to political 
control reduces religious integration. More people will choose to live in 
communities in which they are the majority or a very well represented minority. 
In religiously homogenous communities, there is less need to mobilize along 
religious lines. I think there are other serious problems with this kind of 
fragmented, dis-integrated society along religious lines. But in many 
communities, the absence of minorities will reduce political/religious disputes.
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Re: Hobby Lobby/Ellen Katz

[Rick Garnett]

Thanks, Tom. Here is the link, if anyone is interested, to the paper (now about 
8 years old!):

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=855104

It seems to me, for what it's worth, that a ruling for Hobby Lobby would not 
(or need not) be wooden, divisive, or conservative, even if we think (or some 
of us think) that it highlights or confirms what some us might think are 
problems with the RFRA approach.

Best, Rick

Sent from my iPhone

 On Jun 8, 2014, at 4:36 PM, Berg, Thomas C. tcb...@stthomas.edu wrote:

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

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

 -
 Thomas C. Berg
 James L. Oberstar Professor of Law and Public Policy
 University of St. Thomas School of Law
 MSL 400, 1000 LaSalle Avenue
 Minneapolis, MN   55403-2015
 Phone: 651 962 4918
 Fax: 651 962 4881
 E-mail: tcb...@stthomas.edu
 SSRN: http://ssrn.com/author='261564
 Weblog: http://www.mirrorofjustice.blogs.com
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
 Sent: Sunday, June 08, 2014 5:58 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Hobby Lobby/Ellen Katz

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

 sandy

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

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

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

 -
 Thomas C. Berg
 James L. Oberstar Professor of Law and Public Policy University of St. Thomas 
 School of Law MSL 400, 1000 LaSalle Avenue
 Minneapolis, MN   55403-2015
 Phone: 651 962 4918
 Fax: 651 962 4881
 E-mail: tcb...@stthomas.edu
 SSRN: http://ssrn.com/author='261564
 Weblog: http://www.mirrorofjustice.blogs.com
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
 Sent: Sunday, June 08, 2014 3:37 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Hobby Lobby/Ellen Katz

 Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I 
 regret ever more every day that Rehnquist did not assign the opinion to 
 O'Connor, whose opinion at the time at detested because of what I thought was 
 her lassitude on what counted as a compelling interest, but that is small 
 beer indeed compared to the fact that had she been writing for the Court, the 
 (perhaps 

RE: recommended Hobby Lobby posts

[Rick Garnett]

Dear Alan and Chip -

Your conversation is (natch!) insightful and helpful.  For what it's worth, it 
is not clear to me (putting aside things the Supreme Court may or may not have 
said or meant) that either the Establishment Clause or whatever theories of 
church-state relations and religious-freedom-under-law our Constitution 
reflects disallow accommodations that impose[] substantial costs on . . . the 
public.

Why should we regard it as an establishment of religion for the government to 
decide - that is, for (a majority-ish of) us to decide that it is worth it 
to structure an otherwise generally applicable regulatory-and-spending regime 
in such a way that its operation does not impose avoidable burdens on religious 
exercise, even when the expense the community is real?  (To ask this is 
different, it seems to me, than to ask about accommodations that take the form 
of lifting a burden from A and moving it, directly and particularly, to B.  I 
had understood the Gedicks et al. objection to Hobby Lobby's RFRA claim to be 
asking about these.)

I agree, certainly, that religion is different but it seems to me that this 
difference is reflected *both* through the rule against establishments (and I 
know we would disagree about precisely what constitutes an establishment and 
what does not) *and* through an admittedly not-uniform tradition (even if not 
through Free Exercise Clause doctrine) of accommodating religion, religious 
objections, and religious exercise when it's possible to do so.  In our 
tradition, I think, religious freedom is not just a private benefit - 
something that is conferred on particular beneficiaries - but also a public 
good - something we are, as a political community, allowed and even encouraged 
to pursue, promote, and if necessary pay for.  Do you disagree, or am I reading 
too much into Alan's mention of the public?

All the best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edumailto:rgarn...@nd.edu

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

Blogs:

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

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Friday, February 21, 2014 1:22 AM
To: Law  Religion issues for Law Academics
Subject: RE: recommended Hobby Lobby posts


These are very helpful responses, Chip. Let me try to use them to identify and 
clarify where I think we agree and disagree.



1. I agree that Religion is different and the Establishment Clause is part of 
what makes it different. The fact that free speech doctrine requires government 
to allow the exercise of a right even when doing so imposes substantial costs 
on third parties or the public does not mean that religious accommodations can 
impose a similar magnitude of costs on third parties or the public without 
violating the Establishment Clause. I also agree that the Establishment Clause 
limit is hard to identify, but it is certainly there and operates as a 
constraint on accommodations. But my example wasn't intended to suggest that 
the magnitude of costs acceptable in free speech cases parallels the magnitude 
of permissible costs for Establishment Clause purposes. My point was that the 
way we measure costs should operate the same way for both free speech and 
Establishment Clause purposes. In both cases, harm should be evaluated by 
determining the cost of mitigation, not by evaluating the cost of unmitigated 
consequences. If a religious group was going to engage in an unpopular ritual 
-- an animal sacrifice, for example -- and the state wanted to prohibit it from 
doing so to avoid disorder, property damage etc. caused by people who wanted to 
stop the ritual from happening, the state's interest in a RFRA type case should 
be measured in the same way it would be measured in a free speech case -- by 
determining the cost of providing sufficient police to maintain order. Costs 
that are tolerated under the free speech clause may violate the Establishment 
Clause, but we ought to measure them the same way.



2. Here is where we disagree. I don't think the fact that the government is 
unwilling (or is too politically dysfunctional) to adopt a less restrictive 
alternative allows the state to satisfy strict scrutiny review by insisting 
that otherwise feasible less restrictive alternatives are not politically 
available. Consider my prior example about an unpopular speaker. Suppose the 
state asserts that it has a compelling state interest in avoiding the disorder 
that will result from the speaker's public speech. Assume further that a court 

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

[Rick Garnett]

Colleagues -

Two quick things:  First, as Eduardo has said, the cooperation with evil 
question is tricky and (he and I agree) debatable and debated among informed 
Catholics. In my view, though (as Marty and I have discussed a few times), it 
is incomplete to think about the burden the mandate might impose on Notre 
Dame's religious exercise only in cooperation terms (and Fr Jenkins, Notre 
Dame's President, has not so limited his account).  RFRA protects more that a 
religiously motivated desire to avoid (what the claimant regards as) wrongdoing.

Next, I hope that I am not the only one who is taken aback by Prof. Hamilton's  
entirely unsupported but repeated claim that those (admittedly not that many) 
who embrace and follow the Catholic Church's proposals regarding sexuality 
typically have 10-20 children?  I cannot think of a constructive purpose 
that this strange claim could serve in this or any other discussion.

Rick


Sent from my iPhone

On Feb 16, 2014, at 2:23 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:

There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

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



On Feb 16, 2014, at 3:45 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Sunday, February 16, 2014 3:14 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

Is Doug correct as a legal matter that the bishops speak for Notre Dame, as 
opposed to its officials, and the officials' actions are irrelevant?  And that 
the actions of its co-religionist officials are irrelevant to  proof of the 
organization's beliefs?  Why don't the practices of Notre Dame's officials 
prove insincerity in this case?   (I'm assuming that they don't have the 10-20 
children
typically incident to not using birth control and that they follow the vast 
majority of American Catholics in rejecting the belief against contraception).  
How can they claim
a right not to provide contraception for their employees/students in their 
health plan because of complicity if they are using it themselves?

To provide an analogy:   In the prison cases, you can test a prisoner's 
sincerity when he demands kosher food (because it's better than the usual fare),
and claims a conversion to Judaism, but they find pork rinds in his cell, it is 
assumed he is not sincere and does not receive the accommodation (a state
prison general counsel provided this example for me)

Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
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Re: Posner on oral advocacy in religion case

[Rick Garnett]

It is true that the oral argument (available online) is striking and revealing. 
And, it is true that at least one person involved should be embarrassed.

Rick

Sent from my iPhone

On Feb 14, 2014, at 5:49 AM, Steven Jamar 
stevenja...@gmail.commailto:stevenja...@gmail.com wrote:

Judge Posner gives 1L lesson on oral advocacy to Notre Dame's lawyer on oral in 
freedom of religion case.  Pretty basic 1L stuff.  Embarrassing for the 
attorney — and his firm and school.

http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbling_threatens_to_end_7th_Circuit_arg/?utm_source=maestroutm_medium=emailutm_campaign=weekly_email

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


Enduring high school is not the same as growing up Jewish in Prague or 
fighting in the French Resistance. I had no solid basis for being cool in that 
existential motorcycle James Dean absurdist chain-smoking hero sort of way, so 
I gave up being cool and settled for being pleasant.

Garrison Keillor





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RE: The nonprofit contraception services cases

[Rick Garnett]

Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edumailto:rgarn...@nd.edu

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

Blogs:

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

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
 State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 
employees “this is who we are, and if you want to work for us, you should 
expect that who we are will be relevant to the terms of our arrangement with 
you.”

With respect to students, though, it is harder for me to see why Notre Dame 
should not be able to say to prospective students (as Notre Dame does), “This 
is who we are.  If you come here – and you are welcome to, but you don’t have 
to – you should know that our character, mission, aspirations, and values will 
shape the terms of our arrangement with you.”   Is it the view of AU, or of 
others, that the Establishment Clause (or anything else) prevents the 
government from exempting a Catholic (or other mission-oriented) educational 
institution from an otherwise general rule in order to allow the institution to 
say (something like) this to students and the broader world – again, assuming 
that students who get into Notre Dame (a) have plenty of options and (b) know 
full well that Notre Dame aspires to a meaningfully Catholic character?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edumailto:rgarn...@nd.edu

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

[Rick Garnett]

Dear colleagues,

Religious liberty is, of course, a fundamental human right, and so it is not 
clear to me why it should be troubling or surprising that legal regimes would 
be embraced by human-rights advocates (like Marc, Doug, etc.) that respect that 
right by insisting, e.g., that majority-supported legislation (of any type) 
substantially burdening the exercise of that right be closely scrutinized.

Rick Garnett

Sent from my iPhone

On Aug 1, 2013, at 7:47 PM, hamilto...@aol.commailto:hamilto...@aol.com 
hamilto...@aol.commailto:hamilto...@aol.com wrote:

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have chairs).  The two sides were not in the same 
rooms at the same time, obviously.

Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.

Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?

I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be compelling interests, 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.



Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
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RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden

[Rick Garnett]

Dear Marty,

For what it's worth, Doug states succinctly and well what is also my view 
(though, with respect to religious institutions, I believe that the mandate 
burdens religious freedom in the additional, integrity-compromising way that 
has been mentioned).  I do not believe that our commitment to religious freedom 
means that we need to treat as burdens on that freedom (a) requirements that 
employers pay salaries to employees who might use the funds in ways to which 
the employer objects or (b) requirements that citizens pay taxes to governments 
who might use the funds in ways to which the taxpayer objects.  (So, the whole 
it burdens the religious freedom of objectors for governments to provide 
scholarships to kids attending parochial schools line is, I think, misguided.) 
 But, as others have pointed out, the compelled-insurance-coverage context is 
(the district court's ruling notwithstanding) at least distinguishable and, it 
seems to me, rises to the level of a substantial burden!
  -- even if, ultimately, one concludes that complying with the mandate does 
not amount to culpable cooperation with evil and even if, ultimately, one 
concludes that it is a justifiable and unavoidable (given the compelling 
interest, etc.) one.  

True, if one believes that, as a general rule, we should not accommodate 
religious believers and institutions who object to complying with duly enacted 
laws and promulgated regulations (at least some of the plaintiffs in the ACA 
cases have challenged the mandate on administrative-law grounds), then one is 
not going to think the argument for a broader exemption from the mandate is 
very strong.   But, if one does believe that our commitments translate into at 
least a rebuttable presumption in favor of feasible accommodations, this 
strikes me as a good case for one.

Best,

Rick 


Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN page

Blogs:

Prawfsblawg
Mirror of Justice 


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, October 01, 2012 8:01 PM
To: Law  Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

My post on the analogy between exemption from military service and exemption 
from abortion was addressed to Marci's claim that there should be nothing 
special about objection to abortion. That is a much broader claim than just the 
ACA issue.  And there are people in the pro-choice movement pushing against 
conscience protections for medical providers.

As to ACA, I do not think there is a burden when an employer pays salary, and 
the employee then uses the money for purposes the employer considers immoral. 
The salary payments could have been used for anything.

I think the burden on the taxpayer who pays taxes, knowing that the government 
will use the money for purposes the taxpayer considers immoral, is highly 
attenuated, and uniformly outweighed by the government's compelling interest in 
paying taxes.

The ACA looks different to those objecting, and plausibly so, because the money 
is not paid to the employees or to the government. The employer buys a package 
of services that includes the services the employer believes to be immoral, 
including the morning-after and week-after pills that the employer believes 
sometimes kill human beings. The employer contracts for those services and pays 
for those services, and these employers say they cannot in conscience do those 
things.

On Mon, 1 Oct 2012 19:46:50 -0400
 Marty Lederman lederman.ma...@gmail.com wrote:
Fortunately, the question here is far, far removed from whether the 
state can or should require anyone to perform an abortion, or to kill in 
battle.
It is, instead, whether the state can require employers to take some of 
the money they would have used to pay employee salaries, or taxes -- 
some of which would foreseeably have been used to pay for contraception 
(or even abortions, in the case of salaries), anyway -- and instead use 
it to partially subsidize an insurance plan that, like salaries and 
taxes, is used to pay for countless goods and services, some of which 
involve contraception, but only when someone else (the employee) 
chooses to use it for that purpose.  (FWIW, I believe the law does not 
allow HHS to require plans to cover abortions, and the Rule therefore 
does not do so.)

Doug, a couple of your posts here have suggested that even in the cases 
of salaries and taxes being used for contraception, there is a 
substantial burden on the religious exercise of objectors, but one that 
might be overcome by a compelling government interest.  For anyone who 
starts from that view, the HHS would certainly raise a harder question.  
But I am not aware of any employer, or Catholic 

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

[Rick Garnett]

Dear colleagues,

Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the 
decision’s many flaws -- to the decision we’re discussing, at the “Mirror of 
Justice” blog:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html

As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial 
burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an 
exemption-less requirement that the diocese provide insurance coverage for 
elective abortions.  Do those who have been welcoming this decision agree that 
RFRA would not / should not protect the diocese in such a case?

Best, R

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, October 01, 2012 10:55 AM
To: 'Law  Religion issues for Law Academics'
Subject: FW: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

Lyng and Bowen involved no regulation of religious behavior. Lee expressly 
found a burden on free exercise (455 U.S. at 257); the case was decided on 
compelling interest grounds. None of these cases have any relevance to the 
burden issue in the ACA cases.

And by the way, I think that all three were rightly decided.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Monday, October 01, 2012 8:34 AM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

Religious groups and their supporters have been trying to water down 
substantial
for years.   The Alabama rfra doesn't include substantial and neither did the 
failed North Dakota or Colorado
initiatives.  One of the reasons the latter failed is overreaching, though it 
is also attributable to the fact
that the Rutherford Institute and others lobbying for rfras have met their 
match in a number of opposing groups.

The court in the ACA case did little more than apply existing law on the 
interpretation of substantial.  Those arguing
the case was wrongly decided on this issue are arguing for a new standard.  
That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate
substantial burden was to be interpreted according to existing precedents (as 
of 1993 and 2000).  In other words, Lyng, Bowen, and Lee are the
governing interpretations for RFRA.  Subjective views of burden are not part of 
the doctrine.  It would take the Supreme Court to overturn these
decisions to grant a win to the religiously affiliated institutions.

Marci


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

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Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[Rick Garnett]

Colleagues,

I think it needs to be recalled that the cooperation with evil / violation 
of conscience issue is not, in the context of the RFRA and other arguments 
against the HHS mandate, the whole story. Religious freedom, both as a moral 
matter and as a legal one, can be burdened, in ways that call for 
justification, by laws that do not command (what the objector regards as ) 
immoral acts.

Even if, for example, Marty were right that no serious cooperation-with-evil 
argument has been or could be advanced by, say, Notre Dame, it could still be 
(and, I think, clearly is) the case that the mandate burdens, say, Notre Dame's 
legally protected religious freedom rights

Best, Rick

(Sorry for the iPhone).

Sent from my iPhone

On Sep 30, 2012, at 2:39 PM, Christopher Lund 
l...@wayne.edumailto:l...@wayne.edu wrote:

We’ve talked about this before a bit on the listserv, and I don’t want to 
rehash old arguments—although I think I agree with Eugene Volokh’s comments 
when Marty raised this issue earlier, 
http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html.

But let’s assume for the moment that Marty is right, because it raises another 
issue.  So let’s stipulate that Catholic Church’s traditional doctrine of 
cooperation-with-evil actually doesn’t forbid this.  The Catholic Bishops’ 
position is entirely new.  It’s not a mere application of the church’s old 
cooperation-with-evil doctrine.  To help us imagine this, let’s say the Church 
issues the following statement:

For a long time, as you all know, we have found abortion immoral.  But this new 
Health Care Act has brought the issue to prominence and crystallized it for us. 
 We have had reason to consider more deeply certain particular issues.  And we 
decide today that abortion is so grievously sinful that we must change our 
position on cooperation-with-evil accordingly.  We today expand the doctrine to 
apply in this situation.  We will work out the theological details later; maybe 
a wholesale revision of the doctrine of cooperation-with-evil is in order.  But 
we are convinced that the Health Care Act will cause us to violate God’s will.  
That is what matters; the doctrinal details can be worked out later.

It seems to me that this is okay, that churches can change their theologies, 
and that they can choose to do theology by adjudication rather than rulemaking. 
 Is there a reason why this should be wrong?  Is it necessarily insincere?  It 
seems to me to be pretty consistent with the way human beings reason generally.

Best,
Chris

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, September 30, 2012 12:57 PM
To: Law  Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My post bounced, apparently because of the number of recipients!  Resending 
without so many cc's.  Sorry for any duplicate receipts.
On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
For what it's worth, at our Georgetown Conference on this issue last week (a 
video of which should be posted soon), there appeared to be a great deal of 
skepticism among the Catholic theologians and other scholars present (some of 
whom I am copying here, along with some others at the conference) that where an 
employer provides employees with access to a health-insurance plan on 
compulsion of law; the services in question are part of the plan virtue of 
legal mandate; and the use of the plan to pay for any particular heath care 
service is entirely within the discretion of the employee and her physician, 
the employer does not thereby engage in material cooperation with evil just 
because some employees might choose to use the plan (unbeknownst to the 
employer) to subsidize the use of contraception.

I am hardly an expert in such questions of Catholic doctrine; but I, for one, 
have yet to see any serious argument from those objecting to the Rule that 
compliance would result in a violation of religious obligations on account of 
such cooperation.  That doesn't mean there is no such argument out there, of 
course.  But I think it helps to explain in part why plaintiffs in most of 
these cases have thus far not articulated a theory of substantial burden based 
on cooperation-with-evil, and why some courts are so skeptical of the 
allegation of a substantial burden -- namely, that such arguments appear to 
prove far too much w/r/t an employer who does not raise a similar objection to 
the inevitable use of its salary payments and taxes (via the intervention of 
genuinely independent choice on the part of the state or other private parties) 
for numerous forms of conduct that the employer deems to be wrongful.

Doug (and others):  I would be extremely grateful for any citations to Jewish 
or other non-Catholic treatments of this issue of 

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

[Rick Garnett]

Dear Marty,

I am sorry I cannot type enough (iPhone!) in response now; we disagree, it 
appears, about the American school system and about the secular educational 
objectives of the political community

Sent from my iPhone

On Jun 30, 2012, at 10:49 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Rick,

The statute says that the school district must use secular criteria to 
determine whether the release time education qualifies for credits, but those 
criteria have nothing to do with fulfillment of any of the secular educational 
objectives of the school (they include the number of hours of instruction; a 
syllabus that reflects course requirements; a method of assessment used by 
the religious school teachers; and whether the teachers are certified).  The 
School District here, for admirable nonentanglement reasons, entered into an 
arrangement with Oakbrook Preparatory School, an accredited private Christian 
school, by which Spartanburg Bible School could submit its grades through 
Oakbrook to Spartanburg High School. Under the arrangement, Oakbrook agreed to 
review and monitor Spar- tanburg Bible School’s curriculum, its teacher 
qualifications, and educational objectives, and to award course credit and 
grades given by the Bible School before transferring them to Spartanburg High 
School. In carrying out the arrangement, Oakbrook reviewed syllabi, spoke with 
instructors, suggested minor curricular adjustments, and satisfied itself that 
the Spar- tanburg Bible School course was academically rigorous.

To my mind, this delegation raises a serious Larkin problem.  But that aside, 
the fact that the accredited school is an intermediary that transfers the 
grades based on an assessment that the religious course was academically 
rigorous does not cure the problem, which is that this education is designed 
to be religious in nature, and not to advance any of the secular objectives of 
the public schools.

You quote with apparent approval Judge Niemeyer's governing principle that 
private religious education is an integral part of the American school 
system.  But that stated principle is the problem, not a virtue.  Providing 
families with the option of achieving the society's secular educational 
objectives at a private school of their choice, religious or secular, is a 
governing principle of the American school system.  (And securing the freedom 
of families to provide or obtain a private religious education outside the 
American school system is surely a governing principle of our constitutional 
order (Meyer, Pierce, etc.).)  But religious education as such not only is 
not an integral part of the American school system -- as a constitutional 
matter, it can't be part of that system at all.

On Sat, Jun 30, 2012 at 10:29 AM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear Marty,

In this case, if I am reading the opinion correctly, the credits in question 
are coming from Oakbrook Preparatory

School, an accredited private Christian school.


In my view, the decision is welcome because -- as Marc says, below -- I think 
it would be the wrong approach to say that, when a student transfers from a 
non-state school to a state school, he or she may only receive credit for 
courses with the requisite secular content.  As Judge Niemeyer wrote:

Also important to our conclusion is the governing principle

that private religious education is an integral part of the

American school system. Indeed, States are constitutionally

obligated to allow children and parents to choose whether to

fulfill their compulsory education obligations by attending a

secular public school or a religious private school.

See Pierce

v. Soc’y of Sisters

, 268 U.S. 510, 534-35 (1925). It would be

strange and unfair to penalize such students when they

attempt to transfer into the public school system by refusing

to honor the grades they earned in their religious courses,

potentially preventing them from graduating on schedule with

their public school peers. Far from establishing a state religion,

the acceptance of transfer credits (including religious

credits) by public schools sensibly

accommodates the genuine

choice among options public and private, secular and religious.

Zelman v. Simmons-Harris

, 536 U.S. 639, 662 (2002)

(upholding an Ohio voucher initiative for this reason).

The court was careful to note that the school district had not encouraged 
students to participate or inappropriately endorsed religion.  Like Marc, I can 
imagine some abuses, and hard cases, but this one does not seem (to me) to be 
one.

Best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981tel:574-631-6981 (office)
574-631-4197tel:574-631-4197 (fax)


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun

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

[Rick Garnett]

Dear Marty,

Credits are awarded, I assume, routinely when students transfer from, say, St 
Joseph High School to Thomas Jefferson High School for, say, courses in 
Theology. In my view, this does not raise Establishment / Larkin issues. Our 
disagreement, I suppose, proceeds from a different view of what the state is 
doing when it awards credits to students. I think, again, that Judge Niemeyer 
is right.

Best, R

Sent from my iPhone

On Jun 30, 2012, at 11:13 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I should add that, wholly apart from whether the particular Spartanburg Bible 
School class was in any way, as Rick suggests, of some secular educational 
value (which was, I repeat, not the basis for the court's holding), the South 
Carolina statute at issue expressly provides that [a] school district board of 
trustees may award high school students no more than two elective Carnegie 
units for the completion of released time classes in religious instruction.

That is to say, the credits are specifically and unequivocally being awarded 
for the religious instruction as such.

On Sat, Jun 30, 2012 at 10:47 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Rick,

The statute says that the school district must use secular criteria to 
determine whether the release time education qualifies for credits, but those 
criteria have nothing to do with fulfillment of any of the secular educational 
objectives of the school (they include the number of hours of instruction; a 
syllabus that reflects course requirements; a method of assessment used by 
the religious school teachers; and whether the teachers are certified).  The 
School District here, for admirable nonentanglement reasons, entered into an 
arrangement with Oakbrook Preparatory School, an accredited private Christian 
school, by which Spartanburg Bible School could submit its grades through 
Oakbrook to Spartanburg High School. Under the arrangement, Oakbrook agreed to 
review and monitor Spar- tanburg Bible School’s curriculum, its teacher 
qualifications, and educational objectives, and to award course credit and 
grades given by the Bible School before transferring them to Spartanburg High 
School. In carrying out the arrangement, Oakbrook reviewed syllabi, spoke with 
instructors, suggested minor curricular adjustments, and satisfied itself that 
the Spar- tanburg Bible School course was academically rigorous.

To my mind, this delegation raises a serious Larkin problem.  But that aside, 
the fact that the accredited school is an intermediary that transfers the 
grades based on an assessment that the religious course was academically 
rigorous does not cure the problem, which is that this education is designed 
to be religious in nature, and not to advance any of the secular objectives of 
the public schools.

You quote with apparent approval Judge Niemeyer's governing principle that 
private religious education is an integral part of the American school 
system.  But that stated principle is the problem, not a virtue.  Providing 
families with the option of achieving the society's secular educational 
objectives at a private school of their choice, religious or secular, is a 
governing principle of the American school system.  (And securing the freedom 
of families to provide or obtain a private religious education outside the 
American school system is surely a governing principle of our constitutional 
order (Meyer, Pierce, etc.).)  But religious education as such not only is 
not an integral part of the American school system -- as a constitutional 
matter, it can't be part of that system at all.

On Sat, Jun 30, 2012 at 10:29 AM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear Marty,

In this case, if I am reading the opinion correctly, the credits in question 
are coming from Oakbrook Preparatory

School, an accredited private Christian school.


In my view, the decision is welcome because -- as Marc says, below -- I think 
it would be the wrong approach to say that, when a student transfers from a 
non-state school to a state school, he or she may only receive credit for 
courses with the requisite secular content.  As Judge Niemeyer wrote:

Also important to our conclusion is the governing principle

that private religious education is an integral part of the

American school system. Indeed, States are constitutionally

obligated to allow children and parents to choose whether to

fulfill their compulsory education obligations by attending a

secular public school or a religious private school.

See Pierce

v. Soc’y of Sisters

, 268 U.S. 510, 534-35 (1925). It would be

strange and unfair to penalize such students when they

attempt to transfer into the public school system by refusing

to honor the grades they earned in their religious courses,

potentially preventing them from graduating on schedule with

their public school peers. Far from

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

[Rick Garnett]

, an accredited private Christian 
school, by which Spartanburg Bible School could submit its grades through 
Oakbrook to Spartanburg High School. Under the arrangement, Oakbrook agreed to 
review and monitor Spar- tanburg Bible School’s curriculum, its teacher 
qualifications, and educational objectives, and to award course credit and 
grades given by the Bible School before transferring them to Spartanburg High 
School. In carrying out the arrangement, Oakbrook reviewed syllabi, spoke with 
instructors, suggested minor curricular adjustments, and satisfied itself that 
the Spar- tanburg Bible School course was academically rigorous.

To my mind, this delegation raises a serious Larkin problem.  But that aside, 
the fact that the accredited school is an intermediary that transfers the 
grades based on an assessment that the religious course was academically 
rigorous does not cure the problem, which is that this education is designed 
to be religious in nature, and not to advance any of the secular objectives of 
the public schools.

You quote with apparent approval Judge Niemeyer's governing principle that 
private religious education is an integral part of the American school 
system.  But that stated principle is the problem, not a virtue.  Providing 
families with the option of achieving the society's secular educational 
objectives at a private school of their choice, religious or secular, is a 
governing principle of the American school system.  (And securing the freedom 
of families to provide or obtain a private religious education outside the 
American school system is surely a governing principle of our constitutional 
order (Meyer, Pierce, etc.).)  But religious education as such not only is 
not an integral part of the American school system -- as a constitutional 
matter, it can't be part of that system at all.

On Sat, Jun 30, 2012 at 10:29 AM, Rick Garnett 
mailto:rgarn...@nd.edurgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear Marty,

In this case, if I am reading the opinion correctly, the credits in question 
are coming from Oakbrook Preparatory

School, an accredited private Christian school.


In my view, the decision is welcome because -- as Marc says, below -- I think 
it would be the wrong approach to say that, when a student transfers from a 
non-state school to a state school, he or she may only receive credit for 
courses with the requisite secular content.  As Judge Niemeyer wrote:

Also important to our conclusion is the governing principle

that private religious education is an integral part of the

American school system. Indeed, States are constitutionally

obligated to allow children and parents to choose whether to

fulfill their compulsory education obligations by attending a

secular public school or a religious private school.

See Pierce

v. Soc’y of Sisters

, 268 U.S. 510, 534-35 (1925). It would be

strange and unfair to penalize such students when they

attempt to transfer into the public school system by refusing

to honor the grades they earned in their religious courses,

potentially preventing them from graduating on schedule with

their public school peers. Far from establishing a state religion,

the acceptance of transfer credits (including religious

credits) by public schools sensibly

accommodates the genuine

choice among options public and private, secular and religious.

Zelman v. Simmons-Harris

, 536 U.S. 639, 662 (2002)

(upholding an Ohio voucher initiative for this reason).

The court was careful to note that the school district had not encouraged 
students to participate or inappropriately endorsed religion.  Like Marc, I can 
imagine some abuses, and hard cases, but this one does not seem (to me) to be 
one.

Best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981tel:574-631-6981 (office)
574-631-4197tel:574-631-4197 (fax)


From: mailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marc DeGirolami 
[mailto:marc.degirol...@stjohns.edumarc.degirol...@stjohns.edumailto:marc.degirol...@stjohns.edu]
Sent: Saturday, June 30, 2012 10:13 AM

To: Law  Religion issues for Law Academics
Subject: RE: Providing public school credits for release-time religious classes

One conceivable difficulty is the entanglement problem.  When a student 
transfers in to public school from a religious school, there may be several 
different sorts of courses that the student will have taken which may combine, 
in various degrees, “religious” and “secular” components.  I’m not sure I agree 
with Marty that it is always the case that the transferred credits are awarded 
solely for purely secular courses.  Segregating out the secular and religious 
components can be difficult

RE: Religious exemptions and discrimination

[Rick Garnett]

Friends,

This bounced back, as too long, and so I’m trying again.  Sorry if you receive 
it twice!

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/

From: Rick Garnett
Sent: Monday, June 25, 2012 1:47 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious exemptions and discrimination

Dear colleagues,

I’m coming to this discussion late, and I apologize (and realize that many of 
us are today focused more on immigration and the Eighth Amendment!).  The first 
sentence of Eugene’s response to Bob expresses really well, I think, a key 
point in these debates.  As he says, “discrimination” means many different 
things, and not all of these things are wrong.  Shamelessness alert:  I have a 
chapter in a forthcoming book (which grew out of a really interesting 
conference that Austin Sarat organized at Alabama last year), called “Religious 
Freedom and the Nondiscrimination Norm,” which tries to explore the issue in a 
bit more detail.  Here’s the first paragraph of the abstract:

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, 
we believe that governments like ours – secular, liberal, constitutional 
governments – may, and should, take regulatory and other steps to prevent, 
discourage, and denounce it. However, it is not true that “discrimination” is 
always or necessarily wrong. Nor is it the case that governments always or 
necessarily should or may regulate or discourage it even when it is. Some 
wrongs are beyond the authorized reach of government policy; some are too 
difficult or costly to identify, let alone regulate; others are none of the 
government’s business. . . .

The full abstract, and the paper, are available here:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087599

Best,

R

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 3:50 PM
To: Law  Religion issues for Law Academics
Subject: Religious exemptions and discrimination

I think this is combining under the rubric of “discrimination” 
many different things.  First, item 2 doesn’t involve discrimination based on 
the passenger’s race, religion, sex, and so on which is why businesses 
generally are free to discriminate against patrons with wine, or employees who 
drink wine.  The relevant law here is a sort of “common carrier” rule that 
imposes on a few businesses (and only a few) the obligation to do business with 
pretty much everyone, an obligation that is much broader than that imposed by 
antidiscrimination law.  Relatedly, item 1 doesn’t involve discrimination in 
the antidiscrimination law sense (except insofar as one can argue that such a 
refusal is sex discrimination because only women take Plan B, which I doubt 
will succeed).  Indeed, I take it that all of us would agree that a supermarket 
could choose to refuse to stock condoms (male or female) or over-the-counter 
contraceptives.  Rather, the relevant law is a professional obligation imposed 
on pharmacies to stock either all in-demand pharmaceuticals, or at least to 
stock this particular pharmaceutical.

Second, even true discrimination rules have historically been 
applied more narrowly in some areas than in others, and this reflects (in 
addition to federalism concerns) real differences in the way discrimination 
affects people.  Title II of the Civil Rights Act, for instance, does not 
constrain pharmacies, cab drivers, or professional photographers; indeed, it 
applies to only a narrow range of places of public accommodation.  It does, 
however, affect all businesses with more than a threshold number of employees.  
And this makes sense, because as to many places of public accommodation, the 
chief harm with discrimination is only dignitary:  If Elaine Huguenin refuses 
to photograph a same-sex commitment ceremony, the couple might be annoyed by 
the refusal, but they can probably find another photographer at little cost, at 
least in most places.  (Indeed, the couple may prefer to hire a photographer 
who they feel will see their ceremony as beautiful, and thus be inspired to 
photograph it that way, rather than a photographer who is being forced by law 
to photograph something she disapproves of.)  On the other hand, employment 
discrimination can dramatically affect people’s

RE: The contraception mandate under Empoyment Division v Smith

[Rick Garnett]

Dear colleagues,

Here is the complaint, filed today by the University of Notre Dame, challenging 
the mandate on RFRA, FEC, and other grounds.  Among other things, it has the 
information (I think) that Kevin is asking about.

http://opac.nd.edu/assets/69013/hhs_complaint.pdf

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Pybas, Kevin M
Sent: Monday, May 21, 2012 11:13 AM
To: Law  Religion issues for Law Academics
Subject: RE: The contraception mandate under Empoyment Division v Smith

I'm very late to this thread but does anyone know where I might find a list of 
parties exempt, wholly or partially, from the health care reform law? I 
believe, for example, that the Amish are exempt. But am interested in the 
complete exemption picture, so will appreciate any guidance anyone can offer.

Thanks.
Kevin Pybas
Missouri State University

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Saturday, February 11, 2012 10:53 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The contraception mandate under Empoyment Division v Smith

The first claim in the pending complaints is RFRA, which of course completely 
avoids the Smith problem.  The free exercise count alleges that there are both 
statutory and administrative exceptions that affect tens of millions of 
Americans who will get no coverage, or less than full coverage, from their 
employers, so that the law is not neutral and generally applicable. I have not 
looked at any of these provisions. But the employers who are permitted to 
provide less than full coverage seems the most powerful example here. These 
exceptions go not only to general applicability, but also to the compelling 
interest argument under both RFRA and the Free Exercise Clause

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: Basketball tournaments on the Sabbath

[Rick Garnett]

If only common sense -- and an accommodating spirit, respect for religious 
liberty, a tolerance and even appreciation for diversity and pluralism -- of 
the kind that seems to have won the day with the TAPP, and that most on this 
list are (rightly) celebrating, were playing a similar role in the halls of the 
HHS!  Here's hoping . . .

[insert emoticon here]

Best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981 (office)
574-631-4197 (fax)


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu 
[paul.finkel...@albanylaw.edu]
Sent: Saturday, March 03, 2012 3:31 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Basketball tournaments on the Sabbath

The common sense is what is often lacking and with a sense of fairness and 
toleration.  Apparently for the leaders of the TAPP common sense means 
everyone is a Christian and all people have a Sunday sabbath.  The lawyers 
serve as educator to teach common sense and respect for other religions.

Connected by DROID on Verizon Wireless


-Original message-
From: Alan Armstrong alanarmstrong@verizon.net
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00
Subject: Re: Basketball tournaments on the Sabbath

My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.commailto:a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:

Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint’s state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side’s state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
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RE: RFRA substantial burden analysis

[Rick Garnett]

From: Rick Garnett
Sent: Tuesday, February 14, 2012 10:36 AM
To: Law  Religion issues for Law Academics; Walsh, Kevin
Cc: Crowley, Donald; conlawp...@lists.ucla.edu
Subject: RE: RFRA substantial burden analysis
Dear Marty,
I agree with you that there is no moral or religious-liberty right to object to 
paying (that is, to opt out of) taxes on the ground that the government, whose 
operations are in part funded by those taxes, does things to which one objects 
on religious.  (So, Flast v. Cohen is wrong.)  I assume we agree, though, that 
a situation in which the government says to A, take some of your money and pay 
for X activity, to which A objects on religious grounds?  In my view, the 
original mandate (which, despite Friday's announcement, is still the 
law-on-the-books) is more like the latter situation than the former (while the 
voucher question is more like the former).  The question is whether the 
announced (but not yet enacted) change to the mandate moves the situation 
closer to the former.  (Robby George has a post, at MOJ and at Public 
Discourse, running through the cooperation-with-evil analysis.)

I also agree that it should take something more than the assertion X policy 
substantially burdens my free exercise of religion to establish that X 
actually does, for RFRA purposes, burden the speaker's free exercise of 
religion.   But, what is that something more?  We agree, I think, that 
RFRA-interpreting courts can inquire into sincerity, but can / should they 
inquire into the theological merits of the assertion?  So, if Catholic 
Institution Inc. asserts that it believes complying with the mandate would 
substantially burden its free exercise of religion - in part because of its 
understanding of cooperation-with-evil analysis and categories - should the 
fact that there are prominent Catholic theologians and ethicists who say no, 
actually, cooperation with the mandate would not be culpable matter?  I'm not 
sure.
There is also (as we have discussed) the question of scandal (a Catholic 
institution has religion-based reasons, apart from the cooperation-with-evil 
issue, for avoiding causing scandal by appearing to cooperate with the 
subsidization of abortion-causing drugs).  In any event (for what it's worth), 
my view is that the mandate (both pre- and post compromise) employs a 
troublingly (is that a word?) crabbed definition of religious employer for 
purposes of the actual exemption, and Friday's promised tweaking does little to 
fix it.
All the best,
Rick


Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman

Sent: Tuesday, February 14, 2012 9:18 AM
To: Walsh, Kevin
Cc: Law  Religion issues for Law Academics; Crowley, Donald; 
conlawp...@lists.ucla.edu

Subject: Re: RFRA substantial burden analysis
What Chip and I -- see my Mirror of Justice post here: 
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-question-from-marty-lederman.html
 -- have been trying to get at is that the state should not simply accept as a 
given that the College's sincerely held religious beliefs prohibit it from 
providing coverage for contraception, sterilization, abortion, or related 
education and counseling.
It's not that the state (or Chip or I) has a better understanding of Catholic 
doctrine than does the hypothetical Catholic employer -- far from it.  But what 
the state does know is that every person's or employer's dollars and other 
resources are used, every day, in various and sundry ways (through taxes, wages 
paid, etc.), to support conduct that the person in question believes is sinful, 
particularly when the particular use of the $$ are determined not by the person 
(employer) herself, but by another to whom she transfers the money -- in this 
case, the employee, whose independent choice of how the $$ will be used breaks 
the chain of responsibility and/or endorsement of the employer whose $$ they 
once were, just as the State of Ohio was not responsible for the religious 
education funded by the vouchers in Zelman and just as the school district in 
Mergens was not responsible for, and did not endorse, the religious content of 
the student activities compelled by the Equal Access Act.  The employee can and 
does, for example, use the employer's wages, phones, and computers to procure 
contraception  . . .  and abortions.  And the state uses the employer's tax 
dollars to do many things that the employer would not itself do because of  
moral or religious injunctions -- just as it regularly uses my dollars, and 
yours, in ways that we find religiously or otherwise indefensible.
More to the point, in all these other contexts, the employers in question do 
not act as though their sincerely held religious beliefs prohibit them from 
allowing their resources to be used for contraception, sterilization

RE: Hosanna-Tabor

[Rick Garnett]

, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:


I think that the decision has much broader implications for church autonomy. I 
have just developed this argument in some detail in a posting on Religion 
Clause, for those who may be interested in reading it. 
http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html
  I welcome any reactions.

Howard Friedman


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of John Taylor
Sent: Wed 1/11/2012 3:26 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor

There was a very good panel on the case at AALS Saturday morning (organized by 
Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie 
Griffin) and it included, among other things, an exchange between Rick Garnett 
and Bob Tuttle on the rationale for the ministerial exception.  While both 
acknowledged that they were overstating their differences, the contrast (as I 
understood it) was one between viewing the ministerial exception as completely 
(or almost completely) about the judicial disability to decide religious 
questions (a.k.a. the hands-off principle, the no religious decisions 
principle per Eugene) and viewing it as protecting certain kinds of decisions 
made by religious groups whether religious questions have to be decided or not. 
 (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.)

While I agree that autonomy is a loaded word that the majority did not use 
and I agree that this case doesn't and isn't meant to reach beyond employment 
discrimination claims by ministers, the second view does seem to me 
potentially a bit broader than the first.  For example, Caroline Corbin and 
Leslie Griffin suggested at the panel that since this was a retaliation case, 
all the court really had to decide was whether there had been retaliation and 
this was not a religious question.  (Their argument, I think, was that the 
church's response -- it was retaliation based on religious principle -- is 
irrelevant unless there's a religious exemption from the retaliation provisions 
in the ABA.  Since Smith forecloses the latter argument, they suggested, you 
could decide the case without getting beyond the fact of retaliation, which was 
essentially admitted by the church.)  That argument may have some force if one 
thinks that the ministerial exception is entirely about disability to decide 
religious questions, but it has little force if one simply says, Look, the 
idea that religious groups get to decide who will play important spiritual 
roles without state interference is very old, and state interference in the 
selection of clergy is at the core of what the Establishment Clause meant to 
forbid.  If she's a minister, the state can't second-guess that decision in an 
employment discrimination suit.  Period.

At least to me, the majority opinion reads like the quote at the end of the 
last paragraph.  It doesn't seem to hold out any possibility that some 
employment discrimination cases might be within the judiciary's competence to 
decide if only it could do so without getting into religious questions.  One 
could perhaps reach the same result by saying Where it's a discrimination 
claim, religious questions will always be involved and thus the 
no-religious-decisions principle explains everything.  Some panelists on 
Saturday appeared to express that view, and it might be correct.  But it's 
striking to me that this argument is made only by Alito.  The majority opinion 
seems to me closer in spirit to Rick's idea that maybe the hiring and firing of 
ministers is a matter of sphere sovereignty -- the state's authority to 
regulate here just runs out.  I think this is also the approach Doug asked them 
to take, and it's pretty similar to what we used to call church autonomy back 
in the day.  I understand the (good) reasons for some discomfort with the term, 
but I'm not sure the idea is all that different.  (At least in this context, 
I'm not sure that the difference between autonomy and internal church 
governance amounts to much.  Again, I agree with Marci and Doug that if this 
is church autonomy, it doesn't reach outside employment discrimination.)

John Taylor
Professor and Associate Dean for Academic Affairs
WVU College of Law



 Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu 
 1/11/2012 2:08 PM 
While there is a lot of merit in what Eugene writes, it seems to me that he is 
identifying three arguments in support of the ministerial exemption:

1. It has strong historical roots.

2. There is a freedom of association dimension to it.

3. It is very circumscribed in its scope and involves far less judicial 
intrusion into executive and legislative decisions.

All are valid points. But I'm not sure they adequately distinguish why this 
particular set of religious decisions gets

RE: Hosanna-Tabor

[Rick Garnett]

Dear Bruce,

As you say, these are deep and interesting questions.  For what it's worth, I 
don't think the only or best alternative to a warranted for prudential reasons 
carve-out from the state's otherwise applicable authority view of the 
ministerial exception is an absolutist two realms model.  I *do* believe 
that a whole lot of our history is the story of the working out of, evolution 
of, wrestling with, and attacks on the Gelasian two there are description, 
but part of that story is (obviously) the development of nation-states and 
constitutional liberal democracies.  As I see it (I think!), my colleague Bob 
Rodes' use of the term nexus to describe church-state relations is helpful, 
and maybe describes things both more accurately and more attractively than, 
say, two [temporal] realms.  In any event, I think we can (and should) say 
that the older, not entirely supplanted model lives on in the idea that 
political authority is limited in (at least) two ways:  constitutionally 
(through structural features with which we are familiar and also through 
Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that 
there are other legitimate authorities and societies, besides political 
authorities and societies.  This is not absolutism -- it does not absolutize 
either the liberal state or the two realms image -- and it's not even 
autonomy in a full-blown sense, but it is pluralism.  And, as Mark DeWolfe 
Howe suggested, way back when Kedroff was decided, our Religion Clauses and 
Constitution *can* (still) be understood in a way that's consonant with this 
pluralism.  The ministerial exception is usefully thought of, I think, a 
still-relevant manifestation of this pluralism (rather than, again, only a 
concession made by the state for the state's own reasons).  Figuring out what 
exactly the content and contours of this manifestation should be, in terms of 
legal doctrine and methodology, should be is, no doubt, a challenge, and 
reasonable people will disagree about it.  But, I think the Court was right to 
emphasize the *right* -- the authority -- of religious communities to select 
those who will personify their teachings and faith.

All the best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981 (office)
574-631-4197 (fax)

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Professor Ledewitz [ledew...@duq.edu]
Sent: Friday, January 13, 2012 8:42 AM
To: Law  Religion issues for Law Academics
Subject: Re: Hosanna-Tabor

The ministerial exception raises very deep questions about the nature of
religion and its relation to everything else. Must it rest on the theory
of two realms? Doug Laycock's reference to the child in school
illustrates these questions. If the word God were removed from the
Pledge, the child would still have the right to refuse to say the
Pledge, but no one would claim that the rest of the class cannot recite
it or that the student could not be invited to recite. Whatever the
problem of the current Pledge is, it does not seem to me to be a matter
simply of the rights of the child. It must have to do with the proper
role of government.

On 1/12/2012 10:09 PM, Douglas Laycock wrote:
 People could take an absolutist view of two realms in the Founders' time; 
 they obviously cannot any more, with the enormous expansion of government.

 My commitment to religious liberty, including the ministerial exception, is 
 based in a deep commitment to civil liberties more generally. There should be 
 no inconsistency in protecting the rights of believers in Hosanna-Tabor and 
 protecting the rights of nonbeliever with respect to the Pledge. Both are 
 about various ways in which government interferes with the religious beliefs 
 and practices of individuals and groups.

 Of course imposing a minister on an unwilling congregation is a far more 
 serious intrusion than asking (but not requiring) school children to give a 
 brief and generic affirmation of faith. But such judgments about the weight 
 of violations do not go to the basic point. My commitment is to liberty for 
 all.

 On Thu, 12 Jan 2012 17:48:47 -0500 (EST)
   ledew...@duq.edu wrote:

 I would like to return to the panel at AALS that John Taylor mentioned.
 Two of the panelists arguing in favor of the ministerial exception, Chris
 Lund and Douglas Laycock, would not be considered pro-religion in the
 conventional sense—both believe for example that the Pledge of Allegiance
 is in principle unconstitutional.  Their support of the ministerial
 exception could not really be based on history or the need for an
 unfettered religious presence in society.  So, upon what was their support
 ultimately based—what underlying worldview was being urged?

 Although only mentioned once on the panel, I think the worldview at stake
 was the “two realms” 

RE: Supreme Court sides with church on decision to fire employee on religious grounds

[Rick Garnett]

Dear Marci,

I think you are right about the second sentence, but I disagree with your 
second.  The opinion seems clearly to reach beyond clergy.

Best wishes,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/
Law, Religion, and Ethicshttp://lawreligionethics.net/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, January 11, 2012 12:34 PM
To: Law  Religion issues for Law Academics
Subject: Re: Supreme Court sides with church on decision to fire employee on 
religious grounds

The decision is much narrower than Joel's description.  It does not cover all 
employees of religious organizations--only clergy.  And it only involves claims 
involving discrimination against the religious organization,
leaving open litigation from even clergy on contract and tort theories.

Marci



On Jan 11, 2012, at 12:26 PM, Joel wrote:



The Supreme Court has sided unanimously with a church sued for firing an 
employee on religious grounds, issuing an opinion on Wednesday that religious 
employers can keep the government out of hiring and firing decisions.

In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued 
that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, 
Mich., had discriminated against her under the Americans With Disabilities Act 
by refusing to reinstate her to her job after she took leave for narcolepsy.


http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/


Joel L. Sogol
Attorney at Law
811 21st Ave.
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx (205) 345-0971
email:  jlsa...@wwisp.commailto:jlsa...@wwisp.com
website: www.joelsogol.comhttp://www.joelsogol.com
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts.

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RE: Supreme Court sides with church on decision to fire employee on religious grounds

[Rick Garnett]

Dear Marci,

I guess not, but I think people usually think of clergy as ordained, or as 
otherwise officially designated.  I think the opinion constitutionalizes an 
exception that covers a broader category of ministers (including, of course, 
many lay teachers at parochial schools, who are not usually referred to as 
clergy.).

Best wishes,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, January 11, 2012 2:26 PM
To: Law  Religion issues for Law Academics
Subject: Re: Supreme Court sides with church on decision to fire employee on 
religious grounds

Rick--I meant by clergy whatever the Court is saying is a minister I 
did not intend ordained clergy.
Do we still disagree?

Marci


On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote:


Dear Marci,

I think you are right about the second sentence, but I disagree with your 
second.  The opinion seems clearly to reach beyond clergy.

Best wishes,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

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Law, Religion, and Ethicshttp://lawreligionethics.net/

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, January 11, 2012 12:34 PM
To: Law  Religion issues for Law Academics
Subject: Re: Supreme Court sides with church on decision to fire employee on 
religious grounds

The decision is much narrower than Joel's description.  It does not cover all 
employees of religious organizations--only clergy.  And it only involves claims 
involving discrimination against the religious organization,
leaving open litigation from even clergy on contract and tort theories.

Marci



On Jan 11, 2012, at 12:26 PM, Joel wrote:




The Supreme Court has sided unanimously with a church sued for firing an 
employee on religious grounds, issuing an opinion on Wednesday that religious 
employers can keep the government out of hiring and firing decisions.

In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued 
that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, 
Mich., had discriminated against her under the Americans With Disabilities Act 
by refusing to reinstate her to her job after she took leave for narcolepsy.


http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/


Joel L. Sogol
Attorney at Law
811 21st Ave.
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx (205) 345-0971
email:  jlsa...@wwisp.commailto:jlsa...@wwisp.com
website: www.joelsogol.comhttp://www.joelsogol.com
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts.

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RE: Hosanna-Tabor

[Rick Garnett]

Dear Mark,

In my view, one of the welcome aspects of the Chief Justice's opinion is that 
it seems to make the *reason* for the employment action in question irrelevant 
. . . assuming we are dealing with a ministerial employee who is challenging 
his or her termination:


The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for 
firing Perich—that she violated the Synod’s commitment to internal dispute 
resolution—was pretextual. That suggestion misses the point of the ministerial 
exception. The purpose of the exception is not to safeguard a church’s decision 
to fire a minister only when it is made for a religious reason. The 
exceptioninstead ensures that the authority to select and controlwho will 
minister to the faithful—a matter strictly ecclesiastical, Kedroff, 344 U. 
S., at 119—is the church’s alone.4

Best,

Rick

Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981 (office)
574-631-4197 (fax)


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Wednesday, January 11, 2012 11:19 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor

What if the church board fires a minister and admits, prior to the filing of an 
action, that it was not for religious reasons but because he was disabled or 
because of his race or for some other reason that ordinarily would be 
impermissible. If the church states that there is no religious reason for the 
firing – if it says that the discrimination is not based on any religious tenet 
– does the Court’s holding protect the church? Perhaps the point is that a 
court simply can’t take cognizance of a religious organization’s reason for 
firing a minister, or involve itself in such a  case, even if there is no 
dispute about the reason being nonreligious. But I’m not sure.

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 David Cruz
Sent: Wednesday, January 11, 2012 5:58 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Hosanna-Tabor

It seems to me an easy distinction between the case of the undocumented 
minister posited by Howard and today's case is that if the government deports 
someone for being unlawfully present, that is in no way predicated upon a 
decision by a church to select that person as a minister; the church's decision 
is simply irrelevant to the government's legal claim for deportation.  Wrongful 
termination suits, grounded in tort law or antidiscrimination law, however, do 
depend upon a church's reasons for firing someone, which is what I take the 
Court's opinion to be getting at.  Similar reasoning would apply to questions 
of ministers' arrestability.  The emphasis, it seems to me, should be less on 
civil interference with employment clergy and more on civil interference with 
selection (or de-selection) of clergy.
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:

I think that the decision has much broader implications for church autonomy. I 
have just developed this argument in some detail in a posting on Religion 
Clause, for those who may be interested in reading it. 
http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html
  I welcome any reactions.

Howard Friedman


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of John Taylor
Sent: Wed 1/11/2012 3:26 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor

There was a very good panel on the case at AALS Saturday morning (organized by 
Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie 
Griffin) and it included, among other things, an exchange between Rick Garnett 
and Bob Tuttle on the rationale for the ministerial exception.  While both 
acknowledged that they were overstating their differences, the contrast (as I 
understood it) was one between viewing the ministerial exception as completely 
(or almost completely) about the judicial disability to decide religious 
questions (a.k.a. the hands-off principle, the no religious decisions 
principle per Eugene) and viewing it as protecting certain kinds of decisions 
made by religious groups whether religious questions have to be decided or not. 
 (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.)

While I agree that autonomy is a loaded word that the majority did not use 
and I agree that this case doesn't and isn't meant to reach beyond employment 
discrimination claims

RE: Catholic University sued about prayer rooms for Muslims

[Rick Garnett]

Colleagues,

My understanding (just from news reports) is that no Muslim students have 
complained about this matter; instead, John Banzhaf filed the complaint, as a 
kind of follow-up to his complaint about Catholic University's recently 
announced move to single-sex housing for undergraduates.  In a recent 
statement, Pres. John Garvey said:

Banzhaf has created the perception that it is our Muslim students themselves 
who are offended by the symbols of Catholicism on our campus, and that they 
object to the absence of worship space set aside specifically for them, Garvey 
said.

The fact is that no Muslim student at Catholic University has registered a 
complaint with the university about the exercise of their religion on campus. 
And today we learned from an article in The Washington Post that Mr. Banzhaf 
himself has not received any complaints from our Muslim students.

Garvey added, I regret very much that our Muslim students have been used as 
pawns in a manufactured controversy.

http://www.thebostonpilot.com/article.asp?ID=13952

Elsewhere, Garvey said:  Contrary to the impression Mr. Banzhaf would like to 
create, [a] December 2010 [Washington] Post article spoke in overwhelmingly 
positive terms about the experience of Muslim students at Catholic University, 
and explained why they are attracted to us. A considerable part of the 
attraction stems from the fact that our community, because of its own outward 
expressions of Catholic faith, makes them feel comfortable living their faith 
among us.

http://m.christianpost.com/news/muslim-students-not-behind-complaint-against-catholic-university-59796/

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)
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RE: The Two Forms of Ministerial Exception Cases -- a Query

[Rick Garnett]

Dear Marty,

I'm not sure about how you've constructed the run of the mill and not one of 
those sorts of cases categories - because I think it seems to make an awful 
lot depend simply on what the government has chosen to identify as a prohibited 
ground of decision, and it seems to de-emphasizes the nature of the position / 
relationship at issue - but let's put that aside.  As I see it, for purposes of 
thinking about what a commitment to religious freedom entails, before we get to 
what you call the court's basic function [of] determin[ing] whether the 
prohibited consideration motivated the action, there is the question whether 
the action in question is part of the selection and application by a religious 
community of its criteria for religious ministers.  As I read your second 
paragraph, you are open to the possibility that perhaps a ministerial 
exception is warranted - but only perhaps - even in the kinds of cases 
described in that paragraph.  For me, though, it is bedrock - of the The 
Sedition Act of 1798 was inconsistent with an attractive understanding of the 
Freedom of Speech variety - that an exception is required in such cases.  But, 
I won't belabor the claim here, because I know you want to get others' 
reactions.

With respect to your last question, though, about Dale and RFRA.  Both do, as 
you suggest, provide some protections for the decisions of religious 
communities, when they act as employers.  Still, they are not (in my view) 
sufficient.  Two quick thoughts:  First, I am not sure I know what Dale really 
stands for, and I'm not confident that everyone who is arguing Dale is enough 
believes that Dale was rightly decided.  Let's assume, as many of us on this 
list probably believe, that Dale is wrong (because, say, it confused 
discriminatory conduct with speech).  What, then, prevents a state 
government from imposing liability on, say, a (hypothetical) conservative 
Protestant congregation that refuses to hire a woman, because she is a woman, 
as its minister (assuming it can do so without entangling itself in religious 
questions)?  After all, we are thinking and talking not just about the Court's 
doctrines, but about church-state relations and religious freedom more 
generally.  If we were constructing our doctrine, rather than trying to 
untangle and apply it, how would you proceed in this case?

Second - again, sorry to be a broken record --  I do not believe the question 
that is presented in the core ministerial-exception case (and I think H-T is 
closer to the core than, it sounds like, you do) should be answered by asking a 
civil court to decide whether the state has announced a sufficiently 
compelling interest to justify the police-power exercise / expansion that, it 
seems to me, such a case involves.   I have tried to write up this sense / view 
/ intuition of mine in a few places, including this (very) short essay, Are 
Churches (Just) Like the Boy Scouts?:   
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017590

Anyway, thanks for the conversation.  Best, R

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, August 17, 2011 8:54 AM
To: Law  Religion issues for Law Academics
Subject: The Two Forms of Ministerial Exception Cases -- a Query

Hosanna-Tabor is not a run-of-the-mill ministerial exception case; and 
because of that, it raises a question that I was hoping others on the list 
could address.

The much more common type of ME case, with which we're all familiar, involves a 
dispute about whether the church or organization in question violated a 
statutory antidiscrimination norm.  For example, (i) the church purports to 
comply with the prohibition against discrimination on the basis of sex or 
disability; (ii) the church claims that its employment decision was not based 
on the proscribed consideration but was instead based on permissible, often 
religiously-evaluated, considerations; and (iii) the plaintiff asserts that no, 
in fact the asserted neutral reasons are pretextual, and that the church 
actually acted on the basis of the prohibited consideration, such as sex or 
disability.  In such cases, the court's basic function is to determine whether 
the prohibited consideration motivated the action -- a question that might (or 
might not) entangle the court in evaluations of religious doctrine or 
assessment of religious cosniderations.

Such cases can raise difficult questions:  Perhaps they call for some form of 
ministerial exception; perhaps not.  At the very least, some 

RE: Hosanna-Tabor and the Ministerial Exception

[Rick Garnett]

Dear colleagues,

For what it's worth (disclosure:  I helped on an amicus brief, for the 
church-school, in the H-T case), and with respect to Marci's statement that 
those of us who contend that church autonomy is a crucial dimension of 
religious freedom through law are claiming immunity from the law [for 
religious communities] because they are religious.  As I see it, the claim is 
one about the limits of secular, political authority, and not only about 
carve-outs (the shapes and existence of which are determined by 
interest-balancing) from otherwise applicable police powers.

As I hear the debate, it seems to me that those of us who think church 
autonomy is part of religious freedom are saying two complementary but 
distinct things (I'm putting aside questions regarding what we say about lines 
of cases, particular Clauses, etc.):  First, in some cases, there are good 
reasons - having to do with institutional competence, the no-entanglement rule, 
interest-balancing, etc. -- to limit the role of the secular political 
authority in resolving and regulating disputes between ministers and 
religious communities (acting as employers).  Who counts as a minister?  
Which religious communities are covered?  What are the best procedures to 
employ in order to operationalize the good reasons mentioned above?  These 
and others are questions that, as I think Paul and Marci have both said, 
involve balancing, trade-offs, predictions, etc.

But, at least for me, there is another thing that is being said, and should be 
said:  It's not all or only about balancing.  In my view, the 
ministerial-exception debate is a reminder that, at some point, the state's 
interests, and its power, should run out.  This is not a claim about 
immunity, or special-purpose carve-outs from the application of otherwise 
applicable public authority; it is a claim that there are some things (not that 
many, I am inclined to think, but some) the state lacks the power to regulate.  
So, the reason why a court could not tell a Roman Catholic bishop that he had 
to confer the sacrament of Holy Orders on a person whom  that Bishop did not 
think was suitable is not because the Church's religious-freedom interests 
somehow outweigh the interests of the person demanding the sacrament and / or 
the interests of the state in vindicating either that person's interests or its 
own (whatever they might be), thereby warranting, all things considered, an 
exemption.  It is, instead, that a government constitutionally committed to 
religious freedom is / should be one that lacks, and does not claim, the 
authority to supervise the Bishop's decision in this matter.

Again, I am inclined to think that most of the time, when we talk about 
religious freedom, we are talking about, and it makes sense to talk about, the 
costs and benefits of exemptions from otherwise justifiable police-power 
regulations.  But I also think it makes sense - even if we rarely want or need 
to invoke - the limits-of-secular-power dimension of the religious-freedom 
conversation.

Best,

Rick



Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Tuesday, August 16, 2011 11:47 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Hosanna-Tabor and the Ministerial Exception

Paul--  I don't disagree with the substance of what you say.  Absolute liberty, 
or autonomy, is not the US Constitution's role (except when we are talking 
about the right to believe).  There is always the possibility that the 
government can justify burdens on liberty.

What church autonomy means for those who advocate for it, as indicated in the 
LDS/RCC bishops's HT brief, is immunity from the law, because they are 
religious.  Their interpretation is much closer to the licentiousness 
interpretation of liberty firmly rejected by the framing and founding 
generations.  The fact they are using it in sexual misconduct cases itself 
should be revealing.  (Look at the amicus brief filed by the LDS in a footnote 
in my amicus brief (there is a web address).  That case involved a woman 
alleging she was sexually assaulted by a cantor.  She went to her rabbi, who 
she says then sexually propositioned her.  The LDS filed an amicus brief, 
joined by RCC Bishops, arguing for autonomy from the law in that case.)

If they were arguing for a measure of autonomy in the courts, I would not 
feel so compelled to focus a light on its usage.  Ordered liberty captures 
the notion of measured liberty or freedom far better than autonomy.

Just a footnote on abortion.  

RE: Hosanna-Tabor and the Ministerial Exception

[Rick Garnett]

Dear Alan,

I don't think I was getting to the level of distinct rules; I was just trying 
to separate out (or, at least distinguish) two ways of thinking about the 
problem.  My gut-level sense is that, in practice, the 
institutional-competence / no-entanglement / interest-balancing / is an 
exemption warranted, all things considered? approach will usually yield (what 
I would regard as) the right answer in those (rare) circumstances when we are 
dealing with the limits (not the advisability of exercising) the state's police 
powers.  What do you think?

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, August 16, 2011 1:39 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the Ministerial Exception

Just to make sure that I am understanding Rick's argument correctly. Rick, are 
you suggesting that there are two constitutional rules regarding church 
autonomy. One rule calls for the evaluation of institutional competence, 
no-entanglement, and general interest balancing issues as to which some form of 
balancing is necessary and appropriate. A second rule involves a limited class 
of circumstances as to which the state simply lacks power to regulate the 
decision at issue. And at least part of what distinguishes rule 1 from rule 2 
is that the line drawn for rule 2 is not determined  by evaluating the 
institutional competence, no-entanglement and general interest balancing issues 
that determine the content of rule 1.

(Actually, I suppose there would be three rules. Rule 3 would apply the holding 
of Employment Division v. Smith to religious institutions in those 
circumstances in which the autonomy of religious institutions receives no 
protection against neutral laws of general applicability.)

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Tuesday, August 16, 2011 9:57 AM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the Ministerial Exception

Dear colleagues,

For what it's worth (disclosure:  I helped on an amicus brief, for the 
church-school, in the H-T case), and with respect to Marci's statement that 
those of us who contend that church autonomy is a crucial dimension of 
religious freedom through law are claiming immunity from the law [for 
religious communities] because they are religious.  As I see it, the claim is 
one about the limits of secular, political authority, and not only about 
carve-outs (the shapes and existence of which are determined by 
interest-balancing) from otherwise applicable police powers.

As I hear the debate, it seems to me that those of us who think church 
autonomy is part of religious freedom are saying two complementary but 
distinct things (I'm putting aside questions regarding what we say about lines 
of cases, particular Clauses, etc.):  First, in some cases, there are good 
reasons - having to do with institutional competence, the no-entanglement rule, 
interest-balancing, etc. -- to limit the role of the secular political 
authority in resolving and regulating disputes between ministers and 
religious communities (acting as employers).  Who counts as a minister?  
Which religious communities are covered?  What are the best procedures to 
employ in order to operationalize the good reasons mentioned above?  These 
and others are questions that, as I think Paul and Marci have both said, 
involve balancing, trade-offs, predictions, etc.

But, at least for me, there is another thing that is being said, and should be 
said:  It's not all or only about balancing.  In my view, the 
ministerial-exception debate is a reminder that, at some point, the state's 
interests, and its power, should run out.  This is not a claim about 
immunity, or special-purpose carve-outs from the application of otherwise 
applicable public authority; it is a claim that there are some things (not that 
many, I am inclined to think, but some) the state lacks the power to regulate.  
So, the reason why a court could not tell a Roman Catholic bishop that he had 
to confer the sacrament of Holy Orders on a person whom  that Bishop did not 
think was suitable is not because the Church's religious-freedom interests 
somehow outweigh the interests of the person demanding the sacrament and / or 
the interests of the state in vindicating either that person's interests or its 
own (whatever they might be), thereby warranting, all things considered, an 
exemption.  It is, instead

RE: Hosanna-Tabor and the Ministerial Exception

[Rick Garnett]

Dear Marty,

My aim was a pretty modest one:  Just to flag the possibility that the 
ministerial-exception debate involves, at some ponit, thinking about the limits 
on government power, and not just the costs and benefits of government action.  
As for the question, where does the H-T case itself fit . . . I don't agree 
with you that this case is a far cry from what I take to be the 
case-at-the-core, but I suspect that is because you and I disagree about the 
extent to which Ms. Perich's position is a ministerial one.  (And, I suspect we 
won't resolve that disagreement here!)

I wonder, is it so clear that the state lacks any interest in internal 
religious matters?  I'm not sure.  I guess -- sorry for being a broken record 
-- I'd rather say that it lacks power over such matters.

Hope you are well -- R


Richard W. Garnett
Professor of Law  Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, IN  46556-0780

574-631-6981 (office)
574-631-4197 (fax)

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Marty Lederman [lederman.ma...@gmail.com]
Sent: Tuesday, August 16, 2011 5:28 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hosanna-Tabor and the Ministerial Exception

Rick:  I'm not exactly sure whether you mean to suggest that Hosanna-Tabor 
itself is an example of your second sort of case, i.e., as involving something 
the state lacks the power to regulate.

I think we would all agree with you that, at least without more, the state 
lacks the power to tell a Roman Catholic bishop that he had to confer the 
sacrament of Holy Orders on a person whom  that Bishop did not think was 
suitable -- not only because that decision would almost certainly involve a 
question of religious doctrine or suitability about which the state has no 
competence to opine, but also, and perhaps more fundamentally, because the 
state simply has no real interest in regulating such decisions.

And, as it turns out, we really don't have to worry about such cases:  Because 
states have no interest in such internal religious matters as conferral of 
sacraments, states in practice have not even attempted (so far as I know) to 
regulate such conferrals.  (I would note, however, for what it's worth, that 
Part I of the Employment Lawyers amicus brief -- 
http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf
 -- appears to provide a pretty compelling account of how U.S. courts regularly 
adjudicated actual ministers' suits against churches quite regularly throughout 
most of our early history -- in contract claims and the like -- and sometimes 
ordered reinstatement without any suggestion of constitutional barriers.)

But that's a far cry from this case, right?  Here, Perich threathened to file 
an ADA suit when she suspected that the school would not allow her to teach 
because of her disability.  The school thereafter concededly fired her from her 
teaching job because she threatened to file such an ADA claim -- what would be 
a clear violation of the ADA anti-retailiation provision if there were no 
constitutional barrier.

Whatever else may be true about the case and the propriety of applying the 
ministerial exception, surely the state does not lack an interest, or lack the 
power, to prohibit firing from a teaching position on the basis of disability, 
or on the basis of retaliation for threathening to enforce that 
antidiscrimination norm -- at the very least (as here) where the teacher's 
duties included the teaching of secular subjects in a school offering services 
for a fee to the public as a whole.

That is to say, this is a far cry (isn't it?) from the case you posit, in which 
the state would (as no state does) try to regulate the question of who is 
worthy to conferral of sacrements.  The state's legitimate interest in that 
case would be very difficult to identify and defend.  But here there is no such 
problem.

On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear colleagues,

For what it’s worth (disclosure:  I helped on an amicus brief, for the 
church-school, in the H-T case), and with respect to Marci’s statement that 
those of us who contend that “church autonomy” is a crucial dimension of 
religious freedom through law are claiming “immunity from the law [for 
religious communities] because they are religious.”  As I see it, the claim is 
one about the limits of secular, political authority, and not only about 
carve-outs (the shapes and existence of which are determined by 
interest-balancing) from otherwise applicable police powers.

As I “hear” the debate, it seems to me that those of us who think “church 
autonomy” is part of religious freedom are saying two complementary but 
distinct things (I’m putting aside questions regarding what we say about lines 
of cases, particular Clauses, etc

RE: TRO against Oklahoma no use of Sharia Law

[Rick Garnett]

Dear colleagues,

I agree with Marci that a healthy, positive sense of the distinction between 
religious authority and political / civil authority is important for religious 
freedom.  (This is one reason, I think, measures like the recent attempt in 
Connecticut to re-organize Catholic parishes on a trustee-ship model are 
troubling.)   And, I think Eugene is right to point out that any willingness on 
the political authority's part to enforce religious arbitrations or resolve 
religious disputes is (and should be) cabined by the no religious decisions 
and no excessive entanglement rules.

Still, it does seem to me that political communities might reasonably conclude 
that an important dimension of human freedom - one that is not outside the 
appropriate zone of a secular government's concern --  is the ability to enter 
into a wide variety of actually-binding promises and agreements.  I am inclined 
to think that the fact these agreements and promises (freely and knowingly) 
incorporate religious commitments, norms, laws, etc., should not necessarily 
(thought it certainly might, in some cases) make them inappropriate for 
enforcement by non-religious authorities.

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/
Law, Religion, and Ethicshttp://lawreligionethics.net/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 11, 2010 3:32 PM
To: Law  Religion issues for Law Academics
Subject: Re: TRO against Oklahoma no use of Sharia Law

   I would think that, under Lukumi Babalu and McDaniel, the 
government may not authorize the enforcement of secular arbitrations but refuse 
to enforce religious arbitrations.  Whatever the scope of permitted 
discrimination against religion might be under Locke v. Davey, I don't see how 
Locke would extend to a situation such as this one.

   More broadly, the Court has interpreted the First Amendment as 
barring any religious decisions by courts.  If some dispute over property - 
perhaps a substantial amount of property, and perhaps in the context of a 
schism in which excommunication and shunning might not be much of a remedy - or 
contract rights requires a determination of a religious question (e.g., whether 
a supplier's food products are kosher, whether the terms of a religious trust 
have been fulfilled, and so on), the civil courts will refuse to hear the 
dispute.

I think that's sensible, for the reasons the Court has set out.  But if we are 
to deny religious people a means for resolving their disputes through the 
normal machinery (and the normal enforcement mechanisms) of civil law, 
machinery that is one of the essential functions of a government, it seems to 
me that we should offer them some alternative mechanism.  The obvious solution, 
I think, is the same solution that people get when they want some specialized 
or supposedly more efficient tribunal to resolve their secular contracts, but 
with the enforcement power of the state behind the contracts: binding 
arbitration.

Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, November 11, 2010 12:07 PM
To: religionlaw@lists.ucla.edu
Subject: Re: TRO against Oklahoma no use of Sharia Law

I guess my question is not so much how is it possible, but (1) why would we 
want civil courts to enforce religious agreements? and (2) why would the civil 
courts be willing to use civil enforcement measures to enforce religious 
agreements?  If a person makes an agreement based on religious principle, why 
shouldn't they be limited to religious fora and their means of enforcement, 
whether it is
shunning, or excommunication, or having to teach Sunday School.  There seems to 
be an implicit agreement in this discussion
that enforcement of religious agreements in civil courts is a positive policy 
decision.  I think it probably is not.  A dual system
is the better approach for Establishment purposes and for the identity of 
religious individuals.
So, in the Catholic Church, there are civil trials for civil liability for 
causing child sex abuse by clergy and there are ecclesiatical trials for the 
Church's version of justice.

Marci
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RE: Ministerial Exception Cert Petition

[Rick Garnett]

Thanks for this, Tom.  Forgive me, all, if there has already been a big 
discussion of this case, which I missed, responding to Tom's post.  It *does* 
strike me, for what it's worth, that it is time for the Court to weigh in on 
the many interesting (and difficult) questions that the ministerial exception 
raises, e.g., how do we identify the positions to which the exception applies, 
does the exception apply without regard to the reasons (if any) for the 
challenged conduct, and what is the constitutional basis (Free Exercise?  
Church Autonomy? Establishment?  Something else?) for the exception?

Best, Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/
Law, Religion, and Ethicshttp://lawreligionethics.net/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Wednesday, November 03, 2010 1:51 PM
To: Religionlaw
Subject: Ministerial Exception Cert Petition

The Becket Fund and Doug Laycock have filed a cert. petition in Hosanna-Tabor 
Evangelical Lutheran Church and School v. EEOC, raising the question [w]hether 
the ministerial exception applies to a teacher at a religious elementary school 
who teaches the full secular curriculum, but also teaches daily religion 
classes, is a commissioned minister, and regularly leads students in prayer and 
worship.  See the links at Howard Friedman's Religion Clause blog, 
http://religionclause.blogspot.com/2010/10/cert-petition-filed-in-ministerial.html.

The petition makes the case that ignoring the teacher's clergy-type duties on 
the ground that her primary duties were to teach secular classes is 
unconstitutional, and that the courts of appeals are divided on how to 
determine whether the ministerial exception applies to a given employee.  
Eugene commended the petition's quality, 
http://volokh.com/2010/10/28/antidiscrimination-laws-and-religious-organizations,
 but I don't know what he thinks about the merits.  Rick Garnett called it one 
of the most important religious freedom cases in years.  
http://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/one-of-the-most-important-religious-freedom-cases-in-years.html
  And Marci has referred to the case among others in arguing that the Court 
ought to take a case to define the ministerial exception.  
http://writ.news.findlaw.com/hamilton/20100722.html.



Seems like a case worth discussing.  Thoughts from anyone on the list, 
including any of these folks?

-
Thomas C. Berg
St. Ives Professor of Law, Associate Dean for Academic Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


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

[Rick Garnett]

Dear Paul,

What do you say to Will's question about requiring would-be doctors to perform 
(elective) abortions?  Doesn't your note, below, leave open hard questions 
about what, in fact, is necessarily entailed in a particular job?  And, so long 
as one's scruples are disclosed, why, exactly, should the separation you 
allude to be required, in the counseling context?

Best, Rick

Sent from my iPad

On Jul 28, 2010, at 5:55 PM, Paul Finkelman 
paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote:

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)

mailto:paul.finkel...@albanylaw.edupaul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu

http://www.paulfinkelman.comwww.paulfinkelman.comhttp://www.paulfinkelman.com

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

From: Will Esser willes...@yahoo.commailto: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.edumailto: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.commailto:paul.finkel...@yahoo.com wrote:

From: Paul Finkelman paul.finkel...@yahoo.commailto: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.edumailto:religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 1:01 AM

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 

RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

[Rick Garnett]

Friends -- with respect to Marci's suggestion that religious entities be 
required to inform people in ministerial positions about the fact that such 
entities have a constitutional right to hire-and-fire that is not subject to 
many employment-law constraints . . .   it seems to me that people often suffer 
what I think Marci and I would agree are harms as a result of others' 
exercise of constitutional rights (in particular, the freedom of speech).  That 
is, the Constitution does have the effect (and, it seems to me, *was* intended 
to have the effect) of insulating *some* harms (e.g., the pain caused by 
offensive speech) caused from correction or prevention by the government.

Do we think, though, that, as a general matter, rights holders should have to 
inform those with whom they are in relationships and who might be harmed by the 
exercise of the rights holders' rights that the rights might, in fact, be 
exercised?  Should a reporter, for example, have to warn anyone whom she 
interviews about the harm-causing-potential of the rule in New York Times v. 
Sullivan?

I agree, for what it's worth, that it makes good sense for attorneys 
representing churches and religious institutions to advise their clients to 
inform those in ministerial positions (that is, in any position that the church 
regards as ministerial) about their (the institutions') religious liberty.  But 
I'm wondering if Marci's proposed warning requirement applies only to religious 
employers (and if so, why?  Because they are employers?  Because they are 
religious?) or to all whose rights-exercise might cause harm?

 Best,

r


Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/
Law, Religion, and Ethicshttp://lawreligionethics.net/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Friday, July 16, 2010 3:44 PM
To: religionlaw@lists.ucla.edu
Subject: Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

Bob makes very good points but I'm not persuaded.  Religious employers can be 
required to report child abuse by their employees, so why can't they be 
required to provide legal boilerplate to incoming employees?

If Bob is right, we have serious problems in my view. The public policy problem 
is that no religious organization is going to make such a warning without being 
prodded by the law (or insurance cos., but they do not prod without legal --aka 
financial -- consequences).  So we are stuck with obvious harm to employees of 
religious organizations but no solution.  I am a firm believer that the 
Constitution was not intended and should not make it impossible for government 
to prevent or remedy substantial harm.

So that leaves the government -- charged with protecting citizens from harm -- 
on Bob's theory hamstrung from requiring religious employers to issue a warning 
regarding the state of the law.  So how does the government protect its 
citizens?  I guess there are several public education options:

(1) public service announcement: if you are considering or are working for a 
religious institution in a religious capacity, you need to understand that it 
is immune under judicial doctrine from anti-discrimination laws, including 
sexual harassment and gender discrimination

(2) on every W-2, which the religious employer must provide to every full-time 
employee, right?, there is boilerplate saying the same as above.

Here is another option-- how about no religious organization can be eligible 
for faith-based funding unless it provides to its employees a statement that it 
is immune from the anti-discrimination laws?

Marci




In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, 
rtut...@law.gwu.edu writes:
Marci's idea of a warning for ministerial employees would certainly be a 
prudent step for religious employers to take on their own initiative, but I 
don't think the state could impose such a requirement as a condition of the 
religious employer invoking the exception in litigation -- the exception seems 
to me jurisdictional, not something derived from a religious organization's 
claim of autonomy (about which there is good reason to be dubious) but rather 
from courts' constitutional inability to determine what is adequate 
qualification for or performance of the ministerial role.

Bob Tuttle

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RE: Feature films on church and state

[Rick Garnett]

Dear all,
Laurence Olivier starred in a 1961 film version of Graham Greene's
Power and the Glory. And, One Man's Hero
(1999), starring Tom Berenger, is about the San Patricios (Irish-American
soldiers who deserted during the Mexican-American war). 
Rick 
At 10:56 AM 8/11/2005, Roman P. Storzer wrote:

There's Becket
(1964).


From:
[EMAIL PROTECTED]
[
mailto:[EMAIL PROTECTED]] On Behalf Of
Douglas Laycock
Sent: Thursday, August 11, 2005 11:49 AM
To: Law  Religion issues for Law Academics
Subject: FW: Feature films on church and state

Anyone have a good idea on this
query from my librarian: 

Doug, are you aware of any movies dealing with separation of church and
state?  I
can't think of anything but Inherit the Wind, The Courageous
Mr. Penn, Hitchcock's I Confess (sanctity of the
confessional), and A Man for all Seasons. 

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
 512-232-1341 (phone)
 512-471-6988 (fax)
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Re: Religious Perspectives on Public School Curricula

[Rick Garnett]

Dear all,
I appreciate Toni Massaro's reminder about The Great School Wars and the 
help that Professor Ravitch's book provides in thinking about the recent 
case in Maryland (and many other things).  The book is, as Toni says, 
illuminating for many reasons.  For what it's worth, the Maryland case 
reminds me of a different lesson than the one Toni highlights:  As I'm sure 
Professor Ravitch would agree, the first great school war grew out of 
more than the Catholic clergy's desire to get public funds; that desire 
was, after all, not unrelated to Catholic frustration with the 
often-aggressive pan-Protestant proselytizing that was common in (and, some 
would say, was the reason for) the common schools of the 19th 
Century.  See, e.g., Jorgenson, The State and the Non-Public School; Glenn, 
The Myth of the Common School, etc.  If the complaints of  some 19th 
Century Catholics about the sectarianism of infidelity are instructive, 
so too is the fact that the Common School's boosters convinced themselves 
that, in their efforts to make better, more open-minded democrats and 
Americans out of Catholics, their aims and practices were entirely 
nonsectarian.

Best,
Rick
At 12:52 PM 5/6/2005, you wrote:

The Great School Wars --New York City, 1805-1973, by Diane Ravitch,
remains relevant.
She writes:
The first great school war grew out of the Catholic clergy's desire to
get public funds.
...
By their [Catholic leaders'] description, the religious liberty of
Catholic schoolchildren could be protected only in a school where the
Catholic religion was taught.  A school which attempted to teach all
creeds or no creed at all was repugnant to them.  Devout Catholics did
not want their children exposed to other religions, nor did they want
their children educated in a school which put error and truth on an
equal footing.
...
[Dr. Power] ...called [public schools] deist, sectarian, and
anti-CatholicHe strenuously objected to the reading of the King
James version of the Bible, without note or comment, in the classrooms
of the public schools.
Her account is illuminating for many reasons, including that it shows
the difficulty of  achieving neutrality for Establishment Clause
purposes where sectarianism is defined by some --as it was by leading
Catholics then --as the sectarianism of infidelity.



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Stanford's Warning about Religion

[Rick Garnett]

Dear all,
In the course of looking into something having nothing to do with
law-and-religion, I came across a web page, provided by Stanford
University's Office for Religious Life, entitled A Word of
Warning. Here is a link:

http://religiouslife.stanford.edu/sar/warning.html
Here is the text:
A Word of WarningMaintaining and nurturing your spiritual
life during college and graduate school is one of the best ways to keep
perspective on your studies and to avoid the isolation that is too often
a part of scholarly pursuits. The Deans for Religious Life and
members of SAR are committed to providing opportunities for spiritual
growth, rewarding friendships and intellectual inquiry into matters of
faith in a supportive environment.
Unfortunately, not every religious group has your best interests at
heart. Groups to avoid have some or all of the following characteristics. 

Pressure and Deception: They use high-pressure recruitment
tactics or are not up-front about their motives when they first approach
you. SAR members are required to identify themselves on all News and
Publications and to be clear and forthright about their motives. 
Totalitarian Worldview: They do not encourage critical,
independent thinking. The first goal of higher education is to enable you
to think for yourself. Be aware of groups or leaders who try to control
your life or who claim to possess the truth exclusively. 
Alienation: They want to choose your friends for you. While
all religions have moral guidelines, watch out for groups that encourage
you to sever ties with close friends and family who are not members. They
are manipulative and extremely dangerous. 
Exploitation: They make unrealistic demands regarding your
time and/or money. If participation in a group takes away from your study
time, beware. A group or leader that cares about you understands that
your studies-your future-are your first priority as a Stanford student.
SAR members are strictly forbidden to require dues from student
participants. 

If you feel you are being pursued aggressively or manipulated by a group
or leader, contact any of the Deans for Religious Life or call
723-1762.
* * *
Now, it strikes me as reasonable and appropriate for a University like
Stanford to provide (perhaps) paternalistic guidance to students on all
sorts of matters involving their personal lives, including
involvement with religious groups and activities. (I would hope
that a University's willingness to provide warning[s] to
students about the dangers posed by some religions to critical,
independent thinking would indicate a willingness to warn about
similar dangers posed by, say, political or identity-related
groups). I imagine that reasonable people will disagree about what,
exactly, counts as claim[ing] to possess the truth
exclusively or [dis]courag[ing] critical, independent
thinking, but put that problem aside. I wonder, do any
members of this list have any thoughts or views on how, if at all, the
First Amendment would constrain the issuance by a state-run university of
a warning like Stanford's? Or, approaching the matter
from a broader, religion and liberal democracy perspective,
what would we think about this warning?
Best,
Rick


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Re: American Jewish Congress v. Corp. for National Community Service

[Rick Garnett]

Dear all,
Marty writes, below, that [a]lthough this
[i.e., the reimbursement for secular value argument] might be
a valid theory of the EC, it has thus far been rejected by the SCOTUS,
and would require fairly significant overrulings in order to carry the
day. I wonder, Marty -- do you think such overrulings would
be justified? Are there reasons, other than Lemon and Nyquist  --
and there might well be; I'm just asking -- we should worry more about
government funds paid in reimbursement for administrative costs
associated with teacher-training and supervision than about, say,
government funded computers for use in teaching secular subjects in
parochial schools, or even federal student loans for students
attending Notre Dame and majoring in Theology?
Best,
Rick Garnett
At 01:51 PM 3/16/2005, Marty Lederman wrote:
I
think that Chip and Bob's analysis is pitch-perfect. The most
questionable part about the program -- aside from a serious statutory
issue that AJC apparently dropped because of standing concerns -- has
always been the $400 grants to Notre Dame. For the reasons Chip and
Bob explain, I'm not persuaded by the CTADC's reliance on Regan as
support for those grants. Levitt is the precedent much more
on-point.

Indeed, Judge Randolph's opinion goes much
further than Regan, including as administrative costs
not only the costs of complying with the federal government's paperwork
and technical requirements, but also the costs of the teacher-training
(the education) itself, and of supervision. This
is, in effect, no different than saying that the teachers' salaries for
teaching secular subjects in Nyquist and Lemon were
administrative costs of complying with the grant program and
therefore could be subsidized. The Court expressly rejected such a
reimbursement for secular value argument in those cases, and
that doctrine was reaffirmed by Justice O'Connor's governing opinion in
Mitchell. Thus, as Chip/Bob suggest, the CTADC's decision
significantly echoes the theme one hears quite a bit of these days --
that direct grants can be provided to faith-intensive programs, as long
as the government receives secular value for its money.
Although this might be a valid theory of the EC, it has thus far been
rejected by the SCOTUS, and would require fairly significant overrulings
in order to carry the day.

Interestingly, DOJ did not, in its
briefing or argument, raise the Regan argument. Instead, DOJ
argued that because the $400 is sent to Notre Dame on a per
capita basis, depending on the number of students who choose to
attend Notre Dame, it is, in effect, indirect, or voucher-like,
funding, governed by Zelman. This was Judge Posner's
rationale in FFRF v. McCallum, which DOJ cited extensively.
The D.C. Circuit no doubt concluded that the Posner de facto
voucher rationale -- no matter how compelling it might be -- is
directly foreclosed by O'Connor's governing opinion in
Mitchell. Thus, the court itself latched onto the
Regan rationale, without the briefing that might have demonstrated
why it was a tenuous ground for reversal.

Disclosure: Several years ago, I worked
on the matter for DOJ before the initiation of the lawsuit.
Obviously, nothing I say here contains any confidential information, and
my views do not necessarily reflect DOJ's.


- Original Message - 
From: Lupu
[EMAIL PROTECTED]
To: Law  Religion issues for Law Academics

religionlaw@lists.ucla.edu
Sent: Wednesday, March 16, 2005 1:28 PM
Subject: Re: American Jewish Congress v. Corp. for National Community
Service

Last week, there was a brief discussion
on the list about a decision 
by the DC Circuit (3/8/05, reversing the district court) to uphold 
against constitutional challenge various aspects of the Americorps 
Education Awards Program. Bob Tuttle and I have now posted a

comment on the D.C Circuit opinion at the website for the 
Roundtable on Religion and Social Welfare Policy. The comment 
can be found here:

http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=34

Chip

On 15 Mar 2005 at 17:57, Steven Jamar wrote:
 On Tuesday, March 15, 2005, at 04:44 PM, James Maule
wrote:
 
  What major social reform effectuated through legal change was
NOT a
  political non-starter when it first was proposed?
 
 Never doubt that the work of a small group of thoughtful,
committed
 citizens can change the world. Indeed, it's the only thing that
ever
 has.
 
 Margaret Meade
 
 
  [EMAIL PROTECTED]
3/15/2005 3:12:30 PM 
 
  The idea of cleanly separating religious
  marriage from state-recognized relationship is appealing, but
a
  political non-starter, in my view.
 
  Rob Vischer
 
 -- 
 Prof. Steven D.
Jamar
vox: 
 202-806-8017 Howard University School of
Law

 fax: 202-806-8428 2900 Van Ness Street
NW


mailto:[EMAIL PROTECTED]
Washington, DC 20008 


http://www.law.howard.edu/faculty/pages/jamar
 
 God, give us grace to accept with serenity the things that
cannot be
 changed, courage to change the things which should be changed

Decision in AJC v. Corp. National Community Service

[Rick Garnett]

Dear all,
The DC Court of Appeals has reversed the district court's decision in this 
case, which involves a constitutional challenge to, among other things, the 
participation in Americorps of volunteers with Notre Dame's Alliance for 
Catholic Education program.  (Disclosure:  I consulted with lawyers 
defending the constitutionality of ACE volunteers' participation).

Here is a link to the 
decision: 
http://pacer.cadc.uscourts.gov/docs/common/opinions/200503/04-5317a.pdf

Here is a link to an excellent and thorough discussion of the case, and the 
district-court decision, by Chip Lupu and Bob Tuttle:

http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=29
Best wishes,
Rick Garnett
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Free Exercise Right to Shelter the Homeless

[Rick Garnett]

Dear all,
FYI:
On October 29, Judge McKenna of the S.D.N.Y. ruled in a case brought by the 
Fifth Avenue Presbyterian Church, seeking a permanent injunction 
preventing the City of New York . . . from dispersing homeless persons 
sleeping, at the Church's invitation, in the landings at the tops of the 
staircases leading up into the . . . entrances of the Church . . . and on 
the Church's property . . . .  The Church claimed that the City's actions 
in removing homeless persons from the Church's property . . . violated [the 
Church's] rights under the Free Exercise Clause[.]  Apparently, the City 
conceded that its actions substantially burdened the Church's sincerely 
held religious beliefs, but noted that the Church could avoid the burden 
by expanding its indoor shelter.  The court was not moved by this 
argument.  The City next argued that strict scrutiny of its conduct was 
not required, because the law in question is neutral and of general 
applicability.  The court stated, though, that it is not an individual 
City law that must be neutral and generally applicable [to avoid strict 
scrutiny], but the City's actions in applying City law that must be neutral 
and generally applicable.  And, the court concluded, because the City's 
enforcement actions were overbroad, they do not constitute a neutral 
government action.  Nor were they generally applicable, because they 
result in disparate treatment of religious activity by failing to prohibit 
nonreligious conduct that endangers [legitimate] interests in a similar or 
greater degree.  Finally, the City's actions were found to flunk strict 
scrutiny.

The opinion is available at 2004 U.S. Dist. LEXIS 22185.
best,
Rick Garnett
Notre Dame Law School
At 10:57 AM 11/5/2004, you wrote:
Anonymous students left pamphlets calling on students to accept Jesus on the
desks of Jewish public high school students and no other students. I have
been asked whether a school could ban religiously targeted distribution of
any pamphlet. Any responses?
Marc Stern

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The Death Penalty and Religious Conversion (from Nate Oman)

[Rick Garnett]

Dear all, 
Nate Oman asked me to forward this to the list:

Eugene, 
The issue in Payton is actually (not
surprisingly) narrower than portrayed by USA Today. It has to do
with the issue of whether or not Paton was entitled to an instruction
that under the rather inelegantly worded California death penalty statute
the jury could consider post-crime rehabilitation in mitigation of his
sentence. The California Supreme Court has already ruled that as a
matter of state law the jury can consider such evidence. At
Payton's trial, however, the court didn't give the jury any instructions
on this point and simply read the language in the statute. In
addition, the Court allowed the prosecution to argue to the jury that the
statute did NOT allow them to consider post-crime rehabilitation.
Payton argues that this violated his rights under the Eighth
Amendment.
There is no challenge to the religious nature of his rehabilitation
before the Court. Presumably, however, a jury could not mitigate
his sentence merely because of his religious conversion per se, but they
could take the religious conversion as evidence of real and sincere
change. Indeed, I think that a jury could even draw the inference
that deeply religious conversion was more probative of deep
rehabilitation than would be a purely atheistic change of heart. I
do not, however, believe that the jury could permissibly take the
position that an atheist was incapable of similar rehabilitation.
In other words, I think that jury ought to be able to consider religion
as evidence of some other factor, but should not be able to use religion
itself as the factor.
Nate Oman 
___

Nathan Oman 
SIDLEY AUSTIN BROWN  WOOD LLP 
1501 K Street, NW 
Washington, DC 20005 
(202) 736-8680 


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Re: Florida Voucher Decision

[Rick Garnett]

Dear all,
Thanks very much to Michael for forwarding the Florida court's decision.  I 
am not surprised by the result, but I am surprised by (what I regard as) 
the court's failure meaningfully to confront the original social meaning 
and purpose of Florida's no-aid provision and other similar provisions.

For example:  In footnote 9, the Florida court states that [w]hether the 
Blaine-era amendments are based on religious bigotry is a disputed and 
controversial issue among historians and legal scholars and that [some] 
commentators argue . . .  that anti-Catholic bigotry did not play a 
significant role in the development of Blaine-era no-aid provisions in 
state constitutions.  (True enough).  For the latter proposition, though, 
the court cites only (1) a detailed article on the Indiana no-aid 
provision, which observed that, in 1850, Indiana had very few Catholics and 
concluded that the Indiana provision was neither nativist nor 
anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that 
the provision at issue in that case had not been connected by Davey to the 
Blaine Amendment.  But does Indiana's situation in 1850 -- even assuming 
that the article's author is correct -- really support the statement that 
Florida's 1868 (and 1885) no-aid provision was not tainted by post-war 
nativism?   What about the Chief Justice's observations about what he 
regarded as the lack of a connection between one particular Washington 
provision and the Blaine Amendment movement generally?  (Now, I have not 
done the historical research on Florida's provision specifically; perhaps 
it really is the case that Florida's no-aid provision was anomalously free 
of nativist support.  But the Florida court's citations do not, in my view, 
make the case).

What's more -- Putting aside the fact that concern about the perceived 
anti-democratic effects and aims of 19th Century Catholicism need not be 
regarded as bigotry (even if, as I believe, this concern was, for the 
most part, misplaced); and putting aside also the question whether, under 
current doctrine, it matters today that the Florida no-aid provision 
reflected (among other things), a widespread desire to constrain the 
influence of Catholicism (in the same footnote, the court suggests that the 
1968 retention of the provision removes any possible taint); I am quite 
surprised by the court's casual confidence that anti-Catholicism did not 
play a role in the adoption of the no-aid provision.  There is, in my view, 
an innocents abroad quality to the discussion.  On page 15, for example, 
the court quotes Justice Brennan's (questionable) claim in Lemon that the 
no-aid provisions and the common-school movement reflected a desire for 
secular public schools, rather than private sectarian schools.  And, in 
footnote 7, the court notes President Grant's 1875 call for a no-aid 
amendment to the United States Constitution, without mentioning at all the 
overtly anti-Catholic (which does not, again, mean bigoted) nature of 
Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American 
Freedom (2003)).

I know that Marc Stern, Steve Green, and others have written powerfully and 
well that the Blaine Amendments are more complicated than some of the 
amendments' critics (including, perhaps, me) have appreciated.  Still . . 
. I'd welcome others' reactions.

Best,
Rick Garnett
Notre Dame Law School
At 03:11 PM 11/12/2004, you wrote:
The First District Court of Appeal today again held Florida's voucher
system violated the no aid provision of Florida's constitution.  The 114
page opinion with dissents, is available on line at:
http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc)
Michael R. Masinter Visiting Professor of Law
On Leave From   University of Miami Law School
Nova Southeastern University(305) 284-3870 (voice)
Shepard Broad Law Center(305) 284-6619 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

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American Jewish Congress v. Americorps and Notre Dame

[Rick Garnett]

Dear all,
The district-court ruling in the AJC's Establishment Clause challenge to 
the Americorps Education Awards Program -- and, in particular, to the 
participation in the Program of teachers involved in Notre Dame's Alliance 
for Catholic Education -- is available at the AJC's website.  The court 
granted AJC's motion for summary judgment.

http://www.ajcongress.org/clsa/SJopinion.pdf
http://www.ajcongress.org/
Here's a link to the Alliance for Catholic Education, by the way:
http://ace.nd.edu/
I'll defer to my colleague Marc Stern regarding the details of AJC's claims 
and objections.  My own view -- with the caveat that I have consulted 
occasionally with Notre Dame's lawyers during the course of the litigation 
-- is that Judge Kessler's ruling is vulnerable on appeal.  I'd welcome 
others' reactions, though.

Best wishes,
Rick Garnett
Richard W. Garnett
Notre Dame Law School
Notre Dame, IN  46556
(574) 631-6981
[EMAIL PROTECTED]
http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
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Justice Thomas in Newdow

[Rick Garnett]

Dear all,
I apologize in advance, if I missed the list's discussion of Justice 
Thomas's views regarding the incorporation of the Establishment 
Clause.  For what it's worth, I've been surprised by the vigor with which 
several prominent scholars have disapproved these views.  Jack Balkin 
remarked, for example (www.balkin.blogspot.com), [n]ow we know what it 
would be like to have Judge Roy Moore on the Supreme Court.  Brian Leiter 
concludes that Justice Thomas has solidif[ied[ his status on the lunatic 
fringe (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html).  And 
Doug Laycock states that Thomas's is a pretty astonishing view. . . . He 
acts as though the Civil War didn't happen, or it didn't matter 
(http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).

It strikes me, though, that Thomas's observations, in Part II-A of his 
opinion, are not particularly astonishing, and certainly do nothing to put 
him on the lunatic fringe.  Does he say anything, in that Part of the 
opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and 
many others have not also said, namely, that the point of the Establishment 
Clause was to protect the States' then-existing establishments and 
perhaps also, more generally, to leave questions of church-state relations 
to the States?  And, with all due respect to Professor Laycock, I'm not 
sure it is fair to conclude that, because Justice Thomas agrees with those 
who believe that the Establishment Clause is particularly, and perhaps 
uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., 
Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes 
that the post-Civil War Amendments worked in the constitutional law of 
individual rights.  (Recall, for example, his passionate concurrence in 
Zelman).

Now, I'm inclined to think that, merits aside, the matter is water under 
the bridge, and that Justice Thomas's views on this question -- like his 
views on the scope of the Commerce Clause -- are not likely to become 
governing constitutional law.  As Michael Perry likes to put it, the 
incorporation of the Establishment Clause has become bedrock.  Still, is 
there a reason why we should not concede that he is -- or, at least, MAY be 
-- correct?

Best,
Rick Garnett




At 04:26 AM 6/11/2004 -0500, you wrote:
Eugene, I agree that very global quid pro quo theories -- like broad
Establishment Clause, broad Free Exercise Clause -- do not spread their
benefits to all religions equally.  (For example, I think that broad
establishment clause, broad free exercise tends to protect or benefit
minority or outsider religions, although I'd qualify that statement in some
important ways.  I'm thinking about this now because I'm writing a piece
about minority religions.)
But more specific quid pro quo arguments, it seems to me, can rest on real
connections.  For example: Because public schools cannot include religious
teaching in their curriculum, there should be special concern to protect
religious private schools and families' ability to use them if they
conscientiously wish to have religoius instruction in their children's
education.  That connection is still not perfect -- not all families who
want religious instruction in education will belong to a denomination that
operates religious schools -- but the connection is real because there are
indeed many families who make such a choice between public education and
private religious schools.
As for more global quid pro quo notions:  although of course there are many,
many religious views, nevertheless there is a general category called
religion that is singled out for distinctive treatment in the Constitution
and therefore may require distinctive treatment by government actors.  Even
if a general quid pro quo approach doesn't benefit all faiths equally, it
seems to me that it can have the advantage of setting forth an approach that
doesn't treat religious activity just the same as every other activity, but
is principled in the ways it departs from that sameness treatment.  For
example, the Lee v. Weisman passage -- preservation and transmission of
religious beliefs and worship is a responsibility and a choice committed to
the private sphere, which itself is promised freedom to pursue that mission
-- gives a principled (though certainly disputable) reason for treating
religious activities distinctively in various legal situations.  When
someone asks, for example, Why should there be exemptions from law just for
religious conduct?, a possible answer is, It's part of this overall
approach to religion that is sensible and justifiable, for [X] reasons.  I
think that the fact that one can point to other places where religion is
treated differently helps make the overall approach more sensible and
justifiable (though, of course, still open to dispute).
Tom Berg
  _
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Wed 6/9/2004 11:29 PM
To: Law  Religion issues for Law

Re: Locke v. Davey -- Blaine Amendments

[Rick Garnett]

Dear all,
I appreciate Marty's kind words, and accept his entirely appropriate
critique of my post yesterday regarding Davey. Marty is right to
remind us -- that is, to remind me -- that there are
two pertinent Washington Constitutional
provisions, both of which were included in the original Washington
Constitution. 
I'm on the road today, so I apologize for my inability
to clarify my earlier remarks, or document my earlier claims, to the
extent I would like.
I do want to emphasize again, though, that (like Marty) I did not expect
that the connections between 19th Century anti-Catholicism and provisions
like those at issue in Davey would be outcome-determinative. As
many on this list have shown (I'm thinking, in particular, of Chip Lupu,
Steve Smith, and Bob Tuttle), no-aid separationism can be respectably and
powerfully defended today without relying on anti-Catholicism.
I should also say -- and I regret that I have not always been clear on
this point in my own work -- that I regard anti-Catholicism
as something distinguishable from bigotry. (I try to
flesh out this argument in a short essay, The Theology of the
Blaine Amendments,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=455220) There is
and has long been such a thing as anti-Catholic bigotry, but
I (now) believe it is more important to think about the arguments of
those who feared and disagreed with, and not simply disliked, Roman
Catholicism.
As Marty points out, in the Becket Fund brief -- to which I contributed,
and which was endorsed by a number of distinguished historians, including
John Witte, Charles Glenn, George Marsden, etc. -- discussed the Blaine
Amendments, their progeny, and their origins in a general way. The
brief also addressed the Washington Constitution, and Article IX, Sec. 4
specifically. It did not speak directly to Section 11, though it
did respond at some length to the suggestion that motives other than
anti-Catholicism (again, I would not want to say that anti-Catholicism
was always mere animus) animated Washington's anti-aid
provisions.
In my view -- and I realize that, for now, this is an assertion, not a
demonstration -- the original meaning and purpose of Sec. 11,
unlike, perhaps, its social meaning today, cannot be divorced
from the thoroughgoing anti-Catholicism that shaped and permeated 19th
Century American thinking about religious liberty, citizenship, and
education. In my judgment, the evidence establishes the fact that
legislative provisions and public arguments speaking to the funding of
religious (or sectarian) schools and education are in large
measure the result of concerns about the loyalty of Catholics and the
compatibility of Catholicism with American nationalism and liberal --
and, at the time, Protestant -- citizenship. 
To be sure, the text from Section 11, cited by Marty --
No public money or property shall be
appropriated for or applied to any religious worship, exercise or
instruction, or the support of any religious establishment --
certainly does not sound anti-Catholic, and it probably does
not today have an anti-Catholic social meaning. Still,
the provision would not exist, in my judgment,
but for the threats to American values that -- many believed -- were
posed by Catholicism. This connection is established in the
recent work of Hamburger, McGreevy, and many others. And, I believe
that the Court was too quick to dismiss it. 
All that said, thanks to Marty for calling me on this
point.
best,
Rick Garnett
 
At 01:06 AM 2/26/2004 -0500, you wrote:
It's
great to see Professor Garnett contributing to the list on Davey;
he has addressed these issues with uncommon insight, rigor and nuance,
and our discussion undoubtedly will be richer and more thought-provoking
for his participation.

A great number of things in the Chief's opinion
may, and certainly will, be subject to serious debate. I am a bit
perplexed, however, that Prof. Garnett has saved his strongest fire for
the footnote 7 discussion of the Blaine Amendment. For one thing, I
doubt very much that the outcome of Davey turned on the historical
question of intent; I think it highly unlikely that the Court
would be inclined to permit the dead hand of 115-year-old
underlying intent at the federal level to determine the
constitutionality of a modern state program. In fairness to Rick,
however, that is not what troubles him. He is, instread,
shock[ed] by the grossly mistaken assertion that such
[anti-Catholic] views had no role in . . . relation to the Washington
provisions at issue, and by the Court's naked assertion that
the relevant Washington provisions, unlike the proposed Blaine Amendment
proper, owe nothing to anti-Catholicism.

There is definitely a disconnect here, and I
would genuinely welcome clarification.

There are two pertinent Washington
Constitutional provisions, both of which were included in the original
Washington Constitution.

The first, Article IX, section 4,
provides that [a]ll schools maintained and supported wholly