Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo)

[Steven Jamar]

Hosanna-Tabor is an easy case once you decide that the person is within the 
category of minister and the unanimity is not surprising on those facts. 
Contrary to the assertions of some, liberals do not respond in knee-jerk 
pavlovian fashion in favor of government regulation of any and all sorts nor do 
they always favor equality-based approaches over liberty-based ones. 

Hosanna-Tabor is only about the ministerial exception. It is not about 
determining who is a proper congregant and thus does not by its holding control 
the nursing worshipper issue. Of course as everyone agrees, the underlying idea 
of church autonomy in religious decisions would apply not just to ministerial 
control but also to control of members. But that is an extension, not a holding.

Oh, and by the way, the nursing worshipper is a real thing, not a hypo. And the 
Virginia law does in fact protect a woman’s right to nurse without covering her 
breast, no matter how absurd some may think such a law is. The only limitation 
is whether the woman has a right to be in that place or not. If the woman is 
determined by the church not to have a right to be in the sanctuary, then the 
law does not apply. 

I find it interesting that no one can imagine that this action to exclude a 
woman was not done by the church authority but rather by a self-interested 
congregant and that it might even be against church policy and that there might 
in fact be a gender discrimination claim here under certain circumstances 
regarding church doctrine and practice.  Or are we so suddenly separationist 
here but accommodationist in funding that there can never be a discrimination 
claim any time a church says religious doctrine and congregant definition?

The Court in H-T did not go that far and that is probably why it was unanimous.

Steve


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

"It is by education I learn to do by choice, what other men do by the 
constraint of fear."

Aristotle




> On Apr 28, 2017, at 9:21 AM, Ira Lupu  wrote:
> 
> Marty's excellent and probing questions deserve a reply, and at length.  Bob 
> Tuttle is not on this list, but he and Marty live within 15 minutes of each 
> other and me, and the three of us will have that conversation sometime soon, 
> face to face. I will add only that Bob and I discuss Chris Lund's very good 
> article in our "mystery of unanimity" piece. And I will assert that no one 
> else has even tried to explain the Court's very surprising unanimity in 
> Hosanna-Tabor.
> On Fri, Apr 28, 2017 at 7:18 AM Marty Lederman 
>  > wrote:
> 

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Re: Church excludes nursing woman

[Steven Jamar]

ists.ucla.edu>] On Behalf Of Ira Lupu
> Sent: Thursday, April 27, 2017 7:49 PM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu 
> <mailto:religionlaw@lists.ucla.edu>>
> Subject: Re: Church excludes nursing woman
>  
> Neither Eugene not Steven has made any attempt to state the principle for 
> which Hosanna-Tabor stands.  It certainly does not stand for a broad and free 
> floating principle of church autonomy, subject to some balancing test.  It 
> does not assert that broad principle, and it explicitly eschews any balancing 
> of interests.
>  
> Hosanna-Tabor is much cleaner that many have made it out to be.  It reaffirms 
> a longstanding constitutional principle, resting on both Religion Clauses of 
> the First Amendment, that the state may not resolve exclusively 
> ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of 
> Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 
> (2017),https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf 
> <https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf>.
>  
> Who is fit for ministry is such a question.  Another exclusively 
> ecclesiastical  question is who is entitled to attend a worship service, and 
> under what conditions.  So the church has a First A right to exclude a 
> breast-feeding woman from its worship service.  Once the church does so, it 
> is no longer a place where she has a right to be.
>  
> On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar <stevenja...@gmail.com 
> <mailto:stevenja...@gmail.com>> wrote:
> I assume freedom of association would protect a church in selecting its 
> membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
> decisions like separate seating for men and women in synagogues and mosques.
> But this is just a case of people being uncomfortable — not a 
> religiously-compelled doctrine or code of conduct. I don’t see either 
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just 
> any activity a church claims and RFRA requires a substantial burden on the 
> exercise of religion (assuming the VA RFRA is like the federal one — again, 
> I’m not interested in the particulars of the VA RFRA).
>  
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org/>
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> "In these words I can sum up everything I've learned about life:  It goes on."
> 
> --Robert Frost
> 
> 
>  
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu 
> <mailto:vol...@law.ucla.edu>> wrote:
>  
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> <https://www.washingtonpost.com/local/virginia-politics/this-breastf

Re: Church excludes nursing woman

[Steven Jamar]

Eugene clearly reads Hosanna-Tabor far more broadly than I do.

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

"Whenever you find yourself on the side of the majority, it is time to pause 
and reflect."

Mark Twain






> On Apr 27, 2017, at 6:19 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> 
> If I’m right that Hosanna-Tabor applies, wouldn’t the church 
> just have a categorical right to exclude members or attendees, 
> notwithstanding any antidiscrimination law, just as it has a categorical 
> right to dismiss clergy notwithstanding any discrimination law – even without 
> a showing that the church feels religiously compelled to violate the law?
>  
> To be sure, I don’t think that Hosanna-Tabor protects “just 
> any activity [of] a church.”  But it does protect decisions whether to accept 
> or reject clergy; might it equally protect decisions whether to accept or 
> reject church members or attendees?
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 10:13 AM
> To: Law Religion & Law List
> Subject: Re: Church excludes nursing woman
>  
> I assume freedom of association would protect a church in selecting its 
> membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
> decisions like separate seating for men and women in synagogues and mosques.
> But this is just a case of people being uncomfortable — not a 
> religiously-compelled doctrine or code of conduct. I don’t see either 
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just 
> any activity a church claims and RFRA requires a substantial burden on the 
> exercise of religion (assuming the VA RFRA is like the federal one — again, 
> I’m not interested in the particulars of the VA RFRA).
>  
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org/>
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> "In these words I can sum up everything I've learned about life:  It goes on."
> 
> --Robert Frost
> 
> 
> 
> 
>  
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu 
> <mailto:vol...@law.ucla.edu>> wrote:
>  
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> <https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b

Re: Church excludes nursing woman

[Steven Jamar]

I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).
 

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

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

--Robert Frost





> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> 
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> <https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c>
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org/>
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> "Years ago my mother used to say to me... 'In this world Elwood' ... She 
> always used to call me Elwood... 'In this world Elwood, you must be Oh So 
> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend 
> pleasant.  You may quote me." --Elwood P. Dowd
> 
> - Mary Chase, "Harvey", 1950
> 
> 
> 
>  
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
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> <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
> 
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> 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) 
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Church excludes nursing woman

[Steven Jamar]

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
 


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

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




___
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Re: Bible classes in elementary schools

[Steven Jamar]

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone 


> On Apr 23, 2017, at 11:48 PM, Finkelman, Paul  
> wrote:
> 
> The community apparently raises $500,000 a year for the course – that should 
> cover attorney’s fees.  Nice irony if the county and the donors help support 
> the  Freedom From Religion Foundation.
>  
>  
> ***
> Paul Finkelman
> John E. Murray Visiting Professor of Law
> University of Pittsburgh School of Law
> 3900 Forbes Avenue
> Pittsburgh, PA  15260
> paul.finkel...@albanylaw.edu
> paul.finkel...@yahoo.com
> paul.finkel...@pitt.edu
> o) 412-648-2079
> c) 518-605-0296
>  
> 
> 
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Sunday, April 23, 2017 11:36 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Bible classes in elementary schools
>  
> I think it is impossible to teach a constitutionally defensible Bible class 
> to 7 year olds. And anytime the Bible course is described as "history," the 
> game is over. What a waste of money for this School District to have to pay 
> the plaintiffs' attorneys fees, even if Liberty Institute is representing the 
> School  Board for free.
> On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
>  wrote:
> One could teach a constitutional Bible course in public schools. The odds 
> that they are teaching it that way in Princeton, WV seem vanishingly small. 
> And the story's quotations from the curriculum seem to eliminate that slim 
> possibility.
> 
>  
> 
> Of course there is no constituency for teaching the Bible in the agnostic way 
> that would be constitutional. The political demand is to teach it as Sunday 
> School.
> 
>  
> 
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Marty Lederman [martin.leder...@law.georgetown.edu]
> 
> Sent: Sunday, April 23, 2017 9:49 PM
> To: Law & Religion issues for Law Academics
> Subject: Bible classes in elementary schools
> Any possibility this is constitutional?
> ___
> 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
> 
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> 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.
> --
> Sent from Gmail Mobile
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> 
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Re: Scalia's views of RFRA?

[Steven Jamar]

But that language is Scalia explaining why he is not doing a balancing test but 
rather the abdication test. Scalia clearly wanted out of religious exercise 
jurisprudence and did so — he did not adopt a balancing test.  I guess I 
misread your original post.

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

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




> On Nov 22, 2016, at 4:26 PM, Case, Mary Anne <mac...@law.uchicago.edu> wrote:
> 
> The quoted language comes directly from Scalia’s opinion in Smith.  The full 
> sentence is: ”It may fairly be said that leaving accommodation to the 
> political process will place at a relative disadvantage those religious 
> practices that are not widely engaged in; but that unavoidable consequence of 
> democratic government must be preferred to 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.”  There thus seem to be 
> 2 typical Scalia desiderata in tension with one another – the desire for 
> clear rules and the desire that the laws have democratic warrant.  In the 
> quoted sentence, he seems to be suggesting that sending accommodation back to 
> the legislature will have the advantage of getting the courts out of the 
> business of balancing, which he hated, but of course RFRA mandates precisely 
> such balancing, unless it is read instead to “make each conscience a law unto 
> itself.”
>   <>
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Tuesday, November 22, 2016 3:20 PM
> To: Law Religion & Law List
> Subject: Re: Scalia's views of RFRA?
>  
> I never read Smith that way — it was a straight up carte blanche to the 
> legislative and executive branches provided the law was neutral and generally 
> applicable — no weighing of competing interests involved.
>  
> Steve
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org/>
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> "A life directed chiefly toward the fulfillment of personal desires sooner or 
> later always leads to bitter disappointment."
> 
> Albert Einstein
> 
> 
>  
> On Nov 22, 2016, at 4:07 PM, Case, Mary Anne <mac...@law.uchicago.edu 
> <mailto:mac...@law.uchicago.edu>> wrote:
>  
> judges the task of “weigh[ing] the social importance of all laws against the 
> centrality of all religious beliefs”(Smith)
>  
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
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> <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: Scalia's views of RFRA?

[Steven Jamar]

I never read Smith that way — it was a straight up carte blanche to the 
legislative and executive branches provided the law was neutral and generally 
applicable — no weighing of competing interests involved.

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

"A life directed chiefly toward the fulfillment of personal desires sooner or 
later always leads to bitter disappointment."

Albert Einstein



> On Nov 22, 2016, at 4:07 PM, Case, Mary Anne  wrote:
> 
> judges the task of “weigh[ing] the social importance of all laws against the 
> centrality of all religious beliefs”(Smith)

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

[Steven Jamar]

I supported RFRA for years. I am becoming a supporter of Smith.

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

"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."

Naomi Klein





> On Aug 18, 2016, at 6:18 PM, Marty Lederman  wrote:
> 
> Exactly, Eugene.  The employer already has available to it the "alternative" 
> the judge creatively surmised.  The employer himself didn't propose it, no 
> doubt because he would object to Stephens not wearing a tie (not to mention 
> other indicia of the fact that she's a woman, e.g., make-up), and to 
> requiring all other employee to wear the court's proposed unisex uniform. 
> 
> The employer's own proposed "less restrictive alternatives," on the other 
> hand, are the reductio ad absurdum examples that flow from Alito's 
> misbegotten reasoning in Hobby Lobby:
> 
> Moreover, the government could employ other alternatives to ensure that 
> Stephens retains employment or the benefits of employment. For example, the 
> federal government could directly hire Stephens and allow Stephens to dress 
> however Stephens wants; the government could pay Stephens a full salary and 
> benefits from the time of Stephens’s discharge until Stephens acquires 
> comparable employment; or the government could provide incentives for other 
> employers (including, but not limited to, employers in the funeral industry) 
> to hire Stephens and allow Stephens to dress as a member of the opposite sex 
> on the job. See Hobby Lobby, 134 S. Ct. at 2780 (“[F]or the Government to 
> assume the cost of providing the four contraceptives at issue to any women 
> who were unable to obtain them . . . due to their employers’ religious 
> objections[] . . . would certainly be less restrictive of the plaintiffs’ 
> religious liberty”). With all of these alternatives available to the 
> government, the EEOC cannot meet RFRA’s least-restrictive means requirement 
> and thus cannot satisfy strict scrutiny.
> 
> I wouldn't have even had the gall to put that on a law school exam, it's such 
> a ridiculous notion of what the statute requires (but not inconsistent with 
> Hobby Lobby!). 
> 
> I therefore agree that the LRM analysis in opinion is absurd.  But so, I 
> think, is the "substantial burden" discussion.  This is what we might expect 
> as a result of the complicity arguments proffered in the contraception cases: 
>  Now, an employer argues with a straight face that his religion would 
> prohibit him from retaining an employee who wears a skirt, if that employee 
> was born with male reproductive organs, even if compelled to do so by law.
> 
> What the contraception litigation has wrought . . . .
> 
> On Thu, Aug 18, 2016 at 5:59 PM, Volokh, Eugene  > wrote:
> In today’s EEOC v. R.G. & G.R. Harris Funeral Homes, 
> http://www.politico.com/f/?id=0156-9f0a-d073-a5d7-df9ef3920001 
> , a 
> federal district court rejected a EEOC claim on RFRA grounds.  I’m a bit 
> puzzled, though, by the court’s reasoning, and I wanted to ask what fellow 
> list members thought.
> 
>  
> 
> 1.  First, the facts:  Harris Funeral Homes, 95% owned by Thomas Rost, has a 
> dress code:  Men are to wear traditional male suits with neckties, while 
> women are to wear skirt-suits.  (The district court concludes that this dress 
> code violates Title VII’s ban on sex discrimination.)  Anthony Stephens 
> worked for several years for Harris Funeral Homes, but then began 
> transitioning to female, under the name of Amiee Stephens; when Harris 
> learned that Stephens was going to insist on wearing skirt-suits to work, 
> Harris fired Stephens.
> 
>  
> 
> 2.  The EEOC sued, claiming this was impermissible sex-stereotyping 
> discrimination under Price Waterhouse, because Stephens was fired for 
> insisting on wearing stereotypically female clothing.  Rost argued that 
> requiring him to have the business represented by someone whom Rost believes 
> to be male wearing distinctively female clothing would violate Rost’s 
> religious beliefs:
> 
>  
> 
> Rost believes “that the Bible teaches that God creates people male or 
> female.” He believes that “the Bible teaches that a person’s sex is an 
> immutable God-given gift and that people should not deny or attempt to change 
> their sex.” Rost believes that he “would be violating God’s commands” if he 
> were to permit one of the Funeral Home’s funeral directors “to deny their sex 
> while acting as a representative of [the Funeral Home]. This would violate 
> God’s commands because, among other reasons, [Rost] would be directly 
> involved in supporting the idea that sex is a changeable social construct 
> rather than an immutable God-given gift.” Rost believes that 

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

[Steven Jamar]

Does motive for treating people differently on the basis of sex matter?  
Surely.  Separate bathrooms, changing rooms, and sports teams, for example.  
Those three examples are justified on the basis of other interests such as 
cultural norms of privacy and “decency” and on genuine gender-linked, physical 
differences with respect to athletic ability — if you want to have girls and 
women play competitive sports, at some level you must separate the teams on the 
basis of gender — a relative few outliers not withstanding. 

So how about religious justification?  This is not a garden-variety 
sex-discrimination.  This is a religious accommodation that is linked to sex.  
So for me the starting point is the religious accommodation.  Can the 
government accommodate any religion’s moral needs when the government provides 
particular benefits to the public at large?  (Not MUST the government do so, 
but CAN it do so?)  Clearly we have a huge accommodationist regime in place at 
present (exhibit A — RFRA).  So, as a core principle, accommodation is 
constitutional, though in the standard case, the accommodation is to make space 
for the liberty interest in the free exercise of religion, and is not done to 
further equality interests.  But the principle could be applied in the service 
of equality as well as in the service of liberty — as a principle.  We may 
choose not to go down that road, but accommodation for equality seems not to be 
on its face improper in theory.

The burden on non-co-religionists seems small, here — a few hours per week.  If 
we separate it out such that the government were doing it to accommodate pure 
religion without regard to gender, would it be ok?If a religion contended 
that use of such facilities (changing rooms and the pool) with anyone from 
another religion would be improper, could the government accommodate the 
single-religion use for some periods of time?  Seems viscerally problematic, 
doesn’t it.  And yet schools often accommodate Sabbatarians for various 
functions (including moot court competitions).  

When we add in gender — what does that change?  Does it make the accommodation 
claim stronger or weaker?  Women are not excluded in general — but the rules of 
open to everyone excludes a subset of women on religious (not gender alone) 
grounds.  Can the government accommodate that special subgroup?  Again, not 
must it do so, but can it?

On balance, I think that the law is pliable enough to allow the religion and 
equality interests here to permit this sort of accommodation even though there 
would be no constitutional violation if the government did not accommodate the 
special interest at stake.  

I don’t think inability to swim at a public pool substantially burdens the free 
exercise of religion, though it does skew benefits away from a particular sect 
and so does in some equality sense burden that sect’s exercise of religion.

I’ve not worked this all out personally yet, but I do think there is plenty of 
room in our doctrine as it has developed to this point to justify just about 
any result here.  It is, in this sense, a new case.

Steve


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

"Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think."

- Martin Luther King Jr., "Strength to Love,” 1963





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Re: speech and religion hypothetical

[Steven Jamar]

My understanding of the current status of the designated public forum doctrine 
is that it would not matter whether it was a private sort of thing like a 
tuition-paid class for enrolled students or a lecture open to the public.

Steve

> On Apr 22, 2016, at 1:20 PM, Alan E Brownstein <aebrownst...@ucdavis.edu> 
> wrote:
> 
> Steve and Eugene are confirming my initial take on this issue. Does the 
> analysis change if the lecture is open to  the university community (as are 
> most such lectures by invited speakers)? It is an open lecture as opposed to 
> a class where only enrolled students are entitled to attend.
> 
> As Steve suggests, there would be a different issue if the protestors were 
> denied access to a room for their own expressive activities, but that is not 
> the case here.
> 
> Alan
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> <religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Steven Jamar 
> <stevenja...@gmail.com <mailto:stevenja...@gmail.com>>
> Sent: Friday, April 22, 2016 4:47:01 AM
> To: Law Religion & Law List
> Subject: Re: speech and religion hypothetical
>  
> Oh oh.  Eugene and I agree completely on something!  Protesters in a limited 
> designated public forum are not engaging in protected activity.  There is no 
> constitutional right to disrupt another’s speech in such a setting.
> 
> If the school refused to give the protesters a forum at all, that would be 
> viewpoint discrimination and would violate the constitution.
> 
> Steve
> 
>> On Apr 22, 2016, at 1:43 AM, Volokh, Eugene <vol...@law.ucla.edu 
>> <mailto:vol...@law.ucla.edu>> wrote:
>> 
>>No and no.  A content-neutral restriction forbidding the 
>> disruption of speakers who have been invited by a group that has booked a 
>> room, and thus gotten exclusive access to the room for that time, is 
>> certainly constitutional.  And religious speakers are no more and no less 
>> protected here.
>>  
>>Eugene
>>  
>> From: religionlaw-boun...@lists.ucla.edu 
>> <mailto:religionlaw-boun...@lists.ucla.edu> 
>> [mailto:religionlaw-boun...@lists.ucla.edu 
>> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Alan E Brownstein
>> Sent: Thursday, April 21, 2016 9:41 PM
>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu 
>> <mailto:religionlaw@lists.ucla.edu>>
>> Subject: speech and religion hypothetical
>>  
>> I recognize this hypothetical, based very indirectly on a real incident, is 
>> more speech than religion, but I hope Eugene will allow my post to go 
>> forward in any case.
>>  
>> Suppose a LGBT student group at a public university invites a guest speaker 
>> to present a scheduled lecture in a university classroom. The campus 
>> administration allows student groups to invite speakers and to sign up to 
>> use campus facilities with few restrictions.  It is a common practice. A 
>> group of religious students strongly opposed to the speaker's message 
>> disrupt the speaker's presentation after it has begun. They commandeer the 
>> front of the room and chant anti-LGBT messages for 3 - 4 minutes. Then they 
>> leave. (Alternatively, we can reverse the facts and have  the presentation 
>> of a religious speaker invited by a religious group of students disrupted by 
>> gay rights proponents to a similar extent.)
>>  
>> I have two questions for list members.
>>  
>> 1. Is the conduct of the protestors protected by the Free Speech Clause of 
>> the First Amendment? Does the First Amendment prevent the university from 
>> prohibiting this kind of protest through content neutral time, place and 
>> manner regulations and from punishing the protestors' conduct if the 
>> regulations are disobeyed? (If you think that this is or is not protected 
>> speech, are there particular cases you rely on to support this conclusion?)
>>  
>> 2. Does the answer to the first question change in any way because religious 
>> speakers, protestors, and messages are involved in these incidents.
>>  
>> Alan Brownstein
>>  
>>  
>>  
>>  
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu 
>> <mailto:Religionlaw@lists.ucla.edu>
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
>> <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religi

Re: speech and religion hypothetical

[Steven Jamar]

Oh oh.  Eugene and I agree completely on something!  Protesters in a limited 
designated public forum are not engaging in protected activity.  There is no 
constitutional right to disrupt another’s speech in such a setting.

If the school refused to give the protesters a forum at all, that would be 
viewpoint discrimination and would violate the constitution.

Steve

> On Apr 22, 2016, at 1:43 AM, Volokh, Eugene  wrote:
> 
>No and no.  A content-neutral restriction forbidding the 
> disruption of speakers who have been invited by a group that has booked a 
> room, and thus gotten exclusive access to the room for that time, is 
> certainly constitutional.  And religious speakers are no more and no less 
> protected here.
>  
>Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Alan E Brownstein
> Sent: Thursday, April 21, 2016 9:41 PM
> To: Law & Religion issues for Law Academics  >
> Subject: speech and religion hypothetical
>  
> I recognize this hypothetical, based very indirectly on a real incident, is 
> more speech than religion, but I hope Eugene will allow my post to go forward 
> in any case.
>  
> Suppose a LGBT student group at a public university invites a guest speaker 
> to present a scheduled lecture in a university classroom. The campus 
> administration allows student groups to invite speakers and to sign up to use 
> campus facilities with few restrictions.  It is a common practice. A group of 
> religious students strongly opposed to the speaker's message disrupt the 
> speaker's presentation after it has begun. They commandeer the front of the 
> room and chant anti-LGBT messages for 3 - 4 minutes. Then they leave. 
> (Alternatively, we can reverse the facts and have  the presentation of a 
> religious speaker invited by a religious group of students disrupted by gay 
> rights proponents to a similar extent.)
>  
> I have two questions for list members.
>  
> 1. Is the conduct of the protestors protected by the Free Speech Clause of 
> the First Amendment? Does the First Amendment prevent the university from 
> prohibiting this kind of protest through content neutral time, place and 
> manner regulations and from punishing the protestors' conduct if the 
> regulations are disobeyed? (If you think that this is or is not protected 
> speech, are there particular cases you rely on to support this conclusion?)
>  
> 2. Does the answer to the first question change in any way because religious 
> speakers, protestors, and messages are involved in these incidents.
>  
> Alan Brownstein
>  
>  
>  
>  
> ___
> 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.


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

Two quotes from Louis Armstrong:  
"You blows who you is." 
"If ya ain't got it in ya, ya can't blow it out." 

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FSM not recognized as a religion for 1st Amendment purposes

[Steven Jamar]

http://www.atlasobscura.com/articles/pastafarianism-is-still-not-a-legally-recognized-religion-in-the-united-statesyet?utm_medium=email_source=digg
 


I don’t know, a good wine with friends and pasta can be a religious experience 
for some people, I think.  :)

Steve

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

"I don't know whether the world is full of smart men bluffing
or imbeciles who mean it." 
-- Morrie Brickman

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California seal cross

[Steven Jamar]

I assume this is correct under the facts here — but if it were on the seal 
continuously from 100+ years ago, I assume it would be ok.  But here, with it 
being off, then being put back on, it gets the feel religious 
motivation/intent/purpose, running afoul of Lemon.

Thoughts?

http://www.latimes.com/local/lanow/la-me-ln-la-county-seal-cross-20160407-story.html


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

"I care not what subject is taught if only it be taught well."

Thomas H. Huxley





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Re: The Charlotte City Ordinance and Religious Freedom

[Steven Jamar]

I think it is wrong to treat enforcement mechanisms as the sine qua non of 
whether something is law.


> On Mar 31, 2016, at 11:28 PM, Finkelman, Paul  
> wrote:
> 
> I think David has it exactly right.  If the law says you cannot use the mens 
> room with a birth certificate saying you are male then you are breaking the 
> law.  If there is no enforcement mechanism, then what sort of law is it?  And 
> if you a transwoman, who is tall and maybe have residual traits of being 
> male, are you going to be accosted at the women's room by the owner of a 
> business?  Will some business hire bathroom police?  
> 
> The paranoia of a man in the ladies room is mostly just that and a 
> non-transwoman could dress up like a woman and to the ladies room with or 
> without laws stigmatizing trans people and subjecting them to potential legal 
> sanctions and public humiliation.  This law seems designed to allow anyone to 
> humiliate and go after transpeople.
> 
> And as I read it the law allows discrimination in housing, employment, and 
> access to services.  A doctor or dentist might legitimately say, "I don't 
> treat your kind."
> 
> Most of all, it stimulates a climate of fear and hatred towards Trans people 
> and the entire LGBT community.  
> 
> 
>  
> *
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> Canada
> c) 518.605.0296
> paul.finkel...@albanylaw.edu 
> paul.finkel...@yahoo.com and
> Senior Fellow
> Penn Program on Democracy, Citizenship, and Constitutionalism
> University of Pennsylvania
> *
> 
> 
> 
> From: religionlaw-boun...@lists.ucla.edu 
>  
>  > on behalf of David Cruz 
> >
> Sent: Thursday, March 31, 2016 11:13 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Off list -- Re: The Charlotte City Ordinance and Religious 
> Freedom
>  
> It strikes me that suggestions that (some) trans men should just use men’s 
> restrooms in South Carolina and would get away with it because they would be 
> perceived as a men does not really speak to the fact that to do so, they will 
> now have to be lawbreakers.  This to me just underscores and/or compounds the 
> many problems of HB2.
> 
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
> 
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> 
> To subscribe, unsubscribe, change options, or get password, see 
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> 
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.

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

"Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think."

- Martin Luther King Jr., "Strength to Love,” 1963

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State RFRAs and Breyer's balancing test

[Steven Jamar]

Have any state RFRA sought to use a non-strict scrutiny balancing approach 
under which the weight of the interest of the religious exceptionalist, the 
state’s interest, and the employers/public accomodations/etc. interest are 
weighed to assess the  proper outcome?


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

"Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think."

- Martin Luther King Jr., "Strength to Love,” 1963

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namaste and yoga banned

[Steven Jamar]

https://www.washingtonpost.com/news/morning-mix/wp/2016/03/24/ga-parents-offended-by-the-far-east-religion-of-yoga-get-namaste-banned-from-school/

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

"No bird soars too high if he soars with his own wings."

William Blake

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In re Tam and CLS

[Steven Jamar]

Not really wanting to restart this issue, but in re-reading CLS v. Martinez, I 
came across this gem:

"The First Amendment shields CLS against state prohibition of the 
organization’s expressive activity, however exclusionary that activity may be. 
But CLS enjoys no constitutional right to state subvention of its selectivity.” 

One can surely distinguish the cases, but one can also make the argument that 
registering a trademark is a benefit that the government can condition on 
non-disparagement and that the Slants “enjoy no constitutional right to state 
subvention” of its disparaging trademark.

And how often does anyone get to use the word “subvention” anyway?

Steve

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








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Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

rom:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
>> *Sent:* Sunday, January 17, 2016 5:19 PM
>> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu
>> >
>> *Subject:* Re: The Establishment Clause question in the Trinity Lutheran
>> case
>>
>>
>>
>> An equal treatment theory also does not fit the "ministerial exception"
>> constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I
>> wonder if Eugene, and others who question the Trinity Lutheran Church
>> outcome, think that unanimous decision is incorrect.
>>
>>
>> Sent from my iPhone
>>
>>
>> On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu> wrote:
>>
>> To clarify, Eugene: Would this "maximalist equal treatment" theory
>> prohibit legislative exemptions available to religion but not non-religion,
>> or just legislative burdens placed on religion but not non-religion? If
>> only the latter, is it really a maximalist equal treatment theory? If both
>> the former and the latter, is it remotely reconcilable with either current
>> doctrine or longstanding tradition allowing legislative accommodation of
>> religion? See Cutter ("Religious accommodations ... need not 'come packaged
>> with benefits to secular entities'").
>>
>>
>>
>> - Jim
>>
>>
>>
>>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> wrongly) forward the messages to others.
>



-- 
Prof. Steven Jamar
Howard University School of Law
Associate Director for International Programs, Institute for Intellectual
Property and Social Justice (IIPSJ)
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Re: help wanted

[Steven Jamar]

I don’t think Title VII does the work here — the undue hardship standard is so 
de minimis as to be illusory in most cases where it would matter.


> On Feb 22, 2016, at 1:51 PM, Greg Hamilton <greg.hamil...@nw.npuc.org> wrote:
> 
> From my vantage point in introducing, shepherding and helping to pass Idaho’s 
> Free Exercise of Religion Act of 2000, and in failing with both Alaska and 
> Oregon state Religious Freedom Restoration Act efforts over an 18-year period 
> since 1998 is mostly a political one, albeit a constitutional one. It is 
> obvious why, given the problem under the current circumstances—the U.S. 
> Supreme Court’s upholding of same-sex marriage as constitutional under the 
> Equal Protection Clause, which we don’t consider to be an unhappy problem. <>
>  
> We helped defeat Montana’s radical RFRA bill proposal in the 2015 legislative 
> session because it had all kinds of Establishment Clause problems, along with 
> attempting to provide blank exemptions to small business owners, which we 
> believe are best handled by the courts when factoring in motivation and 
> context of each situation. A similar state religious freedom restoration act 
> proposal was introduced in Washington State, but it didn’t make it out of 
> Committee for similar reasons.
>  
> Finally, isn’t Title VII anti-discrimination/accommodation law, along with 
> the Federal RFRA law, more than already satisfactory to address this matter 
> involving state and federal employees?
>  
> Gregory W. Hamilton, President
> Northwest Religious Liberty Association
> 5709 N. 20th Street
> Ridgefield, WA 98642
> Office: (360) 857-7040
> Website: www.nrla.com <http://www.nrla.com/>
>  
>  <http://www.nrla.com/>
>  
> Championing Religious Freedom and Human Rights
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Monday, February 22, 2016 8:39 AM
> To: Law Religion & Law List <religionlaw@lists.ucla.edu 
> <mailto:religionlaw@lists.ucla.edu>>
> Subject: help wanted
>  
> How might Congress draft a federal law that requires states to accommodate 
> religious beliefs so that state employees are free to refuse to perform tasks 
> that are contrary to their religious beliefs?  We have the Boerne problems of 
> making a record and RFRA being held to be too much of a bludgeon.  But 
> assuming we could somehow get past that, what would the language be?  Could 
> this work:
>  
> "Every state must accommodate the religious beliefs and practices of its 
> employees and those persons with which it contracts by exempting them from 
> performing tasks that are contrary to their religious beliefs.”
>  
> Even assuming the record-requirement part of Boerne could be met, I just 
> can’t seem to craft language that I think would be likely to pass 
> constitutional muster.
>  
> So, help wanted.
>  
> Steve
>  
>  
>  
> -- 
> Prof. Steven D. Jamar   
> Howard University School of Law 
> vox:  202-806-8017  
> fax:  202-806-8567
> http://sdjlaw.org <http://sdjlaw.org/>
>  
> “It’s not the note you play that’s the wrong note – it’s the note you play 
> afterwards that makes it right or wrong.”
> 
> Miles Davis
>  
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> <http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
> 
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> 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.


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

"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."

Naomi Klein





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Re: help wanted

[Steven Jamar]

Well, the court has said that accommodating religion is not an establishment . 
. . . 


> On Feb 22, 2016, at 1:50 PM, Ed Darrell <edarr...@sbcglobal.net> wrote:
> 
> How does Congress get around the first requirement of laws on religion, that 
> "Congress shall make no law?"
> 
> Interesting question, but like the computer said in War Games, perhaps "the 
> only way to win is not to play." 
> 
> Ed Darrell
> Dallas
> 
> 
> From: Steven Jamar <stevenja...@gmail.com>
> To: Law Religion & Law List <religionlaw@lists.ucla.edu> 
> Sent: Monday, February 22, 2016 10:38 AM
> Subject: help wanted
> 
> How might Congress draft a federal law that requires states to accommodate 
> religious beliefs so that state employees are free to refuse to perform tasks 
> that are contrary to their religious beliefs?  We have the Boerne problems of 
> making a record and RFRA being held to be too much of a bludgeon.  But 
> assuming we could somehow get past that, what would the language be?  Could 
> this work:
> 
> "Every state must accommodate the religious beliefs and practices of its 
> employees and those persons with which it contracts by exempting them from 
> performing tasks that are contrary to their religious beliefs.”
> 
> Even assuming the record-requirement part of Boerne could be met, I just 
> can’t seem to craft language that I think would be likely to pass 
> constitutional muster.
> 
> So, help wanted.
> 
> Steve
> 
> 
> 
> -- 
> Prof. Steven D. Jamar   
> Howard University School of Law 
> vox:  202-806-8017  
> fax:  202-806-8567
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> “It’s not the note you play that’s the wrong note – it’s the note you play 
> afterwards that makes it right or wrong.”
> 
> Miles Davis
> 
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> <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; 
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> forward the messages to others.
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.

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

"A word is not a crystal, transparent and unchanged, it is the skin of a living 
thought and may vary greatly in color and content according to the 
circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)







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help wanted

[Steven Jamar]

How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



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

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

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Texas Cheerleaders display Bible Verses on banners

[Steven Jamar]

Seems to me there is an establishment problem here.  Cheerleaders are sponsored 
by the school and are displaying religious messages to a captive audience who 
could choose to forego attending the game or else putting up with the religious 
banners.

Has the free speech approach become so dominant that stopping such displays 
becomes content-based discrimination and avoiding establishing religion doesn’t 
meet strict scrutiny as a reason to infringe on such speech?

https://www.washingtonpost.com/national/texas-top-court-sides-with-cheerleaders-in-bible-banner-suit/2016/01/29/0939bbce-c6b7-11e5-b933-31c93021392a_story.html
-- 
Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org

Two quotes from Louis Armstrong:  
"You blows who you is." 
"If ya ain't got it in ya, ya can't blow it out." 

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Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

I agree that play in the joints is a way to describe how to handle the problem 
of those situations where general principles of non-establsihment run into 
general principles of free exerice.  However, I do not think that maximalist 
equality or free exercise+equality captures the range of free exercise 
interests and principles at stake.  

There are not hard edged rules in some hard cases.  They simply cannot be 
decided syllogistically  or even on a principled balance of principles.  Some 
things are just ad hoc and highly fact dependent and based on judgments the 
premises for which are not always fully articulated or even articulable.  

I think both Rosenberger and CLS are this type of case.  There are lots of 
words there, but at the end of the day, neither one is fully defensible on any 
particular principle or set of principles that anyone would apply rigorously 
across the board.

Steve

> On Jan 17, 2016, at 12:58 PM, Levinson, Sanford V <slevin...@law.utexas.edu> 
> wrote:
> 
> Shouldn't we admit that "play in the joints" is simply a euphemism for 
> judicial balancing between the competing notions of no establishment, on the 
> one hand, and free exercise+equality on the other. Neither makes sense as 
> maximalist theory. The former would prohibit police protection, the latter 
> would require the state to build churches if it auditoria for the people to 
> use as gathering places to discuss important issues. So we rely on 
> Rehnquist's and his successors' hunches as to where one should draw the line. 
> We delude ourselves in believing that legal doctrine can work itself pure in 
> this--or, for that matter, any other significant--area. "The life of the law 
> is experience, not logic."
> 
> The problem is that it is awkward for well-paid law professors to teach their 
> students that law often comes down to the idiosyncratic views of the median 
> justices and that it is basically foolish to believe there are true doctrinal 
> rationales that can predict future decisions. 
> 
> Sandy
> 
> Sent from my iPhone
> 
> On Jan 17, 2016, at 7:45 AM, Steven Jamar <stevenja...@gmail.com 
> <mailto:stevenja...@gmail.com>> wrote:
> 
>> It seems to me that the play-in-the-joints theory and providing 
>> accommodations between exercise and establishment shoiuld win out in this 
>> instance thereby upholding the Missouri Constitutional ban on direct and 
>> indirect financial support for religious organizations. 
>> 
>> A ruling that pushes the neutrality principle this far as to prohibit states 
>> from making these sorts of choices and judgments seems likely to further 
>> make a hash of the problem rather than simplifying or clarifying things.  A 
>> rule that allows for such subsidy of religion by the state while allowing 
>> states not to so subsidize religions in these ways seems to be what the 
>> voucher cases seem to indicate as the direction the law is going.  
>> 
>> But as for me, all bets are off on this one as to result and as to theories 
>> selected from the grab-bag the court has created over the decades.
>> 
>> Steve
>> 
>> -- 
>> Prof. Steven D. Jamar   
>> Howard University School of Law 
>> vox:  202-806-8017  
>> fax:  202-806-8567
>> http://sdjlaw.org <http://sdjlaw.org/>
>> 
>> “The two most important days in your life are the day you are born and the 
>> day you find out why.” 
>> Mark Twain
>> 
>> 

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

"A word is not a crystal, transparent and unchanged, it is the skin of a living 
thought and may vary greatly in color and content according to the 
circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)







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Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

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

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

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

Steve

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

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




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Re: Research Queries

[Steven Jamar]

I didn’t think we had respect within our discipline or influence within our 
discipline through law reviews generally!  :)

> On Dec 29, 2015, at 11:33 AM, Conkle, Daniel O.  wrote:
> 
> A colleague of mine, who is working on an interdisciplinary book, has asked 
> me for ideas on the following: 
>  
> First, to reply to the criticism that law reviews are not respected by other 
> disciplines, I am searching for examples of important scholarship published 
> in law reviews by social scientists, historians or religion scholars rather 
> than academic lawyers. Second, to reply to the criticism that legal scholars 
> have no influence outside their discipline, I am searching for examples where 
> social scientists, historians or religion scholars have recognized the 
> contribution to knowledge in their fields made by legal scholars with no 
> additional credentials.
>  
> If anyone has thoughts that I might pass along to him, please let me know, 
> off-list.  Thanks in advance.
>  
> Dan
>  
> Daniel O. Conkle 
> Robert H. McKinney Professor of Law 
> Indiana University Maurer School of Law 
> Bloomington, Indiana  47405 
> (812) 855-4331 
> fax (812) 855-0555 
> e-mail con...@indiana.edu  
> 
>  
> ___
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> 
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> 
> 
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-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"I have nothing new to teach the world. Truth and nonviolence are as old as the 
hills." 

Gandhi





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Re: the unconstitutionality of barring Muslims from entering the U.S.

[Steven Jamar]

I think too much is made about the difficulty of deciding who is or who is not 
a member of a religion.  First, self-identification would handle most cases.  
Second, a simple questionaire of just a few key points would be sufficient to 
identify a Muslim — unless the person was lying, but pretty much nothing is 
going to be able to handle that problem.

We can keep people out based on the country they are coming from and that plus 
the name could be used as a pretty good proxy for religion since names often 
divide along religious lines in many countries.

But to keep out all Muslims?  Clearly if the establishment clause applies, that 
would be an action respecting the establishment of religion by disfavoring one 
religion compared to all others.  But does the establishment clause apply to 
limit what the government does with respect to immigration?  I should think 
that basic establishment principles of neutrallity, non-endorsement, and 
accommodation are all being violated as, indeed, would separation.  Lemon would 
prohibit such an action under the purpose to exclude prong.

So, I think the structural view of the establishment clause would win out here 
— or at least should.

But, I’m pretty sure this is (still) utterly fanciful, 
angels-dancing-on-the-head-of-a-pin sort of stuff.

Steve Jamar

> On Dec 8, 2015, at 8:10 PM, Ira Lupu  wrote:
> 
> There has been much discussion in the press and on blog posts re: the 
> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from 
> entering the U.S.  Several commentators have suggested the "plenary power" 
> doctrine, governing Congressional power over immigration, would insulate such 
> a proposal from a finding of unconstitutionality. 
> I think the strongest constitutional argument against this proposal is based 
> on the Establishment Clause, which severely limits the government's power to 
> decide who is and who is not a Muslim. Suppose the person seeking entry 
> disputes the label; how will immigration officials adjudicate the question? 
> What criteria would the government apply to decide who fits the 
> disqualification? This is an ecclesiastical question, the decisions of which 
> are off-limits to the government. (See Hosanna-Tabor v. EEOC; more generally, 
> see Lupu & Tuttle, Secular Government, Religious People, chaps. 1-2.)
>  Because the Establishment Clause is structural, and not rights-oriented, It 
> does not matter whether or not the decisions pertain to American nationals. 
> The plenary power doctrine cannot undo this structural limitation, any more 
> than it can undo limitations based on separation of powers (e.g., Congress 
> may not delegate to a congressional committee the power to process 
> immigration cases).
> 
> Reactions from list members to this argument?
> 
> -- 
> 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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> 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.


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

"Face violence if necessary, but refuse to return violence.  If we respect 
those who oppose us, they may achieve a new understanding of the human 
relations involved."

Martin Luther King, Jr.





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Satanists take the field

[Steven Jamar]

cross posted con law profs and law and religion listserves

1.  Does assistant coach Kennedy have the right to lead prayers after 
football games?
2.  Does assistant coach Kennedy have the right to personally publicly pray 
at midfield after football games?
3.  Do the Satanists and other groups have the right to conduct rituals on 
the football field after football games because the field is not a designated 
public forum for religious speech if the school district allows the assistant 
coach to publicly pray there?
4.  Who wins the lawsuits that may be filed?  The coach for religious 
discrimination in employment?  The school for disciplining him for not 
following instructions not to pray?  The satanists for exercising first 
amendment rights?

Steve Jamar


> http://www.cbsnews.com/news/satanists-to-attend-high-school-game-over-prayers-on-field/
>  
> 

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

"I do not at all resent criticism, even when, for the sake of emphasis, it for 
a time parts company with reality."

Winston Churchill, speech to the House of Commons, 1941




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Re: Civil determination of a religious question in Rowan County?

[Steven Jamar]

The underlying theory is exactly the same — complicity with evil.  Once the 
naked assertion is made, it is, after Hobby Lobby, uncontestable by the 
government or courts.

Analogizing and distinguishing are tricky, manipulable rhetorical devices.  But 
you can’t dodge the similarities just because there are differences.  The 
question is not are there similarities or differences, but rather which ones 
that invariably exist matter to the court.

Steve


> On Sep 22, 2015, at 1:22 AM, Michael Worley  wrote:
> 
> A state actor does not have to defer to a religious belief for a benefit it 
> bestows (granting a marriage license).  The actor is, however, required under 
> Hobby Lobby to not coerce a private, unelected, citizen to grant a benefit 
> contrary to its religious belief.
> 
> The issues are worlds apart.  Hobby Lobby never asked the govt. to identify 
> the drugs as abortcifatents; only to get hobby lobby out of the picture.


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

"I have the audacity to believe that peoples everywhere can have three meals a 
day for their bodies, education and culture for their minds, and dignity, 
equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)





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Re: Assessing a Proposed Solution to the KY Case

[Steven Jamar]

I didn’t think the complicity argument was plausible until Hobby Lobby said 
otherwise.

> On Sep 16, 2015, at 2:00 PM, Michael Masinter  
> wrote:
> 
> What plausible reading of religious freedom empowers Ms. Davis to prohibit 
> her deputies from issuing marriage licenses because of her religious 
> objections to same sex marriage?

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

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

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







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Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

I think Eugene’s careful dissecting out the EP aspect is misguided, especially 
after Olbergefell’s careful consideration of both EP and SDP in this sort of 
same-sex marriage context.

I agree that the denial of the right to marry is sufficient to support the 
injunction — Davis is denying that right to everyone; it is a fundamental 
constitutional right (though not enumerated, of course); and whatever standard 
of review one applies, if one needs to apply one at all (it seems to be a 
simple per se violation here) it is hard for Davis to come up with a reason 
that justifies her action of denying all marriage licenses — except one and 
only one justification.  And that justification is where the EP comes in and 
the animus matters.  She is acting as she is only because she refuses to be 
complicit with sin — refuses to issue marriage licenses to same sex couples.  
That is an EP violation in substance and makes this an animus case.  The means 
of her refusing to do so is to not do her job with respect to marriage licenses 
at all.  That is a means to discriminate, the means to accomplish her intent or 
purpose to discriminate.

The only way RFRA applies is if the EP aspect is recognized.  RFRA does not 
support her refusal to issue licenses to opposite sex couples because she is 
willing to do that, except that that woiuld force her to do the same for 
same-sex couples. And again back to separating out purpose from means of 
carrying out that purpose.  The RFRA claim is premised on her desire to 
discriminate against same sex couples — again far more of an EP flavor than an 
SDP flavor.  

I think the majority in Olbergefell was correct on recognizing that these two 
rights overlap and interact in this setting.

Steve



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

"The growing good of the world is partly dependent on unhistoric acts; and 
things that are not so ill with you and me as they might have been, is half 
owing to the number who lived faithfully a hidden life, and rest in unvisited 
tombs."
George Eliot, Middlemarch






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

[Steven Jamar]

“Might constitute" religious discrimination?  How would it not?  It would be 
obviousl establishment clause violation.

How is the alcohol not an establishment violation given the intention and 
purpose and motivation of it?


> On Sep 7, 2015, at 1:13 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> 
>1.  If the county clerk refuses to issue restaurant licenses 
> to any restaurant that was not halal, that might constitute discrimination 
> based on the religious practices followed by a restaurant, and would violate 
> the Establishment Clause’s “no religious decisions” principle by requiring a 
> government official to decide what is halal and what is not.
>  
>2.  If the county clerk simply refuses to issue licenses to 
> any establishment that serves alcohol, he might be violating state law, 
> assuming that he has a nondiscretionary duty to issue licenses.  But he isn’t 
> violating the federal constitution, any more than a county clerk who 
> disapproves of alcohol for secular purposes is violating the federal 
> constitution.  What secular people are free to do based on their 
> philosophical judgment, Muslims are free to do based on their religious 
> judgment.
>  
>Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar
> Sent: Monday, September 07, 2015 10:04 AM
> To: Law Religion & Law List
> Subject: Re: What's happening in KY? -- my differences with Eugene
>  
> How about this hypothetical:
> Let's say we elected a very conservative Muslim as a county clerk.  Assume 
> the county clerk is the only one who issues licenses for restaurants and 
> issues liquor licenses.  Assume this clerk refused to issue restaurant 
> licenses to any restaurant that was not halal or or to any establishment that 
> served alcohol. Non-halal restaurants are legal as is serving alcohol in the 
> state.   
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> <mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> <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.

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

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

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

[Steven Jamar]

What is “bigotry.”  Do you judge it from the target or do you judge it from the 
point of view of the accused person?  Is there an external standard or is it 
purely subjective?  Is this a sensible statement:  “Davis’s actions are bigoted 
under the law of the land though she herself is not a bigot?”  I don’t think 
so.  At some point it is about actions, and philosophical groundings of 
intentions.  Note that in Davis’s case, it is anot a situation of unintended 
consequences.  The actions align perfectly with her intention.

So again, is it bigot is as bigot does, or is it subjective rationalization?  

FWIW, I think the motivations of a person, and the grounding of those 
motivations do matter even though the effect is identical. But they matter far 
more in a moral sense than in a legal sense.

Davis is demanding that her beliefs be respected and that she be allowed to act 
in accordance with them (that was, of course not what Reynolds said), but she 
is disrespecting both the beliefs of others and the law of the land.  And she 
is a government official.  The two claims are not equivalent.

Steve Jamar


> On Sep 7, 2015, at 8:31 AM, Kwall, Roberta <rkw...@depaul.edu> wrote:
> 
> I don't know how many folks on this list have actually taught Obergefell yet 
> given that it is so early in the semester but having done so just last week, 
> I wanted to share my experience doing so.   
> 
> I was a bit surprised that one student strongly articulated the view that 
> Davis is operating out of bigotry. This required me to think--very 
> quickly--of how to respond.  Instinctively, I redirected the conversation by 
> 1) pushing back on the bigotry issue by articulating why she would feel as 
> she does from a theological standpoint, assuming good faith and 2) refocusing 
> the attention on the legal aspects of the case (by emphasizing many of the 
> points folks on this list have made over the past several days). Given that I 
> typically do not teach topics that are polarizing in this way, this was a 
> pretty new experience for me (even though I am a veteran teacher!). 
> 
> After class, a student (who happens to be African American) emailed me saying 
> she doesn't agree with same-sex marriage and she has learned to refrain from 
> articulating her views given the negative reactions she has received in the 
> past from others. She said she also felt somewhat uncomfortable.  I invited 
> her to come speak with me (which she will do tomorrow). My point here is that 
> apart from the constitutional nuances of all of these fascinating 
> discussions, as teachers we have the real world challenge of dealing with 
> student bias (one way or the other) in the classroom.  I am curious how 
> others have handled such situations.
> 
> One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
> yesterday is essentially all about how bias of one sort of another works its 
> way into the law (specifically there, Jewish law).  Throughout this 
> discussion, I have been pondering whether a Kim Davis type situation would 
> arise with an observant Jew in her situation.  I think it would be very 
> different because according to Jewish law there is a principle stating "the 
> law of the land is the law."  In other words, if Kim Davis was an observant 
> Jew, I think she would have a far less strong free exercise argument 
> (although there may be some observant Jews who might disagree with that).  In 
> fact, many observant (even Orthodox) Jews draw a distinction concerning 
> same-sex marriage when it comes to secular vs. Jewish marriage (although 
> again, there is a range on this point as well).  On a related point, Michael 
> Helfand just published a very interesting piece in Mosaic Magazine which 
> discusses RFRA and some of the issues related to these posts.
> 
> 
> 
> Roberta Rosenthal Kwall
> Raymond P. Niro Professor 
> Founding Director, DePaul University College of Law
> Center for Intellectual Property Law & Information Technology
>  
> Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
> http://amzn.to/15f7bLH <http://amzn.to/15f7bLH>
>  
>  You can view my papers on the Social Science Research Network (SSRN) at the 
> following
> URL:  http://ssrn.com/author=345249 <http://ssrn.com/author=345249>
>  
> 
> From: religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu> 
> [religionlaw-boun...@lists.ucla.edu 
> <mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Levinson, Sanford V 
> [slevin...@law.utexas.edu <mailto:slevin...@law.utexas.edu>]
> Sent: Sunday, September 06, 2015 3:36 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: What's happening in KY? -- my difference

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

[Steven Jamar]

er a Kim Davis type 
>>> situation would arise with an observant Jew in her situation.  I think it 
>>> would be very different because according to Jewish law there is a 
>>> principle stating "the law of the land is the law."  In other words, if Kim 
>>> Davis was an observant Jew, I think she would have a far less strong free 
>>> exercise argument (although there may be some observant Jews who might 
>>> disagree with that).  In fact, many observant (even Orthodox) Jews draw a 
>>> distinction concerning same-sex marriage when it comes to secular vs. 
>>> Jewish marriage (although again, there is a range on this point as well).  
>>> On a related point, Michael Helfand just published a very interesting piece 
>>> in Mosaic Magazine which discusses RFRA and some of the issues related to 
>>> these posts.
>>> 
>>> 
>>> 
>>> Roberta Rosenthal Kwall
>>> Raymond P. Niro Professor 
>>> Founding Director, DePaul University College of Law
>>> Center for Intellectual Property Law & Information Technology
>>>  
>>> Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
>>> http://amzn.to/15f7bLH <http://amzn.to/15f7bLH>
>>>  
>>>  You can view my papers on the Social Science Research Network (SSRN) at 
>>> the following
>>> URL:  http://ssrn.com/author=345249 <http://ssrn.com/author=345249>
>>>  
>>> 
>>> From: religionlaw-boun...@lists.ucla.edu 
>>> <mailto:religionlaw-boun...@lists.ucla.edu> 
>>> [religionlaw-boun...@lists.ucla.edu 
>>> <mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Levinson, Sanford 
>>> V [slevin...@law.utexas.edu <mailto:slevin...@law.utexas.edu>]
>>> Sent: Sunday, September 06, 2015 3:36 PM
>>> To: Law & Religion issues for Law Academics
>>> Subject: Re: What's happening in KY? -- my differences with Eugene
>>> 
>>> I think Steve gets it exactly right. 
>>> 
>>> 
>>> 
>>> Sent from my iPhone
>>> 
>>> On Sep 6, 2015, at 12:42 PM, Steven Jamar <stevenja...@gmail.com 
>>> <mailto:stevenja...@gmail.com>> wrote:
>>> 
>>>> I don’t know that anyone can really know the extent of their biases 
>>>> influencing their thinking.  Deep things like being a trained historian 
>>>> vs. an engineer can infect how we view the law.  Life experiences — poor 
>>>> or rich, elite or marginal, black, white or other, etc. surely impact how 
>>>> we view things.
>>>> 
>>>> But on this one, I am in favor of reasonable accommodations that favor 
>>>> religious exercise.  I’m even in favor of finding an accommodation for Ms. 
>>>> Davis.  But the propriety of finding/making an accommodation does not 
>>>> excuse her flouting of clear constitutional requirements.  If she plays 
>>>> MLK Jr or Gandhi and says “I will not follow your unjust law but I 
>>>> recognize your right to jail me for failing to follow it” — well that 
>>>> would be one thing.  But she is not.  She is claiming to above the law, 
>>>> not merely that she is acting according to the dictates of her conscience 
>>>> or her religion — but that this higher law excuses her refusal to do her 
>>>> job.  It does not.
>>>> 
>>>> She is taking a stand and witnesses for her beliefs by becoming a martyr 
>>>> for her cause.  But she is not a private citizen in a private job.  She is 
>>>> an elected official elected to do a ministerial job.  She is not rendering 
>>>> unto Ceasar that which is his.  She is denying the validity of Ceasar’s 
>>>> power.  She is not walking the extra mile, shouldering the Centurian’s 
>>>> burden; she is dropping the load on the road and demanding to be applauded 
>>>> for it.  She is placing her personal religious beliefs above the 
>>>> requirements of We the People acting through our Supreme Court and federal 
>>>> government.
>>>> 
>>>> Disliking that is not a matter of political stance on same sex marriage or 
>>>> the morality of homosexuals.
>>>> 
>>>> One can claim as the dissenters in Obergefell did and still do with 
>>>> respect to abortion rights that the court got it wrong.  But even so that 
>>>> does not give one the right to play President Jackson and send thousands 
>>>> to their death along the trail of tears.  The mag

Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Thank you for posting the extended exerpt, Eugene.

I disagree with you on one point in particular — if the state has chosen to use 
counties, then it has chosen to use counties, not regional offices.  It could 
choose to use another method — regional offices — and the district court did 
not address that issue because it was properly considering the law as it is and 
has been for a long time not making the broad statement you ascribe to it

Steve Jamar

> On Sep 6, 2015, at 4:59 PM, Volokh, Eugene  wrote:
> 
>   
> Davis finally suggests that Plaintiffs will have other avenues for obtaining 
> marriage licenses in the future. For example, county clerks have urged 
> Governor Beshear to create an online marriage licensing system, which would 
> be managed by the State of Kentucky. While these options may be available 
> someday, they are not feasible alternatives at present. Thus, they have no 
> impact on the Court's “substantial interference” analysis.
> Having considered Davis' arguments in depth, the Court finds that Plaintiffs 
> have one feasible avenue for obtaining their marriage licenses-they must go 
> to another county. Davis makes much of the fact that Plaintiffs are able to 
> travel, but she fails to address the one question that lingers in the Court's 
> mind. Even if Plaintiffs are able to obtain licenses elsewhere, why should 
> they be required to? The state has long entrusted county clerks with the task 
> of issuing marriage licenses. It does not seem unreasonable for Plaintiffs, 
> as Rowan County voters, to expect their elected official to perform her 
> statutorily assigned duties. And yet, that is precisely what Davis is 
> refusing to do. Much like the statutes at issue in Loving and Zablocki, 
> Davis' “no marriage licenses” policy significantly discourages many Rowan 
> County residents from exercising their right to marry and effectively 
> disqualifies others from doing so. The Court must subject this policy apply 
> heightened scrutiny.
>  
> This might be mistaken:  It’s not obvious to me that it’s a violation of the 
> federal Constitution to issue licenses only in some counties and not others – 
> for instance, if Kentucky deliberately chose to issue licenses not on a 
> county-by-county level, but on a region-by-region level, with licenses 
> available only in one place in a multi-county region, it’s hard for me to see 
> that this would be a Due Process Clause violation.  On the other hand, 
> perhaps that would be seen as a burden but a constitutionally permissible 
> one, motivated by some state interest such as efficiency; perhaps in the 
> absence of a state interest supporting the exclusion, this would be an 
> arbitrary and thus unjustified burden on the right to marry.  Compare, though 
> recognizing that there are considerable differences, Schad v. Borough of Mt. 
> Ephraim, a First Amendment case rejecting a “you can go to a neighboring 
> town” argument in support of a ban on live entertainment, and Ezell v. City 
> of Chicago (7th Cir.), a Second Amendment case rejecting such an argument in 
> support of a ban on gun ranges.  But in any event, there was indeed a finding 
> by the federal court of a right-to-marry violation.
>  
>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.


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

"Any intelligent fool can make things bigger, more complex, and more violent.  
It takes a touch of genius - and a lot of courage - to move in the opposite 
direction."

Albert Einstein




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Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Mark and I disagree about the nature of animus and bias in the violation of 
constitutional rights.  I think the source of her bias is not relevant to the 
14th Amendment analysis; he thinks it is.  She is treating all couples the same 
only because she thinks that insulates her from liability under the 14th 
Amendment EP clause.  Mark agrees that it does; on these facts where the action 
was taken because of a bias against one group, I don’t think it does.

I understand Mark’s position; I just think it is wrong as he thinks mine is 
wrong.

Steve

> On Sep 6, 2015, at 7:54 PM, Scarberry, Mark  
> wrote:
> 
> A final brief point in response to Steve. Davis is treating all couples the 
> same. This is not like Cleburn. The question is whether her treatment of them 
> all the same way is somehow a violation of equal protection. It is not at all 
> clear that it is a violation.
>  
> Note also that Davis is not claiming that the state has a right to 
> discriminate. She is claiming that she, as a person protected by the KY RFRA, 
> has a religious liberty right not to violate her religious conscience. That 
> is a legitimate interest that is recognized by KY (and also recognized, even 
> after Boerne, as a legitimate interest with respect to federal law, though I 
> make that point only to indicate the legitimacy of the interest, not to 
> suggest that the federal RFRA applies here). She is willing to allow same-sex 
> marriage licenses to be issued, if I understand her position correctly, if 
> that is done without her stamp of approval (her specific authorization) and 
> if it is done in a way that ensures that the licenses are valid under state 
> law (which is quite reasonably interpreted to require her authorization as 
> county clerk for licenses issued in her county). That is not animus. She 
> appears to be acting on a sincerely held good-faith religious belief (if the 
> majority opinion in Obergefell is to be taken seriously) and attempting to 
> avoid violation of her conscience. 
>  
> Mark
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Scarberry, Mark
> Sent: Sunday, September 06, 2015 4:32 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: What's happening in KY? -- wrong case, wrong parties
>  
> In response to Eugene:
>  
> As I’ve said, it’s certainly true that the KY RFRA cannot affect 
> determinations of US Constitutional law. And because the district court did 
> decide against her on the US constitutional right-to-marry issue and did 
> issue an injunction, she is obligated to obey the injunction until and unless 
> it is reversed, on pain of being held in contempt. (Indeed, even if the 
> district court erroneously ordered her to authorize licenses on the ground 
> that KY law requires her to do so, she would have the same obligation to obey 
> the injunction. It probably would not have only a frivolous pretense of 
> validity, per the Walker v. Birmingham analysis.)
>  
> If it is reversed, then civil contempt sanctions will be eliminated to the 
> extent possible. Of course we don’t have a time machine so that her time in 
> jail for civil contempt could be undone, but she could not be held liable for 
> civil contempt conditional fines that had been imposed. 
>  
> As we all know, she could still be held liable for criminal contempt even if 
> the district court is reversed. Walker v. Birmingham. A list member noted 
> that no one wanted to go there because it would make her more of a martyr. In 
> any event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
> criminal contempt. The US Attorney can do so, and I believe the district 
> court might appoint a disinterested person to deal with the matter. The 
> plaintiffs cannot prosecute a criminal contempt – the Supreme Court held that 
> very clearly, I believe in the Vuitton case. 
>  
> So, indeed, in order not to commit a crime, she must either obey the 
> injunction or resign. That is independent of the merits. My points dealt with 
> the merits, and with whether the federal court should interpret and enforce 
> Kentucky law in a case in which there is no diversity jurisdiction. I don’t 
> see how the federal court can find that Kentucky had a compelling interest in 
> requiring marriage licenses to be available in every county; is that a call 
> for a federal court to make, even if otherwise possible? Or that the 
> legislature had no alternative means of advancing such an interest, if 
> compelling, without burdening Davis’s religious exercise (or more 
> appropriately her religious conscience). There obviously are alternative 
> means -- if that is the compelling interest -- and under the Kentucky RFRA 
> the legislature bound itself to use them rather than burdening Davis’s 
> religious exercise. 
>  
> If I were 

Re: What's happening in KY? -- wrong case, wrong parties

[Steven Jamar]

Mark, are you claiming that her religious-based bias against same sex couples 
is ok under the 14th Amendment? This sort of bias has been repeatedly declared 
unconstitutional by the Supreme Court as inherently unreasonable.  Again, see 
Cleburne.

If her original position had been as nuanced as you are now arguing, she might 
have a possible legitimate argument along the lines you are making.  But how 
can after-the-fact rationalizations be allowed?  Again, those have been 
explicitly rejected by the court.  Mississippi University v. Hogan says that 
explicitly.

Are you saying that an elected county clerk gets to decide what Kentucky law is 
and that that is not reviewable by the federal court under the 14th Amendment?  
In the absence of a definitive ruling by a state court it seems that there are 
two avenues open to the court — interpret the law or send a question to the 
state supreme court to get an interpretation.  I don’t think the latter is ever 
compelled.  At least when I was in practice federal courts in diversity cases 
regularly interpreted state law — taking into account state court 
interpretations and treating them as  controlling when they were on the same 
issue — but a lot of times there were not such rulings on the same issue as in 
federal court.

If the state of Kentucky does not like the interpretation of its laws by the 
federal court, it can amend its laws to make them more clear and certain on 
that point.  That does not mean the federal court had no power to interpret the 
state law in the first place.

The state has not put in place the accommodation Mark is positing might be 
constitutional.  It seems to me to be far more intrusive for the federal court 
to make up such rules excusing a county clerk from performing a clearly 
mandated statutory duty than just applying the law as it is.

And if it is going down Mark’s road, which I have no particular objection to, 
then it is still intepreting Kentucky law — but has no obligation to defer to a 
county clerk’s intepretation of that law and can intepret Kentucky’s RFRA 
directly itself.

All of this assumes, of course, that somehow the animus and religious-based 
bias is excused and gets treated differently than such bias-motivated conduct 
has been treated in the past in a 14th amendment denial of rights claim.

Steve Jamar


> On Sep 6, 2015, at 4:16 PM, Scarberry, Mark  
> wrote:
> 
> I don't quite understand why she needs to affirmatively seek relief under the 
> Kentucky RFRA. It's part of Kentucky law. The state legislature didn't 
> exclude this law from the reach of the state RFRA. If the Kentucky statute -- 
> that would otherwise require her to authorize the issuance of licenses -- 
> substantially burdens her religious exercise, and if the legislature has an 
> alternative means of advancing an interest that it may or may not consider 
> compelling, then she need not comply with it. As a state official, I think 
> she has the right in the first instance to decide what Kentucky law requires. 
> She also has the right (and obligation) to take into account the concern that 
> if she doesn't authorize issuance of the licenses, then they may not be 
> valid; that could be a basis for instructing deputies not to issue them. If 
> someone in the Kentucky government with authority over her requires her to 
> authorize the issuance of licenses do so, then she would interpose the state 
> RFRA, and a Kentucky court would decide who is right as a matter of Kentucky 
> law. Or a Kentucky court might determine that licenses issued by deputies 
> without her authorization are valid under Kentucky law.
> 
> Of course the Kentucky RFRA can't override the 14th Amendment, but that may 
> miss much of the point.
> 
> What business does a federal court have in telling her that Kentucky law 
> requires her to authorize issuance of licenses, or in enforcing against her 
> Kentucky law, or in saying that licenses signed by deputies are valid under 
> Kentucky law despite her refusal to authorize issuance?
> 
> The only real questions for the federal court should be whether her 
> even-handed refusal to authorize issuance of any licenses violates the 14th 
> Amendment's equal protection clause and whether her refusal impermissibly 
> burdens the right of all couples to marry (when they can get licenses from 
> other counties by driving an hour). Perhaps if one of those issues is decided 
> against her, then the federal court could exercise jurisdiction to decide the 
> state law issue, but otherwise it seems to me that the federal court should 
> leave the issues to state officials and state courts.
> 
> If I were her, I would issue the licenses. Nevertheless, on both of those 
> constitutional issues I think she has the better argument. 
> 
> As for Steve's claim that her refusal can only be based on animus (and his 
> rather outrageous invocation of the trail of tears, which was the path of 
> some of my 

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

[Steven Jamar]

Even if she is acting in accordance with her understanding of state law, she 
cannot violate the federal constitution in doing so, and any state law that is 
violation of the federal constitution is not, well, constitutional.

State RFRA cannot override the United States Constitution. Period.  Full stop.  
Even if the state were to grant her an accommodation for her religious views in 
relieving her of otherwise performing her job, the state (and its agents like 
county clerks) cannot do so in violation of the federal constitution.  

Thus the law, if it indeed requires a county clerk to include an authorization 
statement in her name, and she refuses to issue it to a same-sex couple, she is 
not performing her duty and she is violating the federal constitution.

The state law makes no accommodation for her that does not violate the federal 
constitution.  

This is (still) an easy case.

Could the state change the law to accommodate her religious objections?  I 
think so, but the matter is not fully free from doubt since the same sex couple 
would be treated differently from opposite sex couples in terms of the form of 
the permission obtained.  Could the state change the whole process so it just 
comes out of the clerks office and not from a particular person for everyone in 
the state and that any elected county clerk or appointed deputy could sign it?  
Surely.

But as it stands, she is simply in violation of federal law. 

How is it that federal RFRA would apply to the courts?  Surely it applies to 
congressional legislation, administrative ageny regulations and the 
administration of the law by the executive branch generally.  But does it apply 
to ordinary court actions?  If it did so, wouldn’t we end up in Escher-like 
legal universe?  The courts are to apply the constitution.  The Constitution is 
the supreme law.  The constitution is to be used to determine whether someone’s 
constitutional rights have been violated.  But now a statute can affect the 
very meaning of those rights?  How can that be?  This is a straight application 
of the constitutional right, not mediated by any statute — and no statute can 
mediate it.  Congress cannot write a law that says:  "when the court applies 
the freedom of exercise clause, or the equal protection clause, or the due 
process clause, it must do it this way.”  It can say that when a statute or 
regulation is being applied, take into account RFRA.  But RFRA cannot constrain 
EP or DP in that same way.

So it still seems a very simple case to me as a constitutional law matter.

What remedies are available to the State of Kentucky?  Different question.

A final point.  She simply cannot say “by issuing no  licenses I’m now 
complying with the constitution” when her motive, intent, in doing so is to 
deny rights to same sex couples.  The evidence of motivation here is 
unequivocal.  And state law does not give her the option to not do her job at 
all.  Or at least no one has pointed to a state court decision or 
interpretation of RFRA that would allow her to avoid doing her job.

And so we come to the power of the federal court to order her to issue licenses 
in accordance with the federal constitution.  She has an obvious statutory duty 
to do that function.  She is refusing to do so in violation of the federal 
constittution.  Simple case.

10 of 10 for cleverness on the state RFRA theory, but it just can’t work here 
in federal court in this posture, can it.

Steve Jamar 

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

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




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Re: Kay Davis and Title VII

[Steven Jamar]

I still dislike Smith.  I think the ability of the court to allow play in the 
joints under Sherbert/Yoder was superior to both Smith and RFRA especially 
given how the court applied RFRA in Hobby Lobby.  If the choice is between 
Hobby Lobby and any claim of complicity being treated as cognizable as a 
substantial burden and the state-can-do-no-wrong of Smith, I would at this 
point choose Smith.

Smith would still allow legislative efforts to accommodate religion — but those 
were already allowed under the Sherbert/Yoder regime, so that feature still 
existed — and is being done in states.

The all-or-nothing approach exemplified in Hobby Lobby is the greater problem.

Steve


> On Sep 5, 2015, at 6:09 PM, Alan Reinach  
> wrote:
> 
>  I remember when the list started up in the mid-1990s, and I was one of 
> the very few people who supported Smith.  (I still do, though I also support 
> jurisdiction-by-jurisdiction RFRAs.)  Virtually everyone else, as I recall, 
> thought Smith was badly wrong, and the Sherbert/Yoder regime was sound.  Am I 
> right in thinking that things have changed, and that Justice Scalia?s 
> opinion, once so roundly criticized and even reviled, is now much more 
> popular, not just as an interpretation of the Free Exercise Clause but as 
> counsel against having RFRAs (or against granting exemptions under RFRAs)?
> 
> Eugene


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

"I do not at all resent criticism, even when, for the sake of emphasis, it for 
a time parts company with reality."

Winston Churchill, speech to the House of Commons, 1941




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

[Steven Jamar]

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

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

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

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

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

Steve Jamar


> On Sep 6, 2015, at 10:57 AM, Levinson, Sanford V  
> wrote:
> 
> I do find myself wondering how much the reaction to Ms. Davis is simply a 
> proxy for our politics. Consider, eg, the efforts by some of the conservative 
> pols who support Ms. Davis (like Ted Cruz) to go after "sanctuary cities). I 
> suspect that many of us support such sanctuaries against our Draconian 
> immigration policies, and one might recall that the leader of an earlier 
> sanctuary movement was Los Angeles' Cardinal McIntyre. As someone who has 
> long criticized extravagant theories of judicial supremacy and still (weakly) 
> supports RFRA, I do find it challenging to figure out exactly why I'm so 
> hostile to Ms. Davis. Part of it, of course, is my own support for same-sex 
> marriage and Obergefell. But another, I'm afraid is my animus against the 
> absurdity of her claim. I know I shouldn't take that into account, but I 
> can't help it. Catholic arguments are deeply reason-oriented, and I can 
> disagree with them, as I do on same-sex marriage, on the basis of what I'd 
> like to think are equally reasoned arguments. Ms. 
> Davis takes us out of the realm of reason into sheer subjective "sincerity."  
> Tertullian is famous for defending Christian belief precisely because it was 
> "absurd."  As Eugene reminded us, one can easily say the same thing about the 
> purported revelation at Sinai. 
> 
> I apologize if this is too rambling. Some of you might be interested in a 
> recent symposium on Balkinization on Roberta Kwall's The Myth of the Cultural 
> Jew. 
> 
> Sandy
> 
> Sent from my iPhone
> 
> On Sep 6, 2015, at 12:11 AM, Scarberry, Mark  > wrote:
> 
>> Section 402.100 appears to require that the license include “[a]n 
>> authorization statement of the county clerk issuing the license.” The 
>> section allows the license to be signed by the clerk or deputy clerk (which 
>> shows that the legislature knew how to include the deputies where it wanted 
>> to include them) but the authorization statement authorizing the appropriate 
>> celebrants to perform the marriage and unite the couple in marriage  must be 
>> a statement of the county clerk. The county clerk must authorize the uniting 
>> of the couple in marriage. Here is the relevant language:
>>  
>> “Each county clerk shall use the form prescribed by the Department for 
>> Libraries and Archives when issuing a marriage license. This form shall 
>> provide for the entering of all of the information required in this section, 
>> and may also provide for the entering of additional information prescribed 
>> by the Department for Libraries and Archives. The form shall consist of:
>>  
>> (1) A marriage license which provides for the entering of:
>>   (a) An authorization statement of the county clerk issuing the license for 
>> any person or religious society authorized to perform marriage 

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

[Steven Jamar]

She is motivated by prejudice against same sex couples. Her motivation for that 
is not relevant under what I thought to be well settled and noncontroversial 
equal protection jurisprudence. She has no rational reason to treat same sex 
couples differently from opposite sex couples under the law. Obergefell says 
such differing treatment is not rational. 
How can a state RFRA undo this constitutional norm and obligation? 
The federal RFRA does not apply (Boerne).  So how does the issue of substantial 
burden even arise? (Smith)
The claim is not title VII, it is the 14th amendment directly. If smith and 
Reynolds stand for anything anymore it is that the religious base unit veto 
does not work.

Sent from Steve's iPhone 


> On Sep 5, 2015, at 9:27 PM, Scarberry, Mark  
> wrote:
> 
> I think Howard’s point cuts the other way, as I’ll note in a moment.
>  
> A few quick thoughts:
>  
> It seems at the very least odd to me that a federal judge would decide what 
> Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. 
> If Kentucky thinks that having every clerk in every county issue marriage 
> licenses is a compelling interest, perhaps we might let the state take 
> action, rather than having a federal judge do so.
>  
> It also seems odd to me that a federal judge would decide that state law 
> requires a state official to take an action. So far, it’s hard to see the 
> federal question that would justify the federal judge in deciding these state 
> law issues as a matter of pendent (or ancillary, I can’t keep them straight) 
> jurisdiction. Indeed, to decide what state law requires Davis to do requires 
> an application of Kentucky’s RFRA, which in turn, as noted above, requires a 
> federal judge to determine what the state of Kentucky considers to be a 
> compelling interest (and what, as a matter of Kentucky law, may be an 
> appropriate alternative means of advancing any such interest).
>  
> At least one list member seems to argue that the Kentucky RFRA doesn’t 
> protect Davis, with regard to her obligations under state law, because the 
> state legislature would have to act in order to provide an alternative means 
> for the state to advance its compelling interest. Set aside for a moment how 
> to define that interest and whether it is compelling. By enacting its RFRA, 
> the Kentucky legislature bound itself not to substantially burden a person’s 
> religious exercise by way of its legislation, if the legislature has, but 
> chooses not to implement, an alternative way of advancing interests it deems 
> compelling. The Kentucky legislature has put the burden on itself: it can act 
> to implement an alternative means, or it can act to exempt the particular 
> state obligation from the reach of the Kentucky RFRA. If it chooses to do 
> neither, then it has chosen not to burden the person’s religious exercise. 
> That is not a bug; it is a feature of a state RFRA, and an intended feature.
>  
> It appears to me – as I think Howard’s point suggests – that Kentucky law 
> requires or at least may well require that Davis’s name be on the license, 
> and that the license be issued pursuant to Davis’s authority as clerk. The 
> deputy clerk can’t, if I understand Howard’s point correctly, issue a license 
> in any other way. The issuance of the license under Davis’s authority with 
> her name on it would appear to create a relatively close relationship between 
> Davis and the wedding that she, in order to be true to her sincere religious 
> beliefs, cannot facilitate (let alone be responsible for the authorizing of 
> the wedding). Again, what is the federal judge’s role in determining the 
> meaning of state statutes?
>  
> Davis has a duty under Kentucky law – she can certainly say she has a duty, 
> it seems plain that she does, and it would seem strange for a federal judge 
> to hold otherwise – to make sure that licenses issued through her office be 
> valid licenses under Kentucky law. If she believes that an altered form of 
> license is not valid, she has every reason to prohibit a deputy clerk from 
> issuing such a license.
>  
> That brings us back them to whether she is entitled to an exemption under the 
> KY RFRA from her statutory duty to issue licenses. If so, then her actions 
> make perfect sense.
>  
> Then the remaining question is whether she is obligated under the US 
> Constitution to issue licenses. I don’t think the swimming pool closure cases 
> clearly lead to the conclusion that she has an obligation to issue licenses, 
> though I need to go back and review them; I disagree with Steve on that point 
> if I understand him correctly. Assuming her treatment of all couples the same 
> is not unconstitutional discrimination against same-sex couples, then the 
> issue would be whether it is an unconstitutional burden on the right to marry 
> for a state to ask couples to drive an hour to another office to get a 
> license. That 

Re: Final Regs on matters including Contraceptive (or per some claimants abortifacient) Mandate

[Steven Jamar]

And so back to attenuation, proximate cause (remember Palsgraf?), and 
complicity with evil and metaphysical triggers like telling someone that you 
want to opt out being equated to being forced to physically distribute 
contraceptives. 

No sale.

Steve

 On Jul 10, 2015, at 5:07 PM, Michael Worley mwor...@byulaw.net wrote:
 
 If the entire function of the opt out notice is merely to provide HHS 
 notice, surely the Gov't has already received ample notice from all parties 
 that object, since they are in litigation with them.
 
 Instead of being merely being a notice issue, the form is, so far as I can 
 tell, essential for providing contraception. This is what I meant by a 
 trigger.
 
 As the rules state:
 The content required for the notice represents the minimum information 
 necessary for the Departments . . . to administer the accommodation.
 
 Contraception does not flow to employees of religious objectors without the 
 form. Plain and simple.  
 
 Marty claims the reg is the trigger.  If he is asserting that, absent any 
 action by the employer, contraception will flow, and if that is correct, I am 
 sorry I misunderstood the facts.  However, I think my calling the form a 
 trigger is more than fair, as it is my understanding that the form is 
 essential for providing contraception.
 
 On Fri, Jul 10, 2015 at 2:51 PM, Marty Lederman lederman.ma...@gmail.com 
 mailto:lederman.ma...@gmail.com wrote:
 It's probably not wise even to engage with Michael Worley on this, in light 
 of how patently inappropriate and misleading the forcing the nuns to 
 distribute statement is.  And even if the facts were anything like what 
 Michael describes, I don't think that many, if any, readers would understand 
 the government's reg as an effort to force nuns to distribute contraceptives.
 
 But just to be clear on the facts:  An objecting employer is not required to 
 sign anything.  It is required merely to provide HHS notice that it wishes 
 to opt out.  Moreover, that notice does not trigger the provision of 
 coverage to the employees.  The coverage is triggered, and cost-free access 
 will be provided to the women in question, by virtue of the HHS reg.  Filing 
 the notification of objection merely guarantees that the employer will have 
 nothing to do with that access.  Where I'm from, that's not quite the same 
 thing as being forced to distribute contraceptives, but YMMV.
 
 On Fri, Jul 10, 2015 at 4:30 PM, Michael Worley mwor...@byulaw.net 
 mailto:mwor...@byulaw.net wrote:
 Marty claims this statement is absurd:
 
 the government still won’t give up on its quest to force nuns and other 
 religious employers to distribute contraceptives.
 
 I assume Marty thinks the statement is absurd because the only action the 
 state is asking the nuns, etc. to take is signing a form. However, as long as 
 signing the form is the trigger for coverage being provided, they are acting 
 to distribute contraceptives.
 
 Signing a document can have deep moral implications in other contexts. 
 Suppose a state cannot execute someone without a signature from the governor. 
 No matter what the content of the form the governor has to sign is (it could 
 say I want to cut taxes by 5% or even I think the death penalty is wrong 
 and should be illegal), as long as signing it triggers the execution, people 
 who oppose the death penalty will urge him not to sign.  In fact, they will 
 say he will be killing someone by signing the form.
 
 So it is here. Signing the form is the trigger for the contraceptive 
 coverage. Thus, religious individuals won't sign as long as the form acts as 
 a trigger. 
 
 The issue is being a trigger, not the government policy. The government is 
 free to provide contraception to all; what Becket is concerned about is 
 making an action by a religious individual a essential element to providing 
 that contraception.
 
 
 On Fri, Jul 10, 2015 at 2:14 PM, Marty Lederman lederman.ma...@gmail.com 
 mailto:lederman.ma...@gmail.com wrote:
 I have great admiration for the Becket Fund and its attorneys, 
 notwithstanding our substantive differences.  But the Fund is not doing 
 itself any favors by promulgating absurd statements such as:
 
 “Just last week the Supreme Court ordered HHS not to enforce the exact rules 
 they finalized today.
 
 and
 
 the government still won’t give up on its quest to force nuns and other 
 religious employers to distribute contraceptives.
 
 On Fri, Jul 10, 2015 at 3:52 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu mailto:mark.scarbe...@pepperdine.edu wrote:
 Here are the final regs:
 
 https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-17076.pdf 
 https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-17076.pdf
  (via 
 https://www.yahoo.com/health/breaking-birth-control-coverage-guaranteed-for-123731031997.html
  
 https://www.yahoo.com/health/breaking-birth-control-coverage-guaranteed-for-123731031997.html).
 
 The Becket Fund criticizes 

Re: law suit on behalf of Jesus

[Steven Jamar]

Everyone knows that God’s domicile for jurisdictional purpose is Minnesota, 
aka, God’s country.

Steve

 On May 6, 2015, at 9:25 AM, Jeremy Mallory jeremy.mall...@gmail.com wrote:
 
 Hmm. I wonder if this means that God is now subject to personal jurisdiction 
 in Nebraska. Ernest Chambers will be happy to hear that.
 
 Jeremy
 
  Conkle, Daniel O. mailto:con...@indiana.edu   May 6, 2015 at 9:01 AM
 Cf. United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 
 (W.D.Pa. 1971) - dismissed on procedural grounds, with court citing personal 
 jurisdiction and service of process difficulties.  
  
 Dan Conkle 
  
 Daniel O. Conkle 
 Robert H. McKinney Professor of Law 
 Indiana University Maurer School of Law 
 Bloomington, Indiana  47405 
 (812) 855-4331 
 fax (812) 855-0555 
 e-mail con...@indiana.edu mailto:con...@indiana.edu 
 
  
  
  
 From: religionlaw-boun...@lists.ucla.edu 
 mailto:religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu 
 mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
 Sent: Wednesday, May 06, 2015 5:55 AM
 To: Law  Religion issues for Law Academics
 Subject: Re: law suit on behalf of Jesus
  
 ___
 To post, send message to Religionlaw@lists.ucla.edu 
 mailto:Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see 
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
 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.
  Len mailto:campquest...@comcast.net   May 6, 2015 at 5:55 AM
 Please pardon the intrusion.  Apparently the filing is real:
 
 http://dockets.justia.com/docket/nebraska/nedce/8:2015cv00158/69317 
 http://dockets.justia.com/docket/nebraska/nedce/8:2015cv00158/69317
 
 I hope Judge Gerrard isn't too hard on her when he tosses it.
 
 
 
 -Leonard A. Zanger
 
 From: Paul Finkelman paul.finkel...@albanylaw.edu 
 mailto:paul.finkel...@albanylaw.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
 mailto:religionlaw@lists.ucla.edu
 Sent: Wednesday, May 6, 2015 12:11:32 AM
 Subject: law suit on behalf of Jesus
 
 Someone just send me this; it seems like it might be real, but does anyone 
 know?  Can the plaintiff bring the suit on behalf of Jesus or G-d without a 
 power of attorney signed by one or both?
 
 
 http://www.thenewcivilrightsmovement.com/davidbadash/nebraska_woman_sues_all_homosexuals_in_federal_court_because_jesus_literally
  
 http://www.thenewcivilrightsmovement.com/davidbadash/nebraska_woman_sues_all_homosexuals_in_federal_court_because_jesus_literally
 
  
 *
 Paul Finkelman
 Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and
 Scholar-in-Residence 
 National Constitution Center
 Philadelphia, Pennsylvania
  
 518-439-7296 (p)
 518-605-0296 (c)
  
 paul.finkel...@albanylaw.edu mailto:paul.finkel...@albanylaw.edu
 www.paulfinkelman.com http://www.paulfinkelman.com/
 *
 
 
 
 ___
 To post, send message to Religionlaw@lists.ucla.edu 
 mailto:Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see 
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
 
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 private.  Anyone can subscribe to the list and read messages that are 
 posted; people can read the Web archives; and list members can (rightly or 
 wrongly) forward the messages to others.
 
 ___
 To post, send message to Religionlaw@lists.ucla.edu 
 mailto:Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see 
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 Please note that messages sent to this large list cannot be viewed as 
 private. Anyone can subscribe to the list and read messages that are posted; 
 people can read the Web archives; and list members can (rightly or wrongly) 
 forward the messages to others.
  Finkelman, Paul mailto:paul.finkel...@albanylaw.edu   May 6, 2015 at 
 12:11 AM
 Someone just send me this; it seems like it might be real, but does anyone 
 know?  Can the plaintiff bring the suit on behalf of Jesus or G-d without a 
 power of attorney signed by one or both?
 
 
 

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

[Steven Jamar]

There is a serious asymmetry here, it seems to me.  Many expressions of concern 
about the religious being persecuted by the new norm of respect for those with 
same-sex orientation with little recognition of the decades/centuries of those 
self same religious adherents persecuting those with a sexual orientation 
toward the same sex in all walks of life.

It was not long ago that some large religious groups preached segregation.  And 
not all that long ago that some preached the virtues of enslaving the black 
Africans.

It was only as recently as 1967 that interracial marriages could not longer be 
prohibited by states as a matter of equality and liberty.  And as recently as 
1983 that Bob Jones University sought imprimature of the federal government to 
discriminate on the basis of race.  The LDS changed its policy as to racial 
inferiority of Blacks officially only in 1978.

In all of those cases when the civil rights movement for blacks took root, some 
religious adherents claimed their right to be exempt from the civil 
requirements of non-discrimination.  

A similar path can be charted with respect to women — no women priests even 
today and some protestant denominations do not ordain women ministers.  

These religious adherents can continue to discriminate against blacks and women 
and anyone else whom they choose to exclude — including gays and lesbians.  But 
I do not need to endorse the properness of them doing so nor refrain from 
condemning them from doing so.  Nor do I need to stay my hand in legislation or 
other action in seeking to protect the human dignity of everyone — especially 
historically marginalized and excluded groups.

But none of this means that certain limited accommodations should not be made 
for certain religious adherents in certain settings.  And much as I dislike the 
decision in Hobby Lobby and the way RFRA has been, in my judgment, distorted, 
the political processes that give religious-based bigotry a favored position is 
to be respected and observed.

I would not extend those exemptions outside the religious realm personally, but 
I don’t really think much harm comes of them in general — most of the time 
viable options exist and can be made to exist.

The asymmetry of “let me condemn you and exclude you” but “you can’t condemn me 
or exclude me because my beliefs and actions are based on religious beliefs” is 
significant and harmful.  Can a gay business owner exclude someone based on 
that person’s religious beliefs?  No. Because that would be discriminating on 
the basis or religion.  And that is to be forbidden.  But can the religious 
person exclude the gay person?  Yes, because that is based on the religious 
adherent’s religious beliefs and somehow that makes all the difference.

Steve




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

I am in Birmingham because injustice is here. . . . Injustice anywhere is a 
threat to justice everywhere.

Martin Luther King, Jr., (1963)





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

[Steven Jamar]

Is there an IRS provision that would require the loss of tax exempt status as 
in Bob Jones?

 On Apr 29, 2015, at 9:39 PM, Brad Pardee bp51...@windstream.net wrote:
 
 In an article from the Weekly Standard, the question was raised about the 
 implications for religious organizations losing their tax-exempt status if 
 they continue to oppose same-sex marriage.  The article talked about the case 
 of Bob Jones University v. United States (1983), where they lost their 
 tax-exempt status based on their opposition to interracial dating.  Given the 
 number of instances I've seen where parallels are drawn between interracial 
 relationships and same-sex relationships, it seems realistic to ask if 
 religious organizations would be similarly stripped of their tax-exempt 
 status if the Supreme Court finds a constitutional right to same-sex 
 marriage.  The article includes this piece of discussion between Justice 
 Samuel Alito and Solicitor Donald Verrilli Jr.
  
 JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was 
 not entitled to tax-exempt status if it opposed interracial marriage or 
 interracial dating. So would the same apply to a university or a college if 
 it opposed same-sex marriage? 
 GENERAL VERRILLI: You know, I -- I don't think I can answer that question 
 without knowing more specifics, but it's certainly going to be an issue. I -- 
 I don't deny that. I don't deny that, 
 JUSTICE ALITO: It is -- it is going to be an issue.
  
 http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma
  
 http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma
  
 What is the consensus of this list?  Would a ruling in favor of same-sex 
 marriage lead to the same requirement that religious organizations accept 
 same-sex marriage to avoid losing their tax exempt status, or would the 
 religious freedom provisions of the First Amendment prevail here where they 
 did not prevail where Bob Jones University is concerned?
  
 Brad Pardee
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Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis

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

[Steven Jamar]

If I understand the question correctly, the question is whether standards will 
change and whether new demands will be made at some time in the future?  The 
answer is “of course.”  Of course people will agitate for more.  And others 
will ask will ask for more.  Witness the religious claims of some for 
exemptions a la Hobby Lobby — asking for more and more exemptions from general 
laws having nothing to do with religion.  

Could the issue of homosexual discrimination keep having new frontiers, like 
women and race-based exclusions have?  Surely.

So what?


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

Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think.

- Martin Luther King Jr., Strength to Love,” 1963





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Re: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message

[Steven Jamar]

If the state requires you to bake a cake, bake two.

Matthew 5:41

It is verses like this that make it hard for me to credit the complicity with 
evil argument underlying all of these religious objections.  But I know the 
first amendment does not protect actual Christianity because there is no such 
thing — it protects an individual’s particular take on it.  But the first 
amendment freedom of religion, as long ago as Reynolds v. United States, 98 
U.S. 45 (1878) distinguished belief from practice and permitted regulation of 
practice.  Since RFRA was a restoration, the court should not have interpreted 
it as it did in Hobby Lobby.  But that is another story.

Steve



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

“Great people are those who make others feel that they, too, can become great.” 
 
Mark Twain 





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

[Steven Jamar]

The benefits of clarity in regulation are that it obviates the need for 
litigation and it allows for compromise among disparate and often competing 
interests as well as allowing for compromise of competing values.  If a law 
specifically exempts a well-defined business or entity, then the very real 
costs of litigation to enforce rights either by the person excluded or by the 
business seeking to exclude  are avoided.  If a law specifically draws a line 
and includes specific examples or a limited exclusive list, then to that extent 
people can understand and predict results without resorting to expensive 
litigation and broad-brush misinterpretation (willful or otherwise).  A law 
exempting from public accommodation laws cake bakers, 
photographers/videographers, and florists would be clear (in many cases at 
least), but would cut too broadly — allowing race discrimination, gender 
discrimination, religious discrimination, and so on.  If the carve-out were 
only for one type of discrimination — sexual orientation — and only for that 
would the public accommodation law not apply, again one might have relative 
clarity and compromise, but, of course, at a social justice cost for some but 
with some accommodation of some who wish to discriminate on that basis.

Enter religious freedom acts (nothing restorative about them, is there, so they 
should be RFAs, not RFRAs).  Now it is all up in the air.  A broad exemption is 
enacted with no clarity, no predictability, and endless opportunity for 
mischief from both sides and endless possibilities for interpretation.  And all 
the comcomitant social costs and litigation costs.  The state RFA approach 
allows the public accommodation to discriminate on the basis of sexual 
orientation and puts the burden on the victim to sue — which is time consuming 
and taxing financially, socially, and emotionally.  And it then puts the 
business owner to having to defend the action on a fact-specific, 
individual-specific basis of convincing a judge and jury that the actions were 
justified by a religious exercise being substantially burdened.  Well, Hobby 
Lobby made this easy — just claim complicity with evil as your burden and 
you’re home.   Then the burden shifts to the victim — and not the state — to 
show the compelling state interest and least restrictive alternative.  So would 
now the state need to be impleded as a necessary party for complete 
adjudication?  Or would it intervene?

The Indiana sort of RFA carve-out is fraught with problems that a specific 
provision is not.  If the desire is to discriminate against someone on the 
basis of their sexual orientation in some businesses, carve out those 
businesses.  Most will not discriminate either because they don’t feel the 
desire to do so or because they see little point in excluding 10% of their 
possible business clients.  It takes religion out of the equation.

But to some, this paints too broadly and so some who migh accept some carve out 
push it back to religiously-based motivations — but that creates all the 
problems noted above.

In the end, this is another manifestation of the fight between liberty as 
license and equality as inclusion.  Equality and liberty can often be mutually 
supportive at least for some — requiring non-discrimination in employment on 
the basis of race is premised on equality — but makes the historically excluded 
group more included and thus able to exercise liberty more — they have more 
options, more choices, more liberty.

But a cost of any such regulation is a reduction in choice and liberty for 
some.  Same is true for zoning ordinances, environmental regulations, OSHA, and 
so much more — they all limit the liberty of the person who must comply with 
them.  

Hence the concept of “ordered liberty.”  Liberty does not equal license.  And 
never has.  The fact that many people dislike the change wrought by the 
Reconstruction Amendments to bring equality into the constitution at some cost 
to liberty to discriminate against historically excluded and marginalized 
groups does not invalidate the dramatic change those amendments brought about.

Including those who are LGBT favors the equality principle and gives them more 
liberty.  But it does cost some liberty to those who would continue to exclude 
them — for any reason, including religious beliefs.

Do you favor equality as inclusion or liberty as license?  Or some compromise, 
uncomfortable as they can be, between the two?

As I argued about 20 years ago, we should recognize the legitimacy of the 
restrictions on religious exercise as well as the legitimacy of claims premised 
on religious exercise and reach principled compromises whenever possible.  And 
when that doesn’t work — sometimes the principles are not sufficient to reach a 
principled compromise, unless the principle itself is compromise between two 
first-order concepts like liberty and equality, then simple pragmatism should 
rule.

But such is not the world we 

Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

Interesting articles in the Washington Post on the Indiana brouhaha.

http://www.washingtonpost.com/politics/gov-pence-defends-religious-freedom-bill-amid-continued-criticism/2015/03/29/c8174cbe-d63a-11e4-ba28-f2a685dc7f89_story.html

Gov. Pence points out that there are many misunderstandings and much 
misinformation disseminated about what the state RFRA does.  I think that is 
true and I have been having to explain to my friends what the law actually says 
as opposed to what some opponents say it say it says.

But then he goes on to push misinformation himself — that somehow,

“This isn’t about disputes between individuals,” he [Gov. Pence] said. “It’s 
about government overreach, and I’m proud that Indiana stepped forward, and I’m 
working hard to clarify this.”

But there is little evidence of government overreach in restricting religious 
freedom, least of all in Indiana, at least for the majority religions, so it is 
not at all clear what religious freedom needs to be restored.

And Gov. Pence’s comments illustrate how the bill was sold — that it somehow 
does not affect individuals, completely ignoring state laws that would ban 
discrimination must now be defended in court as an affirmative defense under a 
strict scrutiny standard.  I’ve heard apologists for the state RFRAs on TV this 
week make the same misleading/misinformation claim that this has nothing to do 
with individuals interacting with each other.

Viewing state RFRAs as Trojan Horses or the camel’s nose is not crazy.  And the 
timing of this new spate of state RFRAs, post Hobby Lobby, is not an accident.  
Since Hobby Lobby allows discrimination by an employer against women seeking 
certain kinds of medical treatment because of the federal RFRA, it is not crazy 
for those fighting discrimination to see the state efforts to pass broad-brush 
RFRAs in that light.

http://www.washingtonpost.com/blogs/the-fix/wp/2015/03/29/why-the-backlash-against-indiana-and-not-other-states-with-similar-laws-timing/?tid=sm_fb

I wonder what the “clarification” will be?  Exempting discrimination laws 
generally from the state RFRA?  Adding sexual orientation to the list of things 
employers and educators and places of public accommodation cannot use as a 
basis for discrimination? Limiting it somehow to state action that does not 
regulate private individuals or persons generally? (What would that look like?)

Timing is everything.  Well, not quite.  Wording matters too.  As does the evil 
the bill is actually targeting.  As does the evil its advocates say it is 
targeting.

Steve


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

Hope is not the conviction that something will turn out well, but the certainty 
that something makes sense regardless of how it turns out.

Vaclav Havel.









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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

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

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

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

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

Steve


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

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




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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

If the Hobby Lobby decision that complicity with evil simpliciter, no matter 
how attenuated, is a substantial burden is followed, then the fears about state 
RFRAs will be realized.  If however, the (in my judgment vain) attempt by 
Justice Alito to tie the substantiality of the burden to the financial impact 
of compliance in contravention of their belief that to comply would be 
complicit with evil and thus a substantial burden on thieir religion is 
followed, then the fears will not be realized.  Or if the states cut off 
substantial burden at exercise rather than belief with an attenuation or 
“proximate cause” sort or reasoning, then state RFRAs will be ok again.

But, if these are used to permit say-so discrimination against women, blacks, 
asians, latinos, LGBT, Muslims, Jews, or whomever on the basis of some status, 
then they will become vehicles of damage to rights — and possibly quite broad 
ones at that.  The damage is not likely to be due to widespread use of 
complicity-with-evil theories of exclusion of gays or Muslims — because I think 
those beliefs are not all that widespread in a way that will have deep impacts 
like Jim Crow.  But the damage of the signal sent by states that it is 
permissible to exclude people because of their status because of your religious 
beliefs is real and serious and disappointing, to put it mildly.

But I hope this ship rights itself soon.

Steve



On Mar 27, 2015, at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote:

 http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill
 
 If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
 the NCAA would have pulled the Final Four out of Indianapolis; and I think 
 it's safe to predict that the NCAA tourney won't be coming back to Indiana 
 anytime soon.  Think about that -- a basketball boycott in Indiana!  How far 
 we've come . . . 
 
 RFRA has gone from being benign, milquetoast legislation that garnered 
 support across the political spectrum 20 years ago -- like Chevrolet and 
 apple pie -- to becoming the political equivalent of a state adopting the 
 confederate flag, or refusing to recognize MLK Day.  I doubt this would have 
 happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, 
 Tony  Susan Alamo, etc., would have rejected the accommodation claim 9-0.
 
 Of course, the market will ultimately undo the damage:  In order to preserve 
 states' economic competitiveness, their RFRAs will either be repealed or 
 construed to recreate the pre-Smith FEC regime.
 
 The more interesting question is what Justice Alito's initiative augurs for 
 the future of religious accommodations more broadly.
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Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org








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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

“No one”?  Well, maybe not its more sensible advocates.

On Mar 27, 2015, at 3:22 PM, Ryan T. Anderson ryantimothyander...@gmail.com 
wrote:

 What you call discriminate I call freedom to operate in public square in 
 accordance with well-founded beliefs about marriage. As Doug pointed out, no 
 one is talking about discrimination against gay and lesbian people as such. 
 No religion teaches that, and no case is about a blanket policy of refusing 
 to serve gays and lesbians. The religious liberty concerns are about helping 
 to celebrating a same-sex wedding.  The candor that is truly remarkable is 
 that you think it an appropriate use of government coercion to force a 70 
 year old florist to do this. Here I thought you embraced liberty for all.

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

Two quotes from Louis Armstrong:  
You blows who you is. 
If ya ain't got it in ya, ya can't blow it out. 

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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

Interesting that you think that people who want to use this legislationl to 
discrimiate will wait until July to do so.

On Mar 27, 2015, at 1:57 PM, Kniffin, Eric N. eknif...@lrrlaw.com wrote:

 I would caution against reading too much into a reactionary statement from 
 the NCAA’s Director of Public and Media Relations.
  
 Note that the NCAA’s press release says that it will be “work[ing] diligently 
 to assure student-athletes competing in, and visitors attending, next week’s 
 Men’s Final Four in Indianapolis are not impacted negatively” by a law that 
 will not go into effect until July. See 
 https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197.
  
 image001.gif
 Eric N. Kniffin, Of Counsel
 Lewis Roca Rothgerber LLP
 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662
 (T) 719.386.3017 | (F) 719.386.3070
 eknif...@lrrlaw.com | www.LRRLaw.com
  
 

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

Our scientific power has outrun our spiritual power. We have guided missiles 
and misguided man.

- Martin Luther King Jr., Strength to Love, 1963

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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

Paul’s point is supported by those Christians who interpret “shall not be 
unevenly yoked” broadly as requiring separation — including discrimination 
against others of other beliefs.  I have relatives who (formerly) were of 
exactly this belief and know some Christians who still adhere to them.

On another point made by someone — there is huge difference between a law that 
permits people to discriminate and one that prohibits it in terms of how people 
will act.  Having to sue to vindicate rights is never the better way to set 
things up — now it is not a matter of showing discrimination for the person 
excluded, it is a matter of showing non-substantiality of the religious point 
(impossible) and the compelling interest of the state and the least restrictive 
alternative was being used.

That burden of proof is much harder to meet.  Technically the burden is on the 
discriminator to show substantiality, but how does one negate a naked claims of 
a belief that to not discriminate would be to be complicit with evil?

Steve


On Mar 27, 2015, at 2:43 PM, Finkelman, Paul paul.finkel...@albanylaw.edu 
wrote:

 But does this mean that religion is not protected?   Will we see claims that 
 members of certain faiths do not want to hire (or even serve) members of 
 other faiths?  I think the language of the Indiana law and some of these 
 other laws might allow this.  
 
  
 *
 Paul Finkelman
 Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and
 Scholar-in-Residence 
 National Constitution Center
 Philadelphia, Pennsylvania
  
 518-439-7296 (p)
 518-605-0296 (c)
  
 paul.finkel...@albanylaw.edu
 www.paulfinkelman.com
 *


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

Nothing worth doing is completed in our lifetime, 
Therefore, we are saved by hope. 
Nothing true or beautiful or good makes complete sense in any immediate context 
of history; 
Therefore, we are saved by faith. 
Nothing we do, however virtuous, can be accomplished alone. 
Therefore, we are saved by love. 
No virtuous act is quite as virtuous from the standpoint of our friend or foe 
as from our own; 
Therefore, we are saved by the final form of love which is forgiveness. 

Reinhold Neibuhr




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Re: Amazing what Hobby Lobby has wrought

[Steven Jamar]

There is a big difference between a regime where the law says you cannot or 
should not and a law that says its ok in the way people respond.

Most people do not sue most of the time every time their rights are infringed, 
so the “show me the cases” standard seems a bit off to me.

Nonetheless, I think most people will not take advantage of the anti-gay animus 
of the present impetus behind the law.  But that does not mean that that is the 
society we want to create — where people can legally exclude on the basis of 
such beliefs.

Steve

On Mar 27, 2015, at 2:54 PM, Doug Laycock dlayc...@virginia.edu wrote:

 Show me a case. It just hasn’t happened. We have a woman dead in Kansas for 
 lack of a state RFRA; that’s a real case. These wild discrimination 
 hypotheticals are so far just that – wild hypotheticals. And probably that’s 
 all they will be for the future too.
  
 Discrimination against gay customers is entirely legal in Indiana except in 
 Indianapolis and Bloomington. That doesn’t mean that it’s happening, much 
 less that businesses are discriminating and then offering religious 
 justifications. The various Indiana reporters who have called me had not 
 heard any reports of that kind of discrimination.
  
 Douglas Laycock
 Robert E. Scott Distinguished Professor of Law
 University of Virginia Law School
 580 Massie Road
 Charlottesville, VA  22903
  434-243-8546

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

“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis

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

[Steven Jamar]

I thought Smith was wrong at the time. I now think it is mostly right albeit 
with an unworkable, even naive standard of “neutral and generally applicable” — 
which was and is meaningless in a regime of accommodations (how are such laws 
neutral or generally applicable?).  But the idea that religions are generally 
subject to laws which do not (a) target them adversely or (b) make an 
accommodation for them is on balance, I think, a good one and is largely what 
it has come to mean, howsoever badly phrased and conceived.

I think the courts have been generally good on RFRA on emphasizing the 
“substantial burden” aspect.  Until Hobby Lobby, I think most (not all) cases 
got it about right.  But Hobby Lobby got it all wrong.

So, leaving the accommodation to the political bodies seems about right to me, 
but the court in Hobby Lobby giving carte blanche to anyone claiming a 
substantial burden because the courts cannot inquire into the substantiality of 
such a burden — it is up to the adherent only to decide substantiality — goes 
far too far.

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org
Lay not up for yourselves treasures upon earth, where moth and rust doth 
corrupt, and where thieves break through and steal; but lay up for yourselves 
treasures in heaven, where neither moth nor rust doth corrupt, and where 
thieves do not break through nor steal. For where your treasure is, there will 
your heart be also. 

Matthew 6:19-21







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Re: Wedding photographers as creators of art

[Steven Jamar]

Not all bases of discrimination are the same and not all businesses are the 
same.  Discrimination based on the target’s immutable characteristics (race, 
national origin, gender, sexual orientation, etc.) is not the same as one based 
on a difference in beliefs — political, religious, moral.  

A business that sells ordinary goods is not the same as a business that sells 
personal services.  And within the services industry, an artistic endeavor such 
as photography is not the same as a car mechanic.

When, if ever should these real differences matter?

There will inevitably be line drawing with lines that some lines drawn that 
some find indefensible and that are distinguishing between closely similar and 
difficult cases.  That is true in every area of law I have come across.  
Sometimes the lines get drawn on a very inarticulate “all the circumstances” 
basis with essentially no guiding principle.  That is, I submit, the nature of 
society and the law’s attempts to regulate it.

Take a wedding cake.  There is a difference between a phoned-in order to a 
bakery for a “generic” three layer wedding cake and one special ordered by a 
same-sex couple wanting some special features because it is for a same-sex 
wedding.  Does it matter whether the bakery is a commercial bakery or that the 
baker is just someone doing it on the side as a sometimes-business?  I think 
all of those sorts of things matter in deciding whether to allow the 
discrimination.

I think the wedding cake for the same sex marriage is easy — while I 
acknowledge there is some art to making a cake, for the most part it is a 
matter of selecting the cake from pictures — “I want one like that”.  

But for me the photographer is different.  Maybe because I take pictures — and 
every now and again try to take artful ones.  And they are psychologically 
different than party snapshots, though even those take more creativity than the 
standard facebook fare if one wants a decent picture, i.e., one that is well 
composed, exposed, etc.

So I would draw two lines — one based on creativity and one based on intimacy 
(Eugene’s prostitute) and allow discirmination more broadly in those settings.

But I would not allow the photography factories (Sears, school and sport team 
photographers, etc.) the same right to refuse — they are more like the mechanic 
or bakery.  Nor would I allow a pharmacist to refuse to dispense legal 
contraceptive drugs or devices.  Nor would I allow an insurer or company to 
refuse to cover such devices and drugs.  But a surgeon or nurse performing an 
abortion — I would give them the religious exception.

I think RFRAs that allow such broad based discrimination based on any sincere 
belief go to far.  But for me the line-drawing is neither obvious nor easy — 
they are uncomfortable, close questions.s

Steve



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








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

[Steven Jamar]

I think one will see all sorts of errors — like those going the other way in 
Alabama right now.  And like those teachers and administrators who wrongly 
prohibit kids from private prayer before lunch or from reading the Bible in 
free reading time. 

And ironically some of the mistakes will be made because people against gay 
rights misrepresent what recognition of gay rightss will in fact require — and 
then when the gay rights come, the misreprentation gets treated as real.

Not all that dissimilar from the corporations are people too  mistakes made on 
both sides — they are for some purposes and not others.  But they are not 
treated the same as natural persons with respect to constitutional rights.

These mistakes in administering the laws are unavoidable.  Would the 
legislative proposal making clear that the constitutionally required exception 
applies clarify things and reduce mistakes?  I’m not sure that it would, but it 
might.

Steve

On Feb 13, 2015, at 5:50 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

 Any thoughts on the Coeur d’Alene, Idaho incident in which 
 the City Attorney suggested that a wedding chapel run by two ministers would 
 have to allow same-sex marriages, given a Coeur d’Alene public accommodations 
 ordinance that banned sexual orientation discrimination?  
 Seehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/
  .  The same rationale might well apply to a minister who gets paid for 
 officiating just as a side business, even without having a chapel of his own.
  
 The city did apparently change its stance, in response to the public 
 outcry,http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/.
   But perhaps the Oklahoma Legislature wants to prevent such local decisions 
 from being made, rather than leaving protection against such decision to 
 public pressure or court decision.
  
 As to predictions, I wouldn’t have predicted in 1996, when the Defense of 
 Marriage Act was passed, that in 2015 the Court would be quite likely to 
 recognize a constitutional right to same-sex marriage.  It might likewise be 
 hard to tell for certain what some Oklahoma cities might do in the coming two 
 decades.
  
 Eugene
  

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

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

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Re: Homeschooling, vaccinations, and Yoder

[Steven Jamar]

Penn  Teller illustrate the value of vaccinations.

http://www.kevinmd.com/blog/2015/01/watch-2-magicians-destroy-anti-vaccine-movement-90-seconds.html


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

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

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Re: [Ipprofs] Souix Falls Jesus Christ snow plows

[Steven Jamar]

Sorry to cloud the issue with facts, but since the first posting, I've learned 
that there are a number of snowplow blades with various messages on them — not 
all Christian evangelism.  
http://siouxfalls.org/active-projects/special-projects/paint-the-plows/Gallery/havey-dunn.aspx



So, does this make snowplow blades a designated public forum with the result 
controlled by Rosenberger?  Or is this sort of endorsement (these are city 
plows, not evangelical newsletters) on actual city equipment matter?  How far 
do the secularized creche, Rosenberger, and Town of Greece doctrines reach?



-- 
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://sdjlaw.org
“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”


Miles Davis

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Souix Falls Jesus Christ snow plows

[Steven Jamar]

The seems to be a pretty clear case of violating the establishment clause AND 
the trademark rights of Coca Cola.

http://godsnotdeadthemovie.com/blog/gods-dead-sioux-falls/

-- 
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://sdjlaw.org
To see a World in a Grain of Sand 
And a Heaven in a Wild Flower, 
Hold Infinity in the palm of your hand 
And Eternity in an hour. 

William Blake




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Re: I would not have enacted this statute - Justice Scalia on RLUIPA

[Steven Jamar]

The best way to get a bad law repealed is to enforce it strictly.”  Abraham 
Lincoln


On Oct 19, 2014, at 5:20 PM, Ira Lupu icl...@law.gwu.edu wrote:

 I appreciate the comments of others to the effect of I would not have 
 enacted . .  = stupid or silly.  Note that the Supreme Court must take 
 state law as the Court finds it, silly, stupid, or otherwise.  But the Court 
 has authority to interpret federal law.  So perhaps we need a new maxim of 
 statutory construction -- should it be stupid laws should be narrowly 
 construed, to minimize their harm; i.e., compelling means something much 
 less than it seems, as in pre-Smith law?  Or should it be stupid laws should 
 be broadly construed, to show Congress just how stupid its law really is; 
 i.e., compelling means what some shallow law students might think it means, 
 even if that overly empowers individuals against the state? 


-- 
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://sdjlaw.org

But, Mousie, thou art no thy lane,
In proving foresight may be vain;
The best-laid schemes o’ mice an’ men
Gang aft agley,
An’ lea’e us nought but grief an’ pain,
For promis’d joy! 

Robert Burns, 1785




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Re: Is it possible that rights of both same-sex couples and vendors who object on religious grounds could be protected?

[Steven Jamar]

Don’t some public accomodations laws reach vendors — even though employment 
discrimination laws don’t?  I don’t know that the federal law does, but surely 
some states’ laws do.


On Oct 9, 2014, at 6:01 PM, Michael Peabody peabody...@gmail.com wrote:

 Greetings,
 
 Please forgive me if this has been addressed before, but  I have been
 wondering if the Supreme Court could be working to protect both the
 emerging right of same-sex couples to marry and the rights of wedding
 vendors who oppose same-sex marriage on religious grounds.  On one
 hand, this week the SCOTUS decided not to hear the cases coming up
 from the Circuits (covering some 30 states or so), but on the other
 hand, earlier this year the Court ruled in Hobby Lobby that the rights
 of businesses who refuse to provide contraception on religious grounds
 could be protected under RFRA.
 
 Granted, RFRA is a federal statute, but many who oppose RFRA argue
 that it is duplicative of existing state and federal rights anyway. So
 for the sake of argument, I'm going to assume that a Federal right to
 same-sex marriage is established and that discrimination against
 same-sex couples is actionable under something like Title VII.  Now
 let's say that a wedding vendor (somebody who takes pictures or sings
 songs at weddings) believes that same-sex marriage is against his or
 her beliefs.  Under the Hobby Lobby rationale, I think we could argue
 that the vendor that refuses to participate in the ceremony (i.e.
 making the day special) might be protected.  Certainly direct
 participation in a ceremony (or direct support service) is much less
 attenuated than a woman's right to
 government-mandated-company-paid-insurance-policy's-coverage-of-contraceptives-the-knowledge-of-use-of-which-is-confidential-per-HIPAA.
 
 1.  Could it be that the right to marry is protected, as is the right
 of businesses refrain from participation in such ceremonies on
 religious grounds under RFRA (or its state analogues)?
 
 2.  Could it also be that the imposition of the government into a
 dispute regarding a vendor's refusal to participate in a wedding (a
 religious sacrament to the vendor regardless of the profit motive or
 intent of the couple), and where the government requires a business to
 perform the service or be forced to close, constitutes a violation of
 the Establishment Clause?
 
 I'd be very interested in knowing your thoughts on this.
 
 Sincerely,
 
 Michael D. Peabody, Esq.
 http://www.religiousliberty.tv
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-- 
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://sdjlaw.org

When I grow up, I too will go to faraway places, and when I grow old, I too 
will live beside the sea.
That is all very well, little Alice, said her grandfather, but there is a 
third thing you must do.
What is that? asked Alice.
You must do something to make the world more beautiful, said her grandfather.
All right, said Alice.

from Miss Rumphius by Barbara Cooney (© 1982)




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Re: Holt v. Hobbs Oral Argument

[Steven Jamar]

On Oct 8, 2014, at 9:08 AM, Douglas Laycock dlayc...@virginia.edu wrote:

 And of course a fair number of questions about how to reconcile deference 
 with compelling interest and least restrictive means.  That is a genuine 
 puzzle.

sarcasm I’m shocked that anyone could have trouble with this after Kennedy 
cleared it all up in Fisher!  Shocked! I say. Shocked! /sarcasm

More seriously, thanks for the report, Doug.  About 5 of my Con Law students 
were there for the argument yesterday and l look forward to hearing their takes 
on it in class tomorrow.

Steve



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://sdjlaw.org

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




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Re: science professor lecture

[Steven Jamar]

How would it not be constitutional? What possible theory?

On Sep 28, 2014, at 5:24 PM, Marc Stern ste...@ajc.org wrote:

 
 Today's NY Times Review section has an article by a professor of evolutionary 
 biology at a public university describing a lecture he gives annually 
 explaining how that body of science ‎ has undermined central claims of 
 religious traditions.  
 
 Is it constitutional for him to give this lecture? Would it be constitutional 
 for a professor of theology at the same university to offer a rebuttal in 
 religious terms?
 
 Marc
 Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
 From: Rick Garnett
 Sent: Friday, September 26, 2014 10:43 AM
 To: Law  Religion issues for Law Academics
 Reply To: Law  Religion issues for Law Academics
 Subject: Re: GW National Religious Freedom Moot Court Competition
 
 Dear Chip,
 
 Thanks for this.  I'm hoping that Notre Dame will send a team again.  All the 
 best,
 
 Rick
 
 Richard W. Garnett
 Professor of Law and Concurrent Professor of Political Science
 Director, Program on Church, State  Society
 Notre Dame Law School
 P.O. Box 780
 Notre Dame, Indiana 46556-0780
 574-631-6981 (w)
 574-276-2252 (cell)
 rgarn...@nd.edu
  
 To download my scholarly papers, please visit my SSRN page
  
 Blogs:
  
 Prawfsblawg
 Mirror of Justice
  
 
 Twitter:  @RickGarnett
 
 On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu icl...@law.gwu.edu wrote:
 George Washington University will once again host the National Religious 
 Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. 
 The registration period is open from now until Nov. 15, 2014.  The problem 
 will be released on Nov. 17, 2014.  The competition will be held at GW on 
 Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of 
 conscience raised by teachers against a hypothetical law in Washington, D.C. 
 that requires teachers and administrators to carry firearms on public school 
 property during school hours.  More information here: 
 http://www.religionmootcourt.org/  (Ignore the Feb, 2014 dates at the top of 
 the website).
 
 -- 
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW 
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
 
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-- 
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://sdjlaw.org

“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis

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athiest prevented from reenlisting in the air force

[Steven Jamar]

Surely this is an easy case?

http://www.abajournal.com/news/article/atheist_who_wouldnt_take_so_help_me_god_oath_isnt_allowed_to_reenlist_group/?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://sdjlaw.org


A life directed chiefly toward the fulfillment of personal desires sooner or 
later always leads to bitter disappointment.

Albert Einstein






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Justices as historians, social scientists, or advocates

[Steven Jamar]

The justices are woeful historians — but this is understandable given that our 
discipline is rhetorical, not truth-based.  We are trained to find support for 
our positions and to push that support and the inferences from it as far as we 
can to support our conclusions.  The justices, in their opinions exemplify this 
all the time — not only with history, but as Sandy rightfully points out, with 
facts and data and beliefs about how things are and how they work.  And let’s 
not talk about expert testimony and statistics.

Steve

On Jul 9, 2014, at 6:28 PM, Levinson, Sanford V slevin...@law.utexas.edu 
wrote:

 It's not only that HHS may be less than trustworthy (assuming, arguendo, 
 that is the case).   I think the more important point is that the Supreme 
 Court quite regularly makes decisions on the basis of surmises and their own 
 view of reality that have little or no support in any serious empirical 
 literature.  
 
 sandy
 

-- 
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://sdjlaw.org


Whenever you find yourself on the side of the majority, it is time to pause 
and reflect.

Mark Twain






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Re: Untangling the confusion of the Wheaton College order

[Steven Jamar]

Yes.  We are not only deep into an accommodationist regime, but the complicity 
theory immunizes religious claims from examination except for sincerity.  
Attenuation could be adopted in a later case, but if it is not attenuated in 
HL, then it is hard to see where it would be.  And as we all know, one can 
easily play rhetorical games with attenuation and with defining just what is 
the evil with which one would be complicit.

If one believes Justice Alito, and I don’t, then the complicity theory only 
establishes burden, not substantial burden, which is a separate inquiry.  So in 
theory, one could accept any level of complicity as a claim of burden, but 
still not find it substantial.  But that is a twisted mess too, isn’t it.  How 
can one inquire into the substantiality of the burden if one accepts the claim 
of burden?  Can we use, as the court did in HL, external financial burden to 
show substantiality and nothing else?  Or would just an action (entering into a 
contract) be the substantial burden without any showing of financial hardship?  
And if the adherent claims that just entering the contract is the substantial 
burden, under the complicity theory coupled with the immunization of the claims 
from scrutiny seems to make the financial aspect irrelevant.  

So then the government falls back on compelling interest and least restrictive 
alternative.  I wonder whether to some extent this decision reflects continuing 
picque at Congress overturning Smith by enacting RFRA — and the court is trying 
to get it repealed or changed by the surest way —by enforcing it strictly — as 
pointed out by Abraham Lincoln.

Steve



On Jul 5, 2014, at 9:29 AM, Levinson, Sanford V slevin...@law.utexas.edu 
wrote:

 Marty writes that the “mess . . .  is a function of the increasingly 
 implausible theories of complicity being offered by the plaintiffs' lawyers 
 -- which the Court has invited with its capacious understanding of what 
 constitutes a religious question beyond the ken of civil authorities to 
 evaluate.”  I think he’s absolutely right.  Hasn’t the Court in effect made 
 evaluation of religious argument, at last from an outsider’s perspective, 
 nearly impossible, unless one goes down the rabbit hold of challenging 
 “sincerity.”
  
 sandy
  
 
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Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://sdjlaw.org

Example is always more efficacious than precept.

Samuel Johnson, 1759




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Re: Untangling the confusion of the Wheaton College order

[Steven Jamar]

I was using accommodation as distinguished from separation or coercion or 
neutrality as guiding principles.  I think that is somewhat different from 
Sandy’s point.

I think Sandy’s point about the decline of the understanding of government and 
civil society as being (largely) based on reason, at least with respect to law, 
is an important, albeit somewhat different point.

Steve

On Jul 5, 2014, at 11:22 AM, Richard Dougherty dou...@udallas.edu wrote:

 I think Sandy has hit the nail on the head here, but I would add a twist to 
 it.  Perhaps I am missing something, but what is the preferred alternative 
 today to accommodation? Isn't it using the non-religious standard to judge 
 the religious claim?  Or simply majority rule?  (Public opinion polls are all 
 over the place, of course, but many suggest sympathy for the Hobby Lobby 
 position.) But where does that leave the right to free exercise of religion?
 
 The twist I would put on Sandy's question is this: the independent scrutiny 
 can only be undertaken by someone who is a foreigner to the religious claim.  
 But the success of one's claim doesn't mean it is an irrational claim, or 
 that arguments can't be made for it, only that those arguments will not be 
 persuasive to those who are not sympathetic with the first principles at 
 work.  Thus Locke's toleration, as he himself notes, cannot extend to 
 Catholics or Muslims.
 
 The triumph of post-modernism can in fact leave us without a basis for making 
 assessments of reasonable claims.  The danger, though, is not only 
 over-accommodation (a real danger, I readily admit) -- on the other side it 
 can be under-accommodation, or simply the exercise of power.
 
 Richard Dougherty
 University of Dallas
 
 
 On Sat, Jul 5, 2014 at 9:52 AM, Levinson, Sanford V 
 slevin...@law.utexas.edu wrote:
 Let me tendentiously suggest that accommodationist is synonymous with 
 irrationalist if in fact one can't subject the proffered arguments to some 
 kind of independent scrutiny. Of course, this may represent the ironic 
 triumph of post-modernism, inasmuch as it taught many of us that there is in 
 fact no truly independent vantage point from which to police claims. But, 
 also of course, one can be certain that Wheaton and other religious claimants 
 have no sympathy for post-modernist anti-foundationalism.  
 
 Sandy
 
 Sent from my iPhone
 
 
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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://sdjlaw.org


If a man empties his purse into his head, no man can take it away from him.  
An investment in knowledge always pays the best interest.

Benjamin Franklin





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Re: Hobby Lobby Question

[Steven Jamar]

No.  I do not reject the legitimacy nor the religiousity of the plaintiff’s 
beliefs.  Quite the contrary; I accept them and undertstand them.  But I do not 
accept that we should accept a complicity with evil claim when it becomes too 
attenuated as it is here.  The inquiry is attenuation, not substantive on the 
sinfulness nor evilness nor “legitimacy” of the beliefs.

Here, the attenuation wanders through several steps:  
1.  corporate structure (this alone would not be enough attenuation in my 
judgment)
2.  insurance coverage is outside of their control — it is mandated by the state
3.  the actual payments for the abortificants (howsoever erroneously or 
correctly defined is irrellevant) comes from a third party — the insurers and 
so this attenuates the action by the owners one step more (compare Rosenberger 
and voucher cases treatment of directness)
4.  the decision to get the abortificants is by the employee.

Note that if the employer did not provide any insurance, it would still be 
complicit with evil by paying any wages at all to women employees some of whom 
may use an IUD or get a morning-after pill or other offending treatment.  Yet 
surely no one would claim that that would allow the employer to not pay wages 
or to reduce wages by the cost of obtaining such devices, would they?

This is the danger of this case — where does one draw the line on the 
complicity with evil theory?  Can Quakers now stop paying that portion of taxes 
that goes to support war?  That is at least as directly complicit as in this 
case.

So I would use attenuation — we use this sort of idea in proximate cause and in 
other settings for legal responsibility and can do so here.  Imperfectly?  
Surely.  But the law never achieves perfection.

Steve

On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote:

 I appreciate Steve's response, which I think demonstrates that he is 
 precisely rejecting the legitimacy (or perhaps the religiosity) of the 
 plaintiffs' beliefs.  The plaintiffs say that their religious beliefs 
 prohibit complicity with evil, and that signing a contract that makes 
 available certain chemicals or devices to others amounts to complicity with 
 evil, because of the use to which such chemicals or devices are most likely 
 to be put (terminating what plaintiffs believe is a human life).  
 
 If a court should not accept that assertion without inquiry, then what 
 inquiry is it supposed to make?  
 
 Can a court evaluate and reject the religious belief that complicity with 
 evil is sinful?  
 
 Can a court evaluate and reject the religious belief that terminating a 
 human life is evil?  
 
 Can a court evaluate and reject the religious belief that morning-after 
 pills terminate a human life?  
 
 Can a court evaluate and reject the religious belief that providing the 
 means for a person to obtain a chemical or device whose principal purpose is 
 to terminate a human life, and that is likely to be used for that purpose, 
 counts as complicity in terminating a human life? 
 
 Is there some other inquiry the court should be making that I'm missing?
 
 Art Spitzer
 PS - My questions should not be taken to imply that I necessarily agree with 
 the majority opinion (not that anyone cares), and they certainly do not 
 represent the views of my employer.
 
 
 
 Warning: this message is subject to monitoring by the NSA.
 
 
 
 On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote:
 The court accepts without inquiry the assertion that the complicity with evil 
 theory is the problem that leads to the substantial burden. It merely accepts 
 the claim that the adherents cannot comply because of the complicity theory.  
 It then bootstraps that there would be costs of non-compliance. 
 At the core the court buys the argument that an attenuated complicity can be 
 the basis of a substantial burden.
 
 Sent from Steve's iPhone 
 
 
 On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote:
 
 I'm puzzled by Steve Jamar's statement that yesterday's decision arguably 
 requires all courts to simply accept the religious adherent’s claim that the 
 burden is substantial.  The majority analyzed whether the burden was 
 substantial and found it was because the ACA would impose millions of 
 dollars of financial penalties on the plaintiffs if they did not comply.  
 Slip op. at 32.  I don't think the Court tells us whether a $100 fine would 
 have been a substantial burden.  I'm curious what in the opinion Steve 
 points to in support of the proposition that courts may not evaluate the 
 substantiality of a burden, especially considering that the Court did 
 evaluate that question, as an empirical matter, in this case.
 
 Art Spitzer
 
 
 Warning: this message is subject to monitoring by the NSA.
 
 
 
 On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote:
 Brown eliminated the constitutional doctrine of separate but equal — in the 
 Brown

Re: Hobby Lobby Question

[Steven Jamar]

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

Sent from Steve's iPhone 


 On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote:
 
 I'm puzzled by Steve Jamar's statement that yesterday's decision arguably 
 requires all courts to simply accept the religious adherent’s claim that the 
 burden is substantial.  The majority analyzed whether the burden was 
 substantial and found it was because the ACA would impose millions of dollars 
 of financial penalties on the plaintiffs if they did not comply.  Slip op. at 
 32.  I don't think the Court tells us whether a $100 fine would have been a 
 substantial burden.  I'm curious what in the opinion Steve points to in 
 support of the proposition that courts may not evaluate the substantiality of 
 a burden, especially considering that the Court did evaluate that question, 
 as an empirical matter, in this case.
 
 Art Spitzer
 
 
 Warning: this message is subject to monitoring by the NSA.
 
 
 
 On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote:
 Brown eliminated the constitutional doctrine of separate but equal — in the 
 Brown decision just for education, but it was applied to all racial 
 classifications.  The 1964 Civil Rights Act accomplished much more, of 
 course, but the Brown decision matters a lot.
 
 So it is with numerous decisions.  Hobby Lobby’s acceptance of the 
 complicity with evil theory in this attenuated context and its ruling that 
 arguably requires all courts to simply accept the religious adherent’s claim 
 that the burden is substantial, could dramatically change the landscape of 
 RFRA interpretation federally and by example at the state level.These 
 underlying principles could also be restricted by later decisions or 
 expanded.  It is a very troubling expansion of RFRA beyond what was intended 
 originally.  But that is hardly unique to this bit of legislation.
 
 I think it is a very bad decision, but not even in the top ten.
 
 -- 
 Prof. Steven D. Jamar vox:  202-806-8017
 Director of International Programs, Institute for Intellectual Property and 
 Social Justice http://iipsj.org
 Howard University School of Law   fax:  202-806-8567
 http://sdjlaw.org
 
 For all men of good will May 17, 1954, came as a joyous daybreak to end the 
 long night of enforced segregation. . . . It served to transform the fatigue 
 of despair into the buoyancy of hope.
 
 Martin Luther King, Jr., in 1960 on Brown v. Board of Education
 
 
 
 
 
 
 
 
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Re: Simple Hobby Lobby question

[Steven Jamar]

Religion-in-employment cases should not be one-sided or even two sided — there 
are at least three parties with serious interests that come into play–the 
employer’s religious exercise; the employees’ interest in employment, in the 
benefits required by law, in the employee’s (singularly or collectively) free 
exercise or freedom from imposition of the employer’s religion; and the 
interest of the people/the state/the public interest in seeing that secular 
purposes are followed.

If RFRA is applied to protect Hobby Lobby in this case, then the various 
interests of the employees are being ignored and the religious interests of the 
employer are being allowed to trump all of the employee interests and all of 
the public interest that led to the neutral law in the first place.  

I would prefer to see this case decided on no-substantial burden grounds and 
the “complicity” theory utterly rejected as a grounds to refuse to comply with 
a secularly purposed law that has such an attenuated impact on the free 
exercise of anyone, but I agree with those who have noted that this requirement 
could well pass RFRA strict scrutiny even if the threshhold is deemed to have 
been met.

If Hobby Lobby can ignore this law, then the concept of ordered liberty is 
undermined in favor of atomization and religion-based unit vetoes.  That is 
wrong policy and is certainly not compelled as a matter of existing 
constitutional law or RFRA itself.

Steve

-- 
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://sdjlaw.org


There is no cosmic law forbidding the triumph of extremism in America.

Thomas McIntyre






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Re: Divisiveness

[Steven Jamar]

“nones”? 
Huh.  I knew that was a thing, but didn’t really expect to see it here.

Steve

On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote:

 I agree with Alan's statement below, stated better than I did.  I would add 
 that we now do/should include the nones within the system.
 
   Jon
 
 On 2014-06-08 22:36, Alan Brownstein wrote:
 If divisive means that people will be upset by a substantive decision
 than Eugene is clearly correct. I have always thought the issue was
 whether a decision was one that provoked political divisions along
 religious lines in the sense that if government could promote religion
 (or interfere with religion) religious groups would have an additional
 incentive to organize and mobilize as religious groups in order to
 make sure that it was their faith that the government promoted and
 that it was not their faith that was subject to government
 interference. Placing a church-state issue beyond the scope of
 political decision-making by subjecting it to constitutional
 constraints avoided (or at least mitigated) these kinds of
 political/religious divisions.
 
 There is probably a better term for this concern than divisiveness.
 
 Alan Brownstein
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 From: religionlaw-boun...@lists.ucla.edu
 [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
 [vol...@law.ucla.edu]
 Sent: Sunday, June 08, 2014 4:54 PM
 To: Law  Religion issues for Law Academics
 Subject: Divisiveness
 
I agree very much with Tom on this point.  In most
 controversies, both sides are acting in ways that could plausibly be
 labeled as divisive.  Government religious speech may be seen as
 divisive, because it may alienate members of other religious groups;
 but prohibitions on such speech, or litigation seeking such
 prohibition, may be as divisive or more so.  A pro-Hobby-Lobby
 decision might be divisive, but an anti-Hobby-Lobby decision might be
 divisive.  Indeed, academic criticism of a pro-Hobby-Lobby decision
 (or an anti-Hobby-Lobby decision) might be divisive -- and so was the
 implementation of the mandate without a broad religious exemption, as
 Tom points out.  The Employment Division v. Smith regime can be seen
 as divisive -- but the RFRA regime, or the Sherbert regime, which
 makes controversial judicially implemented religious accommodations
 possible, can apparently be divisive, too.
 
Indeed, in my experience, most people -- I speak generally
 here, and not with a focus on this list -- can easily see the
 potential divisiveness of decisions they dislike on substantive
 grounds, but don't even notice the divisiveness of decisions they
 think are sound.  After all, if one thinks a decision is sound, it's
 easy to view those who disagree as just unreasonable, so that their
 feelings of alienation don't really count (since they deserved to
 lose, and are now just being sore losers).
 
Of course,
 
Eugene
 
 Tom Berg writes:
 
 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.)
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-- 
Prof. Steven D. Jamar  

Re: Does UVA have its own Regnerus scandal?

[Steven Jamar]

Mr. Green,

Law and religion academics have been disagreeing with Doug Laycock for years on 
the meaning of and proper scope of religious freedom.  Prof. Laycock is well 
aware of the substantive impact of  the issues he addresses — or as aware if 
those impacts as one can be on something so uncertain.  I do not doubt his 
sincerity nor his commitment to religious liberty as well as many other aspects 
of civil rights howsoever often I disagree with his assessments and positions.

There are academic freedom issues you seem willing to ignore — something even 
the students seeking the information recognize as a concern, albeit one that 
they are willing to harm for their conception of a greater good.  

I second the comments of others on this list that you inform yourself more 
fully about the nature of the religious legal positions taken by Prof. Laycock 
and the proper legal context of them and address those if you want any 
meaningful participation from people on this list — including those of us who 
substantively may well support your political position and oppose Prof. 
Laycock’s legal position.  What we, or at least I, cannot do is accept this 
sort of empty broadside by treating it seriously.

Steven Jamar


-- 
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://sdjlaw.org

“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis

On May 25, 2014, at 6:42 PM, jim green ugala...@gmail.com wrote:

 Too bad it took a few brave college students to do what responsible 
 academics (including many on this list) have failed to do for years...
 
 http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html
  
 
 -​--Jimmy Green​
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States prohibiting churches from sanctioning same-sex marriage

[Steven Jamar]

Isn’t this an easy case of free exercise violation?  Assuming that states do 
not need to recognize same sex marriages as a matter of federal equal 
protection law, and do not need recognize church-recognized same sex marriages 
as vaild for state purposes (though the state would still recognize church 
authority to perform opposite-sex marriage), can the state ban a church from 
performing a religious marriage ceremony?

-- 
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://sdjlaw.org

Education:  the path from cocky ignorance to miserable uncertainty.

Mark Twain






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Re: Hobby Lobby transcript

[Steven Jamar]

I think Mary is dead-on on this point and would love to see the court interpret 
RFRA as inherently and unavoidably including some sort of balancing test that 
takes into account not just whether the burden is substantial, but just how 
substantial or intrusive it is, as well as recognizing that the state’s 
compelling interests are not all equal, and that the state’s interest includes 
the employee’s liberty and economic and health interests as well as the 
“state’s” separable interests and that the employee’s interests should be 
included in the mix in assessing the substantiality of the burden and the 
compellingness of the state’s interest.  Of course this requires RFRA to be 
applied somewhat differently from the way it is written, but the court has a 
strong leg to stand on for this sort of intepretation — RFRA itself is the 
“Restoration” act and specifically states that it was returning the law to what 
it was before Smith — and so congressional intent can be used to interpret 
these terms in the very way Marty articulates below.

We all know that the court often puts its decisions into a form that does not 
reflect fully the “real reasons” behind the decision, but rather puts them into 
the language and structures of our traditional forms of legal reasoning.  While 
that is generally to the good, I do at times wish the court would be more 
willing to rework its formula of words to reflect what it is doing more 
forthrightly.  Of course this has been true for a long time in EP with its 
rational basis and less deferential rational basis review where, as suggested 
by Justice Thurgood Marshall (among others) the court is really engaging in a 
balancing test looking at not only the interests of the state, and the 
interests of the person whose liberty is at stake, but also at the interests of 
third parties, especially in the employment setting.

Steve



-- 
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/
“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”


Miles Davis

On Mar 26, 2014, at 7:44 AM, Marty Lederman lederman.ma...@gmail.com wrote:

 3.  I forgot to mention in my original post one other thing that struck me 
 during the argument:  Justice Kagan described the Sherbert/Yoder practice of 
 the Court as being a form of balancing, involving not only the nature and 
 degree of burden on the plaintiff and the government's interest, but also the 
 impact on third parties.  Of course, as most of you know, she's absolutely 
 right -- this is in fact exactly what the Court was doing in cases from 
 Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the 
 language of strict scrutiny.  (The only case I'm aware of in which the Court 
 was honest about its balancing was Warren's plurality opinion in Braunfeld.)  
 This led me to think, once again, that perhaps Chip was right way back in 
 1993 -- it would have been much better for Congress to have used the language 
 of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was 
 to recreate the FEC doctrine of the preceding generation.  A lesson for state 
 legislatures and mini-RFRAs going forward? 

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Re: Hobby Lobby transcript

[Steven Jamar]

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

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

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

Margaret Meade




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

 Marty’s argument did seem to get some traction.  But in addressing the 
 alternative of not providing insurance and simply paying the $26 million 
 ($2000 per employee), Clement suggested that the overall cost to the employer 
 – including the need to pay higher wages and the adverse impact on attracting 
 employees, etc. – still would amount to a substantial burden.  He also argued 
 that the government had not litigated the case on the theory that this 
 alternative was a viable option, and he suggested that he would like a chance 
 to demonstrate – presumably with financial calculations and expert testimony, 
 etc. – that this alternative would not be economically viable and therefore 
 would not eliminate the substantial burden.
  
 Here’s what he says at p. 28: “I think there would still be a substantial 
 burden on their exercise.  But again, this all turns on issues that the 
 government hasn't put in issue.  This case hasn't been litigated on this 
 particular theory, so I think -- I'd  love to have the opportunity to show 
 how by not providing health insurance it would have a huge burden on my 
 client and their ability to attract workers, and that in fact would cost them 
 much more out of pocket. But that's not been the nature of the government's 
 theory.”
  
 So, even if the Court were inclined to accept Marty’s argument, wouldn’t the 
 challengers have to be given a chance to litigate this question on remand?
  
 Dan Conkle 
  
 Daniel O. Conkle 
 Robert H. McKinney Professor of Law 
 Indiana University Maurer School of Law 
 Bloomington, Indiana  47405 
 (812) 855-4331 
 fax (812) 855-0555 
 e-mail con...@indiana.edu 
 
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
 Sent: Tuesday, March 25, 2014 4:19 PM
 To: Law  Religion issues for Law Academics
 Subject: Hobby Lobby transcript
  
 is here:
 
 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
 
 Audio should be available later in the week.
 
 I'd be curious to hear what others who attended thought of the argument.
 
 I'll mention only three things of particular note:  
 
 First, several of the Justices, including Justice Kennedy, appeared to be at 
 least somewhat sympathetic to the argument I've been stressing that the 
 employers' religion might not be substantially burdened because they have the 
 option of not offering a plan (which might well save them money).
 
 Second, there appeared by the end of the argument to be a very real 
 possibility of a judgment that the government must advance its interests 
 through the less restrictive means of offering its secondary accommodation 
 (payment required of the issuer or the TPA) to for-profit corporations, as 
 well.  This idea seemed to have traction with Justices of varying 
 perspectives, and neither advocate resisted it much -- indeed, Paul Clement 
 appeared to go out of his way in rebuttal to encourage it, and to stress that 
 he had hinted at it on page 58 of the Hobby Lobby brief.
 
 Third, Justices Alito and Scalia tried to argue that RFRA goes much further 
 than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there 
 are five votes for that.
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Please note that 

Re: Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

[Steven Jamar]

An employer's duty to accommodate is notoriously anemic. Here the Buddhist is 
likely claiming the requirement forces the employee 

Sent from Steve's iPhone 


 On Mar 25, 2014, at 9:34 PM, Volokh, Eugene vol...@law.ucla.edu wrote:
 
 An interesting lawsuit that Howard Friedman blogged about, 
 and that I thought I’d pass along.  I assume that in this situation, the 
 employee would win only if there were someone else who could have easily done 
 the task instead of the plaintiff, yes?  I would think that, both as a matter 
 of the Title VII religious accommodation rules and as a matter of the 
 company’s First Amendment rights, a company has to be able to express its 
 views notwithstanding a speaker-employee’s objections to conveying those 
 views.
  
 Eugene
  
 Feed: Religion Clause
 Posted on: Tuesday, March 25, 2014 4:10 AM
 Author: Howard Friedman
 Subject: Fired Buddhist Employee Sues Claiming Failure To Accommodate 
 Religious Beliefs
  
 Courthouse News Service yesterday reported on a Title VII  religious 
 discrimination lawsuit filed in Texas federal district court by the former 
 director of marketing communications for a wireless network services company. 
 Plaintiff Jef Mindrup, a Buddhist, claims he was fired because he refused to 
 comply with a request by the company's co-founder that he add Biblical verses 
 to the company's daily newsletter. His lawsuit alleges that the company 
 fail[ed] to accommodate plaintiff on the basis of his religion by requiring 
 him to proselytize the Christian religion, a religion other than his own.
 
 View article...
 
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Re: Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

[Steven Jamar]

The employer's duty to accommodate is notoriously anemic. Forcing an employee 
to violate his beliefs concerning right speech seems wrong as a matter of 
morality and policy, but not law. If someone else can put the offensive words 
on the communications, then there might be an accommodation case, but doubtful. 
Things are stacked heavily in favor of employers. Interesting question by 
Kennedy in hobby lobby expressing concern about the employees rights being 
implicated as well as the employer's.  I think the law should protect employees 
better, but it doesn't.

Sent from Steve's iPhone 


 On Mar 25, 2014, at 9:34 PM, Volokh, Eugene vol...@law.ucla.edu wrote:
 
 An interesting lawsuit that Howard Friedman blogged about, 
 and that I thought I’d pass along.  I assume that in this situation, the 
 employee would win only if there were someone else who could have easily done 
 the task instead of the plaintiff, yes?  I would think that, both as a matter 
 of the Title VII religious accommodation rules and as a matter of the 
 company’s First Amendment rights, a company has to be able to express its 
 views notwithstanding a speaker-employee’s objections to conveying those 
 views.
  
 Eugene
  
 Feed: Religion Clause
 Posted on: Tuesday, March 25, 2014 4:10 AM
 Author: Howard Friedman
 Subject: Fired Buddhist Employee Sues Claiming Failure To Accommodate 
 Religious Beliefs
  
 Courthouse News Service yesterday reported on a Title VII  religious 
 discrimination lawsuit filed in Texas federal district court by the former 
 director of marketing communications for a wireless network services company. 
 Plaintiff Jef Mindrup, a Buddhist, claims he was fired because he refused to 
 comply with a request by the company's co-founder that he add Biblical verses 
 to the company's daily newsletter. His lawsuit alleges that the company 
 fail[ed] to accommodate plaintiff on the basis of his religion by requiring 
 him to proselytize the Christian religion, a religion other than his own.
 
 View article...
 
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Re: letter opposing Mississippi RFRA

[Steven Jamar]

So KC does not think equality is part of our constitutional heritage.  That 
colors a lot of his claims privileging liberty above nearly all else and seeing 
it through the lens of competing liberty claims.  The argument about equality 
not being in the phrase “equal protection” strikes me as similar to the 
argument that there is no such thing as and no need for substantive due process 
to protect libety substantively.

Steve

--
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/

Climate change is the greatest market failure the world has ever seen . . ..

Nicholas Stern, former chief economist at the World Bank





On Mar 11, 2014, at 11:58 PM, K Chen tzn...@gmail.com wrote:

 The Civil War? The thing where our nation split apart and brother killed 
 brother on a then unimaginable scale due to longstanding issues baked into 
 the fabric (and constitution!) of our nation involving total enslavement of 
 certain people? And I am undervaluing its meaning because I gave a cryptic 
 answer? At first I assumed I had fallen into cross-fire between you and an 
 ideological opponent, but I was directly quoted, so I remain perplexed.
 
 Equality isn't actually the value upheld in Amendment XIV which reads in 
 relevant part All persons born or naturalized in the United States, and 
 subject to the jurisdiction thereof, are citizens of the United States and of 
 the state wherein they reside. No state shall make or enforce any law which 
 shall abridge the privileges or immunities of citizens of the United States; 
 nor shall any state deprive any person of life, liberty, or property, without 
 due process of law; nor deny to any person within its jurisdiction the equal 
 protection of the laws.
 
 If you'll pardon the digression into Lincoln-Douglas debate, equality is 
 not the highest moral value supported here, Amendment XIV proclaims equality 
 before the law. Not a whit about, for example, equal power in society, equal 
 wages, or equal access to the best teachers, or equal testing by those 
 teachers. Upholding equality has remarkably different outcomes for, say, the 
 handicapped, depending on how equal is interpreted. Equality is nebulous 
 concept and upholding it without an attempt at detail I have no idea what 
 good bad ideas or bad ideas are going to come about. (Liberty is also 
 susceptible, so my apologies if I fell into argument-by-catchphrase 
 somewhere).
 
 I'm not going to pretend I know exactly how the balance the interests of 
 religious believers and other marginalized persons. Like every lawyer, I find 
 it much easier to tear apart ideas submitted by others. I'm not even 
 convinced that the frame is a sensible one. A multicultural society like ours 
 is one where looking at both sides is an absurdity because there is in 
 reality many more sides, and I like it that way. What I mean by an equal 
 right to be wrong is protection of a diverse, plural society where many 
 people believe many things and they fight it out as free from the 
 interference of outside as we can live with. That seems to me both to be 
 right as a value, and right practically because, as many have noted, 
 bureaucrats, judges and legislators all have done a remarkably bad job of it.
 
 -KC
 
 
 On Tue, Mar 11, 2014 at 10:21 PM, Steven Jamar stevenja...@gmail.com wrote:
 Cryptic. Equal right to be wrong is a good start at what? That is not 
 taking equality seriously and horribly undervalues what the civil war meant 
 and that the 14th amendment is just as much a part of the constitution as the 
 1st and 5th.
 
 Sent from Steve's iPhone 
 
 
 On Mar 11, 2014, at 10:02 PM, K Chen tzn...@gmail.com wrote:
 
 I can get behind liberty.  Can you (and others) get behind equality?
 
 I try to speak for others only when asked. And my answer is maybe. Liberty 
 is hard to nail down, but equality is even more ephemeral. At the very 
 least, a diverse society where all citizens have an equal right to be wrong 
 seems like a good start.
 
 -KC
 
 
 On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote:
 I can get behind liberty.  Can you (and others) get behind equality?  Often 
 they work together, but sometimes they are in serious conflict.  State 
 sanctioned liberty to exclude and discriminate against denies equality to 
 some.  State sanctioned and enforced equality limits the liberty of some who 
 want to be free to exclude on liberty grounds.  State prohibition of 
 discrimination on the basis of race, gender, age, and religion mean in no 
 small part those people are at liberty to do things and to participate in 
 things they could not without the anti-discrimination laws — so it increases 
 their liberty (and equality) at the expense of some liberty of others who 
 want to treat some as less equal

Re: Scope of Academic Representations re: Pending Legislation

[Steven Jamar]

I do not find it all disturbing that academics engage in advocacy and do not 
present their positions in an objective, neutral way — or in a way that some 
others might think objectivity and neutrality require.  Nor do I object to 
their being advocates, tailoring arguments to the particular audience, making 
ones that are less controversial but might be more effective.  Nor do I think 
that any of us needs to or even should disclose to this list our various 
advocacy activities.  

I think our obligation in scholarship is somewhat, but not entirely, different. 
 If we are describing the law as it is, we should strive to be as clear and 
fair and objective as possible and clearly disclose where we depart from that 
standard.  But much scholarship is not about the law as it is, but rather is 
about the law as it could be and to some should be.  For that all that we 
should do is be clear that we are advocating for what should be and not 
describing what is.

We also should be fair in our use of precedents and try to be fair in our use 
(or more often “abuse”) of history.  But that is harder due to complexity and 
conflicting readings and sources.

Even in scholarship we can be advocates, but as professors and scholars we a 
have an obligation to be clear about when we are doing what.

-- 
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/

Example is always more efficacious than precept.

Samuel Johnson, 1759




On Mar 12, 2014, at 2:40 AM, jim green ugala...@gmail.com wrote:

 I find it very disturbing that Laycock, et. al. basically acted as cheer 
 leaders for a bill they knew was controversial, to say the least, among their 
 fellow scholars.  The analysis proffered to the legislature did not mention 
 the potential non-discrimination hazards at all - that issue was completely 
 ignored - in fact, there were no downsides mentioned at all.  In this 
 political climate, this sort of intervention seems naive at best - cynics 
 might suspect more base motives.  (See 
 http://www.peachpundit.com/wp-content/uploads/2014/02/RFRA-Letter.pdf).
 
 As for the constant appeals hearkening back to the unity of the post-Smith 
 right-left coalition that rushed through RFRA, if anything, history has shown 
 that maybe more dissent and reflection during that time would have revealed 
 that these tensions were there all along.  In the rush to paint Smith as some 
 sort of historical aberration, there seems to be a tendency to canonize the 
 scholarly response as symbolized by RFRA.Seems a bit Whiggish to me...
 
 ---Jimmy Green
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Re: letter opposing Mississippi RFRA

[Steven Jamar]

I appreciate Kevin Chen’s clarification that he does not consider equality 
foreign to U.S. consitutional jurisprudence.  I agree with him that equality is 
not easy to corral and that equality is context dependent, like every other 
aspect of law.

There are procedural aspects of equality and substantive aspects of equality 
and both matter and neither can be achieved perfectly, if that is even a 
meaningful concept.  The same is true for liberty.  Anytime someone is 
restricted from doing something, that is a restriction on “perfect” liberty — 
hence the constitution creates a system of ordered liberty.

There is no “pure equalty” that demands anything, either as legal concept or a 
political concept.

As to the way equality is used — it may be used too often with a substantive 
goal to homogenize, though I’ve never seen it used that way in any 
constitutional argument, political argument, or school setting, but maybe it 
actually is used that way — though how often is “too much” is perhaps 
interesting.

As to equality is best sought for those similarly situated” — sort of begs the 
question, doesn’t it?  If they are already “similarly situated”, are they not 
already “equal” for at least some values of “equal” and “similarly situated”?  

But, as we are straying far from the topic, I will leave it there.  

As to whether “religious believers are not similarly situated,” that is surely 
true insofar as the constitution provides special protection for them and RFRAs 
do as well.  The questions seem to be what subtantive benefits should religious 
believers get; when should they be able to opt out of something; when should 
their liberty interest be limited by equality interests or the interests in 
general welfare or the liberty interests of others?

Steve

-- 
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/

Nothing worth doing is completed in our lifetime, 
Therefore, we are saved by hope. 
Nothing true or beautiful or good makes complete sense in any immediate context 
of history; 
Therefore, we are saved by faith. 
Nothing we do, however virtuous, can be accomplished alone. 
Therefore, we are saved by love. 
No virtuous act is quite as virtuous from the standpoint of our friend or foe 
as from our own; 
Therefore, we are saved by the final form of love which is forgiveness. 

Reinhold Neibuhr




On Mar 12, 2014, at 10:29 AM, K Chen tzn...@gmail.com wrote:
[snip]

 Pure equality demands that the terrible scores of all of these children stand 
 without help. [snip]

 The way that the word equality is too often used is as a way to homogenize, 
 and it makes the world more equal in only the worst ways, and less equal in 
 all the others. Equality is best sought for those similarly situated, and 
 religious believers are not similarly situated.
[snip]

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Re: letter opposing Mississippi RFRA / FDA labeling for ella

[Steven Jamar]

I think it is difficult only because of the impossibly long, subjective, 
untestable stretch of the religious (not legal) complicity theory.  If there is 
.1% chance of something happening, does that make one complicit in it?  Does my 
paying taxes make me complicit in the 30,000 annual deaths on tax-funded 
highways?  

There is no legally congizable end to the complicity theory — leaving the 
courts to simply adopt whatever the adherent says it is.

I hope this theory is soundly and completely rejected.

And I generally support accommodations — even for the anti-gay photographer (I 
would do it not on religious grounds, but on speech grounds and on the grounds 
of the size of the business —  have sympathy for the solo photographer that I 
do not have for Sears.

Steve

-- 
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/
Lay not up for yourselves treasures upon earth, where moth and rust doth 
corrupt, and where thieves break through and steal; but lay up for yourselves 
treasures in heaven, where neither moth nor rust doth corrupt, and where 
thieves do not break through nor steal. For where your treasure is, there will 
your heart be also. 

Matthew 6:19-21





On Mar 11, 2014, at 8:18 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
wrote:

 This is much more difficult than Sandy suggests.
  
 The skyscraper builder doesn’t accomplish its purpose through the death of a 
 worker; that is, the worker’s death does not advance the building of the 
 skyscraper. In fact, the death is likely to hinder the work. It is an 
 unintended and unwanted side effect, one that the builder will take 
 precautions against, even though the builder knows that the precautions will 
 not prevent all accidental deaths on the project.
  
 By contrast, depending on how you define the purpose of a drug like ella, it 
 accomplishes its purpose when it prevents – however rarely – implantation of 
 a fertilized egg/embryo. If the person taking the drug simply doesn’t want to 
 be pregnant, then prevention of implantation advances that purpose. My guess 
 is that most women who take it – and most doctors who prescribe it, to the 
 extent such drugs must be prescribed – won’t think it matters to any 
 substantial degree whether the drug prevents fertilization or prevents 
 implantation. (I don’t think I would, in their shoes, but I can’t be certain 
 of it.) One who has the view that a fertilized egg/pre-implantation embryo is 
 a very new human person entitled to life (which does not happen to be my view 
 but is the view of people for whom I have great respect) would quite 
 reasonably be morally troubled by being involved in the provision of drugs 
 which accomplish their purpose, in some cases, through the killing of that 
 very new person. The prevention of implantation/killing of the very new 
 person is not an unwanted side effect; when it happens, rarely as that may 
 be, it accomplishes the intended result. It is not, to use Sandy’s term, an 
 “untoward” event.
  
 Suppose there was a test that could determine whether an egg had been 
 fertilized. Does anyone think that most women who use ella (or doctors who 
 prescribe it) would take (or  order) the test? There is a willingness, one 
 that I perfectly understand and do not personally find immoral (or at least 
 seriously immoral), to prevent implantation, in the event that an egg has 
 already been fertilized. Others find this tantamount to a willingness to kill 
 an innocent child for the purpose of preventing or terminating (depending on 
 your terminology and point of view) a pregnancy. If I am not willing to take 
 this seriously, then I am not treating them with the respect that they 
 deserve.
  
 List members may disagree with this analysis, but again this is much more 
 difficult than Sandy suggests.
  
 Mark
  
 Mark S. Scarberry
 Professor of Law
 Pepperdine Univ. School of Law
  
  
  
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kim Colby
 Sent: Tuesday, March 11, 2014 3:29 PM
 To: Law  Religion issues for Law Academics
 Subject: FDA labeling for ella
  
 Just to provide some factual information, here is the United States Food and 
 Drug Administration’s approved patient labeling for ella, which states: “It 
 is possible that ella may also work by preventing attachment (implantation) 
 to the uterus.” 
 http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf 
 (last visited March 11, 2014).
  
 The FDA makes this point at two places, on pp. 5  9: 
  
 “12.1 Mechanism of Action  When taken immediately before ovulation is to 
 occur, ella postpones follicular rupture.  The likely primary mechanism of 
 action of ulipristal acetate for emergency contraception is therefore 
 

Re: letter opposing Mississippi RFRA

[Steven Jamar]

I can get behind liberty.  Can you (and others) get behind equality?  Often 
they work together, but sometimes they are in serious conflict.  State 
sanctioned liberty to exclude and discriminate against denies equality to some. 
 State sanctioned and enforced equality limits the liberty of some who want to 
be free to exclude on liberty grounds.  State prohibition of discrimination on 
the basis of race, gender, age, and religion mean in no small part those people 
are at liberty to do things and to participate in things they could not without 
the anti-discrimination laws — so it increases their liberty (and equality) at 
the expense of some liberty of others who want to treat some as less equal.

It is not an easy calculus nor is consistency possible.   But there are values 
in the constitution beyond liberty and free exercise.

Steve


-- 
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/


I don't know whether the world is full of smart men bluffing
or imbeciles who mean it. 
-- Morrie Brickman

On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote:

  I indulge in the fantasy that liberty is a founding belief that we all can 
 believe in and come to reasonable compromise but reality continuously 
 disabuses me of the notion.

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Re: letter opposing Mississippi RFRA

[Steven Jamar]

To shift Sandy’s tort analogy — if you walk the streets of NYC at rush hour you 
have to expect to get jostled by the crowd and not every touching is therefore 
an actionable battery.  When Hobby Lobby and Notre Dame choose to walk the 
streets, they assume the risk of some jostling.

Steve

-- 
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/

--
Become the change you seek in the world.
-- Mahatma Gandhi.





On Mar 11, 2014, at 3:44 PM, Levinson, Sanford V slevin...@law.utexas.edu 
wrote:

 Many thanks to Mark for this extremely interesting link. The article 
 concludes with the following:
  
 If you can't be absolutely sure the drugs don't block implantation, what 
 probability of killing a human being would you accept? said Dr Jane Orient, 
 an internist in Tucson, Arizona, and spokeswoman for the libertarian, 
 anti-abortion Association of American Physicians and Surgeons, which joined 
 the anti-emergency contraceptive brief.
  
  
 I confess that I am left unpersuaded by such arguments.  The first thing one 
 learns in first-year torts—and I have often said that the course I took from 
 Marc Franklin some 44 years ago was the best course I’ve ever had anywhere on 
 any subject—is that we, as a society, constantly “assume the risk” that 
 untoward things will happen to statistical people when, eg., building 
 bridges, transporting goods across country, etc., etc., etc.  No one who has 
 even a modicum of sympathy with Calabresi’s The Cost of Accidents, let alone 
 the more hard-core versions of law and economics, would ever take seriously 
 an argument that “if you can’t be absolutely sure that no one will die when 
 building a tunnel or a skyscraper, then we should cancel the project”?  We 
 accept the “probability of killing a human being” all the time, every single 
 day.  Would we allow, a la Thomas v Indiana, an employee for a trucking 
 company to refuse to load truck (or fill the tanks with gas) because it is 
 altogether predictable that some innocent lives will be lost as a result?  As 
 always, of course, “we” have no patience with such moral fastidiousness when 
 the payment of taxes is at issue.  We’re all conscripted into the de facto 
 sacrifice of innocent lives thanks to one or another state policy (including, 
 most obviously, the use of force).   If, of course, one determined that a 
 particular drug operated to “kill human beings” frequently, that would be 
 another matter.  One would still like to see solid statistics instead of very 
 bad philosoph-101 arguments like Dr. Orient’s.
  
 sandy
  
  
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark R. Killenbeck
 Sent: Tuesday, March 11, 2014 2:27 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: letter opposing Mississippi RFRA
  
 On the science, see the Sharon Begley piece in Reuters, “U.S. top court cases 
 highlights unsettled science in contraception,” noted by Howard Bashman in 
 How Appealing:
  
 http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311
  
  
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfLevinson, Sanford V
 Sent: Tuesday, March 11, 2014 2:02 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: letter opposing Mississippi RFRA
  
 I almost apologize for bringing this up, but I think that a key phrase in 
 Mark’s post is “they sincerely think the drugs they must provide will 
 sometimes cause abortions.”  It is not simply Marty’s point that they are not 
 being forced to provide them (any more than would be the case, of course, if 
 they were provided through ordinary taxes), but, rather the “sincerely 
 think.”  I am not at all clear why beliefs about empirical matters, albeit 
 sincere, should be dispositive if there is genuine evidence one way or the 
 other.  The drugs in question either will or will not “sometimes cause 
 abortion.”  To be sure, there may be a conflict about this, but I fail to be 
 convinced that we should necessarily defer to a small minority of outliers in 
 the scientific community.  If we’re not talking about “outliers,” of course, 
 that’s a different matter.  I take it that the current trial in Michigan is 
 very much about the deference to be paid outliers.  (I am fully aware, of 
 course, that occasional “outliers” turn out to be correct, “ahead of their 
 time” in battling conventional wisdom.  But I suspect that such “success 
 stories” are few and far between and that most outliers are more likely to be 
 cranks or ideologues.  (Consider someone who believes we have a significantly 
 defective Constitution, and that we need a new constitutional convention to 
 correct the problems J)
  
 Things get 

Re: letter opposing Mississippi RFRA

[Steven Jamar]

Still complicit--the employer knows the wages will sometimes be spent on things 
the employer dislikes just as much as the employer knows some employees will 
use insurance for things the employer dislikes. If the theory is complicity, 
that line is a pretty lame one.

Sent from Steve's iPhone 


 On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote:
 
 Because the employee's paycheck is a blank check.  The employee can do 
 whatever they want with it because, as part of the salary, there are no 
 limits on what the employee can or can't spend the money on.  However, 
 insurance is not a blank check.  The policy specifies what it is covering and 
 what it is not covering and the employer, in determining the range of the 
 benefits they offer, is fully involved in the decision of what is being 
 covered and is fully accountable to his or her God for that decision.
  
 Brad
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
 Sent: Tuesday, March 11, 2014 7:36 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: letter opposing Mississippi RFRA
  
 I have a question for those who have religious beliefs opposed to the 
 contraception mandate. I do not mean this question as a provocation, but 
 rather in the interest of helping me to understand the problem. Suppose a 
 religious employer knows with 100% certainty that an employee will spend a 
 small amount of her income on contraception. I take it that this does not 
 violate a religious belief. How is that different from directing a percentage 
 of the employee's salary towards health insurance, which will cover 
 contraception?
  
 
 ___
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Re: letter opposing Mississippi RFRA

[Steven Jamar]

Cryptic. Equal right to be wrong is a good start at what? That is not taking 
equality seriously and horribly undervalues what the civil war meant and that 
the 14th amendment is just as much a part of the constitution as the 1st and 
5th.

Sent from Steve's iPhone 


 On Mar 11, 2014, at 10:02 PM, K Chen tzn...@gmail.com wrote:
 
 I can get behind liberty.  Can you (and others) get behind equality?
 
 I try to speak for others only when asked. And my answer is maybe. Liberty 
 is hard to nail down, but equality is even more ephemeral. At the very least, 
 a diverse society where all citizens have an equal right to be wrong seems 
 like a good start.
 
 -KC
 
 
 On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote:
 I can get behind liberty.  Can you (and others) get behind equality?  Often 
 they work together, but sometimes they are in serious conflict.  State 
 sanctioned liberty to exclude and discriminate against denies equality to 
 some.  State sanctioned and enforced equality limits the liberty of some who 
 want to be free to exclude on liberty grounds.  State prohibition of 
 discrimination on the basis of race, gender, age, and religion mean in no 
 small part those people are at liberty to do things and to participate in 
 things they could not without the anti-discrimination laws — so it increases 
 their liberty (and equality) at the expense of some liberty of others who 
 want to treat some as less equal.
 
 It is not an easy calculus nor is consistency possible.   But there are 
 values in the constitution beyond liberty and free exercise.
 
 Steve
 
 
 -- 
 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/
 
 
 I don't know whether the world is full of smart men bluffing
 or imbeciles who mean it. 
 -- Morrie Brickman
 
 On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote:
 
  I indulge in the fantasy that liberty is a founding belief that we all can 
 believe in and come to reasonable compromise but reality continuously 
 disabuses me of the notion.
 
 
 ___
 To post, send message to Religionlaw@lists.ucla.edu
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Re: Final post on discrimination/religious liberty issue

[Steven Jamar]

I hope Greg is right about the first category, but many anti-gay advocates want 
a blanket exclusion based on their animus toward gays that would cover any 
person engaged in business, even Hobby Lobby.

As to the second category — I don’t see those two parts as one category.  The 
first subcategory, no legal action for hostile, agressive reactions/pro-active 
statements based on another’s status would be protected by freedom of 
expression. I don’t think anyone disagrees with that — or at least few on this 
list would agree with that, I hope.

As to the second sub-category — a business restricting its business to a 
segment of the population and thereby excluding others who lack that 
characteristic — that is far more problematic as a category and seems to 
overlap heavily with the first category.  I agree with the idea of not making a 
grocer carry any particular products or to stay open any particular hours.  But 
it gets dicey when the clientele are similarly restricted. “I will not serve 
gays” is “I will not serve gays” no matter what words are used.

As to licensed professionals — lawyers, doctors, pharmacists at the very least 
— to be able to discriminate against clients because of protected 
characteristics — race, gender, sexual orientation, ethnicity, skin color, 
religion, age — well that seems quite problematic.  The public defender says 
“no, I won’t defend women.”  The court-appointed attorney refuses to represent 
a client because not a co-religionist.  The pharmacist who won’t dispense legal 
drugs.  The doctor who won’t treat patients because of status.  These are all 
very, very problematic to me.  In metropolitan areas where there are in fact 
ready options, or when it is a matter of competence (I would not be competent 
as a criminal defense lawyer or juvenile lawyer or immigration lawyer or 
admiralty lawyer (I could become competent, but I am surely not now competent 
in those areas)) — that is a different matter.  Or where a lawyer restricts her 
practice to one area of the law — that is ok.  Or a physician who is a 
specialist restricting practice to one or a limited number of areas — that is 
ok.  But if the restriction is “Not women; not gays; not blacks” well, that is 
seriously problematic. As would be a physician refusing to perform an emergency 
abortion to save the woman’s life when the physician is competent to do so and 
the only one around.

I think we do run into speech and associational concerns that color what the 
lawyer especially may or may not do or clients he or she may or may not take.  
But it is harder to justify those same decisions in non-speech (non-mouthpiece) 
situations like pharmacists and doctors.

Greg is right that liberty and equality are often in tension and sometimes at 
odds with each other in terms of the results that would obain if we tilt one 
way or another.  But they are also sometimes in line with each other.  
Exclusion from publicly available goods or services such as hotels, rooms, 
cakes, doctors, lawyers, drugs, and so on because of one’s status as a woman, 
black, asian, white, homosexual, Catholic, Jew, Protestant, Muslim, or whatever 
is not only a denial of equality but also a denial of the liberty of those 
people.  I’ve not seen that recognized by those advocating the right to exclude 
gays from goods or services.

I would agree that the closer the thing comes to compelled speech, the stronger 
the claim to having special ability to discriminate against others becomes.  I 
would also agree that excluding the truly small Mom and Pop” store or the 
person renting a single room in her house makes good policy sense, though I’m 
unconvinced that religious motivations for doing so are justifiable as a matter 
of constitutional liberty.

So, while there are some areas of possible agreement, I fear overall Greg is 
too sanguine, and despite his attempt to paint with smaller brushes and smaller 
strokes, his brush of religious exemption is still too broad and damaging.

There are competing interests — the religious excluder, the person seeking 
inclusion, societal views on the world it wants to create — all need to be 
considered.  What I see when I look at the picture is society granting religion 
and religious adherents huge exemptions and accommodations to the injury of 
other general equality interests of society and to the claims of those seeking 
inclusion.  The fact that those accommodations and exemptions exist shows that 
society also values diversity and liberty and will allow damage to equality 
interests and to individual inclusion interests in order to protect those other 
religious interests of diversity, tolerance, and liberty, even as they limit 
others’ experience of tolerance, diversity, and liberty.

Our constitution includes equality now.  It is not just about liberty.  And the 
claim that one trumps the other and should always or generally trump the other 
is ahistorical and policy-wise wrong.

Steve


-- 
Prof. 

Re: Whispering in the ear of Jan Brewer....

[Steven Jamar]

Let’s think about how this law would operate.  A gay person walks into the 
store and is denied service.  Now, this gay person needs to sue to prove the 
store improperly refused him service because he is gay.  So he needs to hire a 
lawyer, pay the lawyer, and spend a lot of time and effort to show that he was 
denied service because he was gay.

The store now defends, and only needs to say “I have a sincerely held belief 
that requires that I not be complicit in supporting gays in any way and serving 
them would make me complicit.”

How does the plaintiff negate that claim as to sincerity or as to the belief in 
the complicity-with-sin theory?  How does one judge the substantiality of the 
impact of this claim on the religious exercise of the defendant?  If one buys 
the sincerity and the complicity theory, isn’t doing anything that the 
defendent (not a reasonable person, not an ordinary person, but this single 
individual) going to be, according to this theory “substantial.”  Or at least 
isn’t that the argument being made by those supporting this extension?

And since that is nearly impossible to negate factually or evidentiarily 
(imagine the discovery for this and the evidence for a jury to consider), the 
burden is effectively not on the defendant to prove much of anything, but 
rather on the plaintiff to prove not only that the discrimination did in fact 
take place but now must prove that the state (not the plaintiff) has a 
compelling interest to stop this sort of discrimination.  But isn’t that last 
bit really an either/or — either this interest is compelling or it is not.  And 
no court has yet held that it is a compelling interest. 

Now, if a court does hold there is a compelling interest in stopping 
discrimination against gays, then the whole exercise of the law intended to 
permit this discrimination is for naught.  If a court holds there is no such 
compelling interest, then the case turns on the naked assertion of the 
sincerity of belief by the defendant.

So I think the  characterization of how this law would have worked and its 
intent and effect as described in the letter is indeed disingenuous.  The 
proposed law was not really just about protecting religious freedom, it was 
about permitting some people to discriminate against gays by all but immunizing 
the defendants from suit.

The disconnect between theory and practice is dramatic here, and it matters.

Steve





-- 
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/

There is a cult of ignorance in the United States, and there always has been. 
The strain of anti-intellectualism has been a constant thread winding its way 
through our political and cultural life, nurtured by the false notion that 
democracy means that my ignorance is just as good as your knowledge.

Isaac Asimov  in  a column in Newsweek  (21 January 1980)






On Mar 1, 2014, at 3:14 AM, jim green ugala...@gmail.com wrote:

 Interesting political intervention from a group of list members who describe 
 themselves as: 
 
 Some of us are Republicans; some of us are Democrats. Some of us are 
 religious; some of us are not. Some of us oppose same-sex marriage; some of 
 us support it. Nine of the eleven signers of this letter believe that you 
 should sign the bill; two are unsure. But all of us believe that many 
 criticisms of the Arizona bill are deeply misleading.
 
 Unless you followed the politics of gay rights very closely, you would never 
 know that this core group of activists/scholars have a low threshold for 
 outrage as they bombard Governors, legislatures, City Councils, etc. with 
 these parade of horribles whenever same sex marriage (who are we kidding - 
 anything to do with gay rights as proven by this instance) is debated.  Most 
 of their letter campaigns fall on deaf ears and they have been criticized by 
 others for presenting a very skewed legal analysis.  It was heartening when 
 recently (seriously thanks for the help but what took you so long) another 
 group of law professors openly criticized them for their errors and suggested 
 working together in the future to offer a more balanced presentation of the 
 law in this area.  The responses I have seen so far don't offer much hope 
 that they will change their tactics.
 
 What is surprising in this instance is the the explicit right wing memes of 
 liberal media bias and sinister gay mafia oppressing poor powerless 
 christian martyrs are front and center without the usual pseudo-academic pas 
 de deux.  ADF certainly know how to work the outrage buttons of the right 
 wing blogosphere and the knives were out for this one.  This is pure 
 political spin on what we were assured was a minor, technical bill that would 
 in no way further discrimination against gays  lesbians.  I always 

Re: Definition of discrimination.

[Steven Jamar]

Maybe I’ve been wrong about the complicity theory after all.  Those who are 
condemning homosexuality know that at least some people are prone to act in a 
violent way against gays and so by condemning homosexuality they are complicit 
in incidents (and far, far worse) of violence against gays.  So, to avoid being 
complicit, they should not state their views, right?  If they are being 
consistent about the complicity with sin problem.  Huh.  Who knew.

No.  The complicity theory is not legally tenable, whatever stature it may have 
among philosophers and religious moral theoreticians.

Steve


-- 
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/

I do not at all resent criticism, even when, for the sake of emphasis, it for 
a time parts company with reality.

Winston Churchill, speech to the House of Commons, 1941




On Mar 1, 2014, at 8:05 AM, Jean Dudley jean.dud...@gmail.com wrote:

 
 On Feb 28, 2014, at Fri, Feb 28,  7:11 PM, Sisk, Gregory C. 
 gcs...@stthomas.edu wrote:
 
 Now what these two evangelical Christians experienced was plainly 
 “discrimination.”
 
 I’m not sure it was.  While I’m not an attorney of any stripe or ilk, I’d say 
 that what those evangelists experienced was (verbal) antagonism.  And while 
 it was indeed vile and despicable, it is protected under free speech, if I’m 
 not mistaken, provided no one actively threatened them with bodily harm. 
 
 Discrimination would have occurred if the Jewish shop owner had indeed 
 refused to serve them because they were evangelists, or at least 
 discrimination in the legal sense, if I understand it.  If someone had begun 
 beating them while yelling anti-evangelist epithets, that would have been a 
 hate crime or possibly religiously motivated assault, certainly?  
 
 Discrimination is difficult to pin down; but certainly denying publicly 
 offered goods and services for reasons other than an inability to pay is 
 discrimination, isn’t it?  
 
 Once, while leaving the local lesbian watering hole in Providence, RI, a car 
 full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me.  My 
 immediate response was “I’m a walking dyke. I do my fucking at home!” 
 
 At that point one of them threw a glass bottle which smashed many yards away 
 from me.  
 
 Discrimination?  They didn’t deny me from using public roads, but assault?  
 Maybe.  That bottle was more threat than assault, I think.  
 
 Was I scared, in fear of my life?  You better believe it, in spite of my rare 
 quick response to their taunt.  Luckily they sped off, and I was able to get 
 to my car and go home without any physical damage. But common self 
 preservation told me that drunk young men are dangerous; that is a lesson I 
 learned from Matthew Sheppard.  My prescience was justified by the 
 badly-aimed glass bottle.  
 
 So tell me, list members, was I “discriminated” against?  Was I assaulted?  
 At what point did their behavior cross from protected speech to criminal 
 activity?  Did it? 
 
 I never did tell my story to the police.  I’d already been told that the 
 Providence police turned a blind eye on such things, and even worse things 
 routinely.  How could I get justice when I didn’t even have a license plate 
 number or descriptions of the men? 
 
 All the best,
 Jean. 
 
 
 ___
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Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

[Steven Jamar]

 protections are another matter, 
 with their scope mostly determined by textual analysis, determination of 
 legislative intent, etc. 
 
 We need to find a principled approach to interpretation of RFRAs that makes 
 them inapplicable to trespass suits but applicable some other kinds of 
 suits. It's possible to take situations case-by-case and ask whether 
 legislators would have thought a RFRA would apply, but it would be better to 
 have a guiding principle, right?
 
 Mark
 
 Mark S. Scarberry
 Pepperdine University School of Law
 
 
 
 
 Sent from my iPad
 
 On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edu wrote:
 
 It is not judicial enforcement as such. In contract cases, the challenged 
 rule comes from the contract. Shelley v. Kramer aside, enforcing the 
 contract does not make the provisions of the contract state action.
  
 But when the challenged rule is written by the state, whether in a statute 
 or a common law rule, the burden is imposed by the rule of law. That rule 
 of law is the relevant state action.
  
 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 Steven Jamar
 Sent: Thursday, February 27, 2014 10:49 AM
 To: Law Religion  Law List
 Subject: Re: Protecting Religious Conscience from Private Suits -- How far 
 do we go under the Const and under RFRAs?
  
 I don’t think state action is as settled as Chris’s post implies.  States 
 enforce contracts, for example, and other private rights without the court 
 action becoming state action limited by the 14th Amendment.  Surely many 
 court actions are state action for constitutional rights purposes, but 
 perhaps not quite as categorically or broadly as Chris’s post states.
  
 Steve
  
 
 -- 
 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/
 
 
 There is a cult of ignorance in the United States, and there always has 
 been. The strain of anti-intellectualism has been a constant thread winding 
 its way through our political and cultural life, nurtured by the false 
 notion that democracy means that my ignorance is just as good as your 
 knowledge.
  
 Isaac Asimov  in  a column in Newsweek  (21 January 1980)
  
  
  
  
  
 On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edu wrote:
 
 
 “Can you point to specific free exercise cases where the First Amendment's 
 free exercise clause was applied by the Supreme Court to a dispute between 
 private parties?  There must be state action.  Note Hosanna-Tabor was 
 against the EEOC.”
  
 Marci’s contention is an interesting one.  The strength of it can be tested 
 pretty easily.  How many people think that Hosanna-Tabor would have been 
 decided differently if the EEOC had not intervened and the case was 
 captioned Hosanna-Tabor v. Perich?
  
 But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 
 (1960).  Four years before NYT v. Sullivan (!), the Court says that the 
 Religion Clauses of the First Amendment apply to disputes between private 
 parties.  See id. (“It is established doctrine that ‘[i]t is not of moment 
 that the State has here acted solely through its judicial branch, for, 
 whether legislative or judicial, it is still the application of state power 
 which we are asked to scrutinize.’”) (quoting NAACP v. Alabama and Shelley 
 v. Kraemer).
  
 This has been settled law for over fifty years.  The arguments that RFRA 
 and RLUIPA are only good against the government lie in the particularities 
 (and, I think, unintended particularities) of their texts.  The general 
 principles of state action are well settled.
  
 Best,
 Chris
 ___
 Christopher C. Lund
 Associate Professor of Law
 Wayne State University Law School
 471 West Palmer St.
 Detroit, MI  48202
 l...@wayne.edu
 (313) 577-4046 (phone)
 (313) 577-9016 (fax)
 Website—http://law.wayne.edu/profile/christopher.lund/
 Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
 
 
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 can 
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Re: bigotry and sincere religious belief

[Steven Jamar]

I get that religious people do not want to be discriminated against.  Indeed, 
they have lots of protections in the laws already protecting them from 
discrimination in employment, public accomodations, and so on.  And they have 
lots of special treatment in the form of exemptions from laws that constrain 
everyone else.  And they have RFRAs — state and federal — no other group has 
that sort of protection.

But these highly-protected, coddled people want even more — they want to deny 
these rights to homosexuals.  They want to discriminate against people on the 
basis of sexual orientation.  They want to be free to ignore general societal 
laws that would require them to ignore the sexual orientation of students, 
employees, customers, etc. 

And then they turn around, after all the exceptions, exemptions, 
accommodations, special treatment, protections from discrimination that they 
enjoy, and claim that anyone who does not agree to give them even more, or 
perhaps more accurately described as ever more” special treatment.  And not 
because they are part of a religious order or organization, and not because 
anyone is forcing them to engage in business or to do anything except not 
discriminate — but because of a distaste for someone else’s sexual orientation 
and a religious theory of complicity with evil — thus making all homosexuals 
being evil and tools of the devil.  

And not only that, they claim that those of us who think that religious 
adherents should not get a unit veto on all general welfare and social justice 
and human rights legislation and norms are in fact the true bigots for not 
giving them everything.

Really!

You’d think that religious people were being persecuted and hounded and locked 
up to hear the hew and cry being raised, when in fact, all that is being done 
is to say — secular and sacred are separate in our constitutional system — and 
that those who wish to live their values must then find ways to do so that do 
not conflict with established secular social justice norms.  

I get that they don’t like being equated with racial bigots of decades past and 
present.  But, by their fruits shall you know them,” — can a religious 
motivation ever expunge the taste of the bitter fruit being pushed?  
Status-based discrimination is a bitter fruit indeed and it is what is being 
pushed by some religious adherents.

No one is requiring them to like homosexuality, to become homosexual, to 
befriend a homosexual (though I suspect Jesus would have something to say about 
each of these that some Christians would not like to hear), or to do anything 
at all except to treat them as people entitled to equal rights and dignity.

This is indeed about animus toward homosexuals —even if it is sourced in or 
clothed in religious garb and even if that source is genuine and sincerely 
believed based on something other than culturally received bigotry.

We as a society can make judgments about the proper bounds of treatment of 
everyone and do not need to exempt people from respecting the worth and dignity 
of each person just because of a religious belief or the even more tenuous 
complicity theory.

I kinda like this wikipedia definition of bigotry:

Bigotry is the state of mind of a bigot: someone who, as a result of their 
prejudices, treats or views other people with fear, distrust, hatred, contempt, 
or intolerance on the basis of a person's opinion, ethnicity, race, religion, 
national origin, gender,gender identity, sexual orientation, disability, 
socioeconomic status, or other characteristics.

“as a result of their prejudices” — does the source of the prejudice, even if 
it is sincerely held religious beliefs make it any less of a prejudice?

Steve



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


The aim of education must be the training of independently acting and thinking 
individuals who, however, see in the service to the community their highest 
life achievement.

Albert Einstein


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Re: Accommodation vs. the complicity theory

[Steven Jamar]

So do I Mark, so do I.  Draw me the principled line, please.  The state cannot 
stop anyone from believing whatever they want, but the people can limit the 
exercise of those beliefs for public good purposes — including most strongly, 
surely, public health reasons.  And, when it comes to such attenuated theories 
as “complicity” through providing health insurance that some people might or 
might not use, based on their own religious beliefs — that is a giant step too 
far.

Steve

-- 
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/

A strange game.  The only winning move is not to play.
Joshua






On Feb 22, 2014, at 12:58 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
wrote:

 I really have a hard time listening to a claim that RFRA supporters think 
 that being required to not abuse children [is] an invasion of religious 
 liberty.
 
 Mark
 
 Mark S. Scarberry
 Pepperdine University School of Law
 
 Sent from my iPad
 
 On Feb 21, 2014, at 2:46 PM, Steven Jamar stevenja...@gmail.com wrote:
 
 I was, early on, generally a support of RFRA and thought the Smith rule went 
 too far.  I thought that the substantial burden would work out much as it 
 has — courts have been reluctant to find a substantial burden very easily.
 
 But in the last decade, and in particular with the response of some 
 religionites to laws prohibiting discrimination against gays, and 
 pharmacists refusing to dispense legal drugs, and others claiming to be 
 exempt from straight-up commercial regulation like the ACA — well, I am 
 starting (gag) to think Scalia’s approach was more right than RFRA after 
 all.  Further proof, I guess, that even blind squirrels can find nuts 
 sometimes.
 
 We have shifted heavily to an accommodationist model, away from a 
 separationist model, away from a same-rules-for-everyone model toward a unit 
 veto by religionites. 
 
 Since when is a tax on doing business a substantial burden?  Since when is 
 paying a tax, some of which goes to fight wars, “complicity”?  Since when is 
 being required to not abuse children an invasion of religious liberty?  
 Since when is requiring minimum wage compliance, OSHA compliance, 
 environmental standards compliance causing “complicity”?  
 
 Here’s hoping the complicity theory loses bigtime.
 
 Accommodating practices is one thing — accommodating all sorts of religious 
 beliefs under a “complicity” theory — well, I think that was properly 
 rejected in Reynolds in 1878.
 
 Steve
 
 
 -- 
 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/
 
 
 
 Nonviolence means avoiding not only external physical violence but also 
 internal violence of spirit. You not only refuse to shoot a man, but you 
 refuse to hate him.
 
 Martin Luther King, Jr.
 
 
 
 
 
 ___
 To post, send message to Religionlaw@lists.ucla.edu
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Accommodation vs. the complicity theory

[Steven Jamar]

I was, early on, generally a support of RFRA and thought the Smith rule went 
too far.  I thought that the substantial burden would work out much as it has — 
courts have been reluctant to find a substantial burden very easily.

But in the last decade, and in particular with the response of some 
religionites to laws prohibiting discrimination against gays, and pharmacists 
refusing to dispense legal drugs, and others claiming to be exempt from 
straight-up commercial regulation like the ACA — well, I am starting (gag) to 
think Scalia’s approach was more right than RFRA after all.  Further proof, I 
guess, that even blind squirrels can find nuts sometimes.

We have shifted heavily to an accommodationist model, away from a separationist 
model, away from a same-rules-for-everyone model toward a unit veto by 
religionites. 

Since when is a tax on doing business a substantial burden?  Since when is 
paying a tax, some of which goes to fight wars, “complicity”?  Since when is 
being required to not abuse children an invasion of religious liberty?  Since 
when is requiring minimum wage compliance, OSHA compliance, environmental 
standards compliance causing “complicity”?  

Here’s hoping the complicity theory loses bigtime.

Accommodating practices is one thing — accommodating all sorts of religious 
beliefs under a “complicity” theory — well, I think that was properly rejected 
in Reynolds in 1878.

Steve


-- 
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/

Nonviolence means avoiding not only external physical violence but also 
internal violence of spirit. You not only refuse to shoot a man, but you refuse 
to hate him.

Martin Luther King, Jr.




On Feb 21, 2014, at 4:54 PM, Michael Worley mwor...@byulaw.net wrote:

 Yes, but the tax in and of itself is a burden on Hobby Lobby.
 
 
 On Fri, Feb 21, 2014 at 2:35 PM, Marty Lederman lederman.ma...@gmail.com 
 wrote:
 Actually, FWIW, Hobby Lobby is not required to provide contraception, or even 
 to provide reimbursement for its purchase.  See 
 http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
 

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Re: RLPA history for RLUIPA

[Steven Jamar]

They are not forced into that choice except by their choice of beliefs.  They 
can do other things.  They have no right to run a business in opposition to 
established public policy.  If they can win the political battle and get 
specific exemption in the legislation — ok.  But what if the religionist 
believes in the imminence of the second coming and wants to hasten it by 
causing global warming and war and disruption and believes that all actions to 
the contrary — including environmental protection, peace-keeping acitons, 
policing crime, etc. will just delay their body being snatched up to heaven — 
so they should, under that logic, get an exemption.

No.

-- 
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/

Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think.

- Martin Luther King Jr., Strength to Love, 1963





On Feb 21, 2014, at 6:05 PM, Gaubatz, Derek dgaub...@imb.org wrote:

 We’ve been down this road before:forcing plaintiffs to choose between 
 abandoning their religious beliefs, paying crippling penalties, or becoming a 
 second-class employer that doesn’t offer its employees benefits is a 
 government imposed substantial burden.It’s only those employers with 
 religious objections to the abortifacient mandate who face these particular 
 set choices and that set of choices only arises because of the mandate.   
 Employers without religious objections to the abortifacient mandate aren't 
 put to these choices; if they choose to become the second-rate employer who 
 doesn’t offer benefits, it’s not because they were forced into that choice at 
 the price of abandoning their religious beliefs.  
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
 Sent: Friday, February 21, 2014 5:26 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: RLPA history for RLUIPA
  
 Which tax?  Hobby Lobby, like any employer, can choose not to offer an 
 employee health care plan if it does not wish to comply with any of the many 
 requirements that apply to all such plans -- or for any other reason, for 
 that matter.  If it does so, it will pay a tax assessment to help subsidize 
 the government subsidy on the exchanges . . . but that tax will pale in 
 comparison to the savings it will realize by not having to pay insurance 
 premiums and the costs of plan administration.
  
 In any event, the question is not whether Hobby Lobby is burdened at all, 
 but whether federal law imposes a substantial burden -- in this case, whether 
 the law substantially pressures HL to retain its plan notwithstanding the 
 religious objection.  HL has not pleaded facts to demonstrate that it would 
 be subject to such significant pressure -- it has offered only conclusory 
 statements.
  
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Posner on oral advocacy in religion case

[Steven Jamar]

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: Posner on oral advocacy in religion case

[Steven Jamar]

A circuit judge being arrogant?  Condescending?  In control of his courtroom?  
Interrupting counsel?  
A judge trying to pin down a lawyer with a loaded question?  

Seems pretty normal to me.  If a judge asks a question with a hidden premise, 
you can attack that premise, and the judge will appreciate having that aspect 
revealed — but only if you answer the question given his or her premise in the 
first place.

Advocates should also be aware that at times their best friend on the court 
turns out to be the one challenging you the most because once you’ve answered 
their questions, they can decide based on their judgment on all the aspects of 
the case.  Of course it is more common that judges argue their position through 
questions.  

In terms of the interrupting judge — if it is too excessive, one can eventually 
ask to be allowed to finish the point.

-- 
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/

Hope has two beautiful daughters. Their names are anger and courage; anger at 
the way things are, and courage to see that they do not remain the way they are.
-- Augustine of Hippo.








On Feb 14, 2014, at 10:45 AM, davidebernst...@aol.com wrote:

 Howard Bashman: Several times during the oral argument, Judge Posner told 
 Kairis “Please don’t interrupt me.” At least several of those times, however, 
 it was Judge Posner who was interrupting Kairis, who then failed to stop 
 talking. Instead of trying to prove the point “You don’t interrupt me; 
 rather, I interrupt you,” maybe Judge Posner could have better communicated 
 his message by telling the advocate, “When I start talking, you must stop 
 talking.”
 
 
 -Original Message-
 From: Douglas Laycock dlayc...@virginia.edu
 To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu; 
 'CONLAWPROFS professors' conlawp...@lists.ucla.edu
 Sent: Fri, Feb 14, 2014 10:17 am
 Subject: RE: Posner on oral advocacy in religion case
 
 I haven’t listened to the tape and don’t intend to. From the short written 
 story, probably they should both be embarrassed.  The lawyer behaved badly, 
 and Posner over reacted.
  
 Big firm lawyers sometimes expect special deference from lower court judges. 
 Sometimes they get it. Maybe he thought he should/would be allowed to 
 interrupt or equivocate. But Posner was the wrong judge to try that on.
  
 Back in Neolithic times, when I clerked at the Seventh Circuit, we had an 
 antitrust case with a complicated statutory interpretation question – 
 complicated principally because the statute wasn’t very well drafted. The 
 facts were simple. In those days vertical price fixing was a per se 
 violation, but there was an exception for state fair trade laws, and the 
 question was which state’s law applies.
  
 A partner from Sherman  Stearling came out from New York to argue the case, 
 and seemed to think he was visiting the less educated provinces. He drew a 
 panel of Stevens, Cummings, and Sprecher, which was about as good a 
 three-judge panel as you could draw anywhere in the country in those days. 
 And Stevens had been an antitrust lawyer.
  
 But the guy was completely condescending. He brought an easel with an outline 
 map of Missouri and Arkansas, showing a wholesaler in one state and a 
 retailer in the other, so that they could understand this complicated choice 
 of law problem. He went way over his time. His tone and demeanor was 
 condescending. Cummings was a soft touch presiding and let him get away with 
 it.
  
 Posner obviously would not – not in that case and not in Notre Dame’s either. 
 Jones Day should have been able to learn that with the tiniest bit of 
 homework. Wyzanski was worse; he would berate and humiliate lawyers who 
 didn’t meet his standards.
  
 The only safe thing for lawyers is to play by the usual rules. But if you 
 think you can create an exception, you have to know what judge you are 
 talking to.
  
 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 Steven Jamar
 Sent: Friday, February 14, 2014 7:47 AM
 To: CONLAWPROFS professors; Law Religion  Law List
 Subject: Posner on oral advocacy in religion case
  
 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

JW juror finds religion leading to mistrial

[Steven Jamar]

http://www.washingtonpost.com/local/crime/pr-georges-trial-in-fatal-police-chase-tossed-because-of-jurors-religious-beliefs/2014/01/09/3e834ef4-7956-11e3-af7f-13bf0e9965f6_print.html

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

The only things truly worth doing cannot be accomplished in a single lifetime.

Prof. Goler Teal Butcher, after Reinhold Neibuhr




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Re: courts and lawmaking

[Steven Jamar]

We are a common law country where courts have always made law.
We are a country where courts have always interpreted the statutory and 
regulatory law and unavoidably in the process “made” law.
We are a country where legislatures (including Congress) have the power to 
write the law contrary to what courts have said it is and thus to “overturn” 
court decisions in most areas of law.
We are a country that has limited what courts and legislatures and governments 
can do by the federal constitution and the constitutions of the various states.
We are a country where courts have the power to interpret the constitution and 
to provide the final word on the meaning of the constitution and its limits 
(until a later court changes the rules).  In this area, and this area alone, 
the legislatures cannot “overturn” the interpretation of the law by the courts.

Nonetheless, if the court gives limited interpretations to the rights under the 
constitution, legislatures can always give greater rights to the people than 
those defined by the court as constitutional, but they cannot give less.

Boerne was wrongly decided when the court arrogated to itself to create a 
significant and unwarranted limitation on the power of congress under the 14th 
Amendment (congruent and proportional) in its (the court’s) misguided 
understanding of both the post Civil War amendments constitution and of its 
(the court’s) power relative to Congress under them.

And this leaves the people without a remedy other than the one chosen — to try 
to fashion statutes that undue the perceived damage done by the court in Smith. 
 The way RFRA and state RFRAs work is unusual, possibly even unique, but they 
are merely statutes that give greater rights to the people than the court has 
recognized are required under the constitution.

The whole brouhaha on this thread strikes me as very interesting and 
erudite–fascinating even.  But it also strikes me as far to slavish to the 
value of some coherent theory to make sense of it all.  The line between court 
power and legislative power is not so clean nor so easily drawn as some seem to 
prefer — and I think that is overall a good thing.  Neither the law nor 
language nor politics nor policy are so easily corraled nor should they be.  
Constitutional law is not merely applied politics, but neither is it derived 
nor derivable from discovered or created axioms.  It just doesn’t, shouldn’t 
and wasn’t ever designed to work that way.

Steve


-- 
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/

Hope has two beautiful daughters. Their names are anger and courage; anger at 
the way things are, and courage to see that they do not remain the way they are.
-- Augustine of Hippo.





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FSM in Madison rotunda

[Steven Jamar]

http://talkingpointsmemo.com/livewire/athiest-group-s-flying-spaghetti-monster-displayed-in-wisconsin-capitol

Pastafarians don’t generally evangelize quite this much.

-- 
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/

Sometimes you have to play a long time to be able to play like yourself.
Miles Davis

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