Re: Hobby Lobby Question
I assume that the use of quotes around constitutional fact is meant to highlight that the phrase is used as an analogy in this situation, which is governed by a statute and not the Constitution. But partly for that reason, I think the danger of a jury's refusal to follow a proper instruction on the irrelevance of a belief's rationality to its sincerity is not likely to be very significant (since firstly, juries don't usually ignore a judge's instructions, and secondly, a court can also enter a JNOV if the jury has obviously gotten it wrong). If the determination of sincerity is left to courts as some kind of über-fact then I think we really do tread dangerous ground, since that determination will too often be made on hidden policy agendas, for administrative convenience, or other factors that we really don't want to impinge on religious liberty, to say nothing of investing the courts in determining issues of religion that the Constitution forbids them to do. On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven
Re: Hobby Lobby Question
I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: German circumcision decision
OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm *to the polity* ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Sorry for the delay responding – I was traveling Monday and Tuesday – but I’m not sure I grasp the argument in the first paragraph. My view is generally this: ** ** (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can’t make such decisions. (3) Yet some such medical decisions *must* be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. ** ** But this argument hinges on there being medical reasons for the decision – I don’t see any reason for parents to have this power when they exercise it for nonmedical reasons. We may defer to a parent’s decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don’t see why we should defer to such a decision when the parent doesn’t even purport to be making a medical judgment, but is just deciding based on the judgment that “God wants me to do this” or “I don’t want to give more profits to Big Pharma.” That’s not weighing religious motivation negatively because it’s religious – that’s weighing a *nonmedical *motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son’s body is the need for *medical* judgment.*** * ** ** This leaves two different arguments. One is “letting people do what they have always done,” which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman’s post – especially give the longstanding tradition of allowing not just parental decisions about surgery for children but also parental decisions about beating children, a tradition that I do not think ought to be given much legal weight. The second, which I think is intriguing and might be correct, is to have such decisions be made by legislatures directly, rather than by judges interpreting general human rights norms. I’d love to hear more thoughts on this institutional question. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Monday, July 02, 2012 10:58 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis. This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally
Re: Medical reasons for action vs. religious reasons for action
I'm not sure who the we is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the * offense* that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same unalienable right to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the crime of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the normal circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense. Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions but not to allow a religious one (RFRA arguments, anyone? Would *Lukumi* apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives. On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Here’s an analogy from another area in which the normal rule – one person may not alter or injure another’s body without permission – is relaxed: self-defense. ** ** Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don’s property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don – a Muslim – to think that Vic will imminently injure Don, or that the fire will spread to Don’s property.) Vic attacks Don using nondeadly force and injures him. ** ** If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don *could have* reasonably believed that Vic was about to injure him, but Don *did not actually sincerely believe this*. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we’d agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason – the perception that Vic poses an imminent danger to Don’s person or property. ** ** If I’m right on this, then I all think that there’s no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another’s body: that the actor is the subject’s parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child’s body for medical reasons doesn’t mean he has a right to alter the child’s body – even when the objective circumstances seem the same – for nonmedical reasons, including religious ones. ** ** Eugene ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Thursday, July 05, 2012 7:09 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm *to the polity* ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Sorry for the delay responding – I was traveling Monday and Tuesday – but I’m not sure I grasp the argument in the first paragraph. My view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants
Re: German circumcision decision
But isn't saying that you would accept the argument that refusing medical treatment because it might do more harm than good the same as saying the medical treatment might not be necessary? And if in any particular situation you would accept the argument that doing or not doing something would be valid if you said it was for medical reasons, and oh by the way to do otherwise would be against my religion (and there is independent evidence that the medical argument is genuine), then why condemn someone who neglects to mention the medical rationale? The medical evidence goes to the question of whether, objectively speaking, there is a likelihood of harm. If the medical evidence is to the contrary, or if the matter is subject to substantial debate, the religious motivation shouldn't be weighted negatively, and doing so is simply a point of religious bias rather than objective analysis. This is why I, like Mark Scarberry, would urge a legal heuristic that courts should be biased in favor of letting people do what they have always done, unless a democratically accountable legislature has clearly indicated the contrary (at which point you could begin analyzing whether the legislature has infringed someone's fundamental rights). Nobody in post-war Germany has ever prosecuted a doctor or parent (never mind a religious official) for performing or permitting a male circumcision, which ought to be evidence that the generally phrased criminal legislation didn't cover it. The judge's rather high-handed and arbitrary statements that in Central Europe there are no medical arguments in favor of circumcision do indicate a mindset that just wanted to take a slap at traditional religious communities. It's just more legislating from the bench (or the post office). Vance On Sun, Jul 1, 2012 at 5:22 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I don’t see why it’s “religio-cultural[ly] insensitiv[e]” to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don’t see why we should treat (a) a parent’s refusing necessary medical treatment to a child because there’s a plausible argument that the treatment will do more harm than good the same as (b) a parent’s refusing such treatment without any such explanation but simply because he concludes “we should pray instead of performing the medical procedure, and God will take care of things.” Perhaps it’s too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). ** ** Now of course here the situation is not identical – indeed, as I’ve argued before, male circumcision is not identical to pretty much any other procedure – and perhaps the situation should be different when we’re not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn’t mean that it might permissibly be made for religious reasons (or other nonmedical reasons). ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Sunday, July 01, 2012 9:38 AM *To:* Law Religion issues for Law Academics *Subject:* Re: German circumcision decision ** ** Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? ** ** And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. ** ** The fact is, given Germany's history of how
Re: German circumcision decision
Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.comwrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com -- *From:* Volokh, Eugene vol...@law.ucla.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Sunday, July 1, 2012 11:56 AM *Subject:* RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children’s bodies – for religious reasons or otherwise – is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: German circumcision decision
Article 4 of the German constitution (go here: https://www.btg-bestellservice.de/pdf/80201000.pdf) protects not only freedom of conscience, but the equivalent of free exercise (the undisturbed practice of religion). The court dealt with this in fairly summary fashion: The parents' fundamental rights under Article 4 (1), 6 (2) of the Basic Law (*Grundgesetz*, GG) in turn are limited by the fundamental right of the child to physical integrity and self-determination under Article 2 (1) and (2) sentence 1 GG. No citation, no analysis. It also cites section 4(1), the freedom on conscience clause, rather than 4(2), the free exercise clause. The Landgericht is an intermediate state court (note that in addition to one judge the panel consists of two laymen, both postal employees), from which there is a further appeal in the state, and thereafter an appeal to the highest ordinary federal court (Bundesgerichtshof). Reference to the federal Constitutional Court (Bundesverfassungsgericht) are possible at any stage once a constitutional issue is properly raised. Vance On Sun, Jul 1, 2012 at 2:31 PM, Alan Brownstein aebrownst...@ucdavis.eduwrote: I agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and child sexual abuse
or otherwise legally protected from disclosure. If you are not a named addressee then you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of this message. Thank you. ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Defeat of RFRA constitutional amendment in North Dakota
** ** ___ 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. -- **Arthur B. Spitzer Legal Director American Civil Liberties Union of the Nation's Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 Tel. 202-457-0800 www.aclu-nca.org a...@aclu-nca.org artspit...@gmail.com *See Something - Say Something! If you see a violation of civil liberties, call the ACLU!* ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota
I should clarify that I was not attempting to address the North Dakota vote specifically, which of course could have been influenced by a number of particularized factors, but was addressing Eugene's broader question of why the RFRA enactment engine nationally seems to be sputtering. On Wed, Jun 13, 2012 at 8:26 PM, Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu wrote: Among many other reasons it may reflect hostility to Native Americans. *Connected by DROID on Verizon Wireless* -Original message- *From: *Douglas Laycock dlayc...@virginia.edu* To: *apos;Law Religion issues for Law Academicsapos; religionlaw@lists.ucla.edu* Sent: *Wed, Jun 13, 2012 20:49:25 GMT+00:00* Subject: *PS RE: Defeat of RFRA constitutional amendment in North Dakota I meant to say that Vance’s point about the fears of Muslims and Sharia law is surely also part of the explanation. The evangelical rank and file conceives religious liberty mostly in terms of their own religious liberty – they are certainly not the only ones, but as Vance notes, they are an important voting block on this issue – and when attention is focused on religious liberty for Muslims instead, many of them will take a different view. So that no doubt affected some votes. But it was NARAL and Planned Parenthood that spent the money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Analogous Secular Interests
I always thought the parsonage exemption was a specialized case of the employer-furnished housing exemption. Unless the rules were changed when I wasn't looking (and I haven't been looking for quite some time), the rental value of the on-or-near-campus house a university provides its president (for example) is excludable from the president's income because it serves the employer's convenience. Vance -- Vance R. Koven Boston, MA USA vrko...@world.std.com On Thu, Apr 19, 2012 at 2:43 PM, Douglas Laycock dlayc...@virginia.eduwrote: Bob’s point 1 means the issue won’t arise very often. But when a non-theist has a deeply held moral commitment that is analogous to similar religious commitments, he ought to be protected. ** ** On point 2, the lack of a sacred text is just a matter of proof, and not in itself so important. The lack of an organized body with systematic teachings is the bigger proof obstacle. But as most list members know, nontheistic objection to military service was protected as a matter of statutory interpretation in the Vietnam-era cases. I fear it would be a tougher sell to today’s Court, although Justice O’Connor endorsed those cases, apparently as a matter of constitutional law, in her concurring opinion in Kiryas Joel. ** ** On point 3, the parsonage allowance is not a protection for conscience and really presents a quite different set of issues. It does not relieve a burden on the exercise of religion, and it is not part of a neutral general category; it is probably a longstanding Establishment Clause violation. But it is also likely that no one has standing to challenge it, especially after Arizona v. Winn. ** ** It is not available to all employees of the church, but only to ministers. So it should not be available to the whole staff of FFRF. But if there are employees whose job is to teach a non-theistic belief system to followers, or perhaps to proselytize the unconverted, they should be eligible for the parsonage allowance. That’s how I would set up the claim if I were representing FFRF. ** ** 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 *b...@jmcenter.org *Sent:* Thursday, April 19, 2012 2:15 PM *To:* Law Religion issues for Law Academics *Subject:* Analogous Secular Interests ** ** Marty, I'm very curious about your reference to analogous secular interests in your recent accommodation and pork post. I would appreciate some elaboration. #1 - This concept occasionally came up at the American Humanist Association during the three years that I served as staff attorney. The big impediment is that nontheists don't have sincerely held religious beliefs, e.g., with respect to foods, clothing, birth control, death penalty. Instead, our (atheists, agnostics, freethinkers, secular humanists) notions of these items are based on personal preference, personal philosophy or (personal) reason. Altho secular humanism was mentioned in a footnote in Torcaso v. Watkins (1961) as being a religion, its lack of a sacred text or creed make it very difficult -- at law -- to be similarly situated. For example, Jewish men wear yarmulke, Muslim women a hijab or Sikh men a turban. But a Humanist? In one discussion I had, the question was whether a person (any person) who wanted to a baseball style cap at work where persons of religion where allowed to wear head coverings as an accommodation of religion. The Humanist hypothetically wanted to wear the cap simply because (a) he liked it or (b) he was bald -- neither a sincerely held religious belief. If a head covering is a head covering is a head covering, is not the Humanist entitled to the same civil rights as a Jew, Muslim or Sikh? #2 - Perhaps a better example would a Humanist who objected to serving in the military and killing on humanism grounds. The belief could be sincerely held -- but not universally held by Secular Humanists. And again, no sacred text to confirm. #3 - An interesting case is currently being litigated in Wisconsin by the Freedom From Religion Foundation in which it is arguing that its Atheist personnel (whom the FFRF board authorized a housing allowance) are entitled to take the Section 107 parsonage housing allowance exemption on their federal income tax returns. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter 6809 Kincaid Avenue Falls Church, VA 22042 703-533-0236 On April 12, 2012 at 7:15 PM Marty Lederman lederman.ma...@gmail.com wrote: Just a slight emendation to Doug's post
Re: Teacher suspended for anti-same-sex-marraige Facebook post
Facebook post* *** ** ** Mark raises valid concerns. The questions Steve asks seem to be *Tinker*questions. I think the *Tinker* “material disruption” standard almost unavoidably creates some risk of a heckler’s veto. It also is implicitly biased against unpopular speech which challenges conventional orthodoxy because such speech is far more likely to be disruptive than conventional messages expressing generally accepted viewpoints. ** ** It may be that these weaknesses in *Tinker* have to be accepted because of the school’s legitimate need to maintain order in an institutional setting involving hundreds of minors. But these concerns suggest that we should be wary of extending a *Tinker* like standard to expression by adults expressed outside of the school environment. ** ** Still, that wariness may have some limits. If a teacher in a racially integrated school with a history of racial incidents was the recruitment officer for the local KKK chapter and used social networking as a recruitment tool, would the school be justified in refusing to renew his contract? ** ** 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Interesting early W. Va. Att'y Gen. opinion on released time programs
What I think Mr. Ritter is missing is that the WV AG was not construing the Federal Constitution, but the West Virginia constitution, whose religion clause was a much more detailed paragraph than the First Amendment's. The AG mentions the First Amendment, but seems to do so in a way that does *not* consider it binding on the state, merely illustrative of a mode of analysis he favors. My point was that he completely neglected the text before him (which, as I understand it, is a large part of what Originalists like to focus on) and jumped in like Rosie Ruiz just before the finish line of his argument. An Originalist would have started with the text and then tried to ascertain what its drafters thought they were saying with the words they used. One consideration in that might be that if all they wanted to do was copy the Federal First Amendment, why did they indulge in such relative prolixity? But as I said, Originalism is a modern doctrine, and I'm not faulting the AG for not being an Originalist avant le lettre. I do fault him, though, for assuming his conclusion. Vance On Mon, Aug 8, 2011 at 10:29 AM, b...@jmcenter.org b...@jmcenter.org wrote: ** Vance, I'm not sure that I understand your comment on Originalism. The principle of separation of church and state is a bona fide original intent view of the Establishment Clause, notwithstanding David Barton's revisonist book Original Intent: The Courts, the Constitution, Religion, 3rd., 2000. The problem understanding the scope of the E.C. is that there are (1) no contemporaneous (1789) records explaining what respecting an establishment of religion means and (2) the phrase itself (not individual words) is original, meaning that it had not been previously used. (It is my understanding that the 3 Senate members of the joint House-Senate Committee agreed to James Madison's insistence that the wording of the First Amendment be retained in exchange for some changes in the wording of other amendments. See Founding Faith by Steven Waldman, 2008.) Indeed, the phrase, like most of the Constitution and amendments which followed, a political compromise. But a compromise of what? One House proposal would have withdrawn Congress's power on any matters touching religion. Clearly, this would have meant separation of church and state. Over the years, I've continued to wrestle with the question is respecting equivalent to touching? As a separationist, I don't see any significant difference. Rather, I see the difference as mere word choice -- that respecting sounds more legalistic than touching. However, accommodationists and those of the Christian Nation persuasion take a radically different view. In the final analysis, in my view, the West Virginia A.G. opinion got it right on the basis of Originalism. Bob Ritter On August 6, 2011 at 9:28 PM Vance R. Koven vrko...@gmail.com wrote: What I find interesting is that the AG did absolutely no parsing of the constitutional language, in which I couldn't find anything that spoke to what released time is. He jumped immediately to the extra-statutory concept of separation of State and Church without so much as a case citation to support his reading. The US Constitution gives one a lot of room to maneuver with its rather vague language, but the WV one doesn't seem to do. Oh well, I guess back in the 20s they didn't have modern doctrines like Originalism. Vance On Sat, Aug 6, 2011 at 8:53 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I just came across this 1926 opinion, which I hadn’t heard, and which I thought might be of interest. Eugene 31 W. Va. Op. Atty. Gen. 344 Office of the Attorney General State of West Virginia March 15, 1926 *SCHOOLS—Pupils Cannot be Excused During School Periods to attend Religious Instruction.* Hon. George M. Ford State Superintendent of Schools Charleston, West Virginia Dear Sir: You submit to this office for opinion the following question: “Can we constitutionally excuse children from the regular work of the school during the school periods, to attend classes conducted by religious denominations for religious instruction?” Your question was prompted by a communication which you enclose, from Mr. George H. Colebank, of Beckley, Superintendent of Schools of Town District. It appears from his letter that the school officers and ministers of the churches in the City of Beckley have under consideration a plan of introducing religious instruction at the beginning of the next school year for the children in the public schools whose parents would give permission to be excused from the schools for one or two periods each week, to attend various churches for religious instruction. This presents a question which must be approached with some trepidation because it relates to religious instruction, and the sacred rights vouchsafed in our State Constitution, superinduced by the experiences
Re: Interesting early W. Va. Att'y Gen. opinion on released time programs
I agree that there is an element of both in it. I wanted to avoid suggesting that Justices Scalia, Thomas and Alito were really Deconstructionists--they would undoubtedly find the prospect horrifying--but the concept of original intent, at least to my somewhat dilettantish eyes in following the intellectual history of Constitutional doctrine, seems to want to start with parsing the specific text in the context of contemporaneous usage. On Mon, Aug 8, 2011 at 11:30 AM, hamilto...@aol.com wrote: ** Vance-- Small point-- Aren't you confusing originalist with textualist? I would have thought an originalist would be interested in the history behind the language as well as the language, while the textualist would eschew the history to focus on the language. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 In a message dated 8/8/2011 11:12:52 A.M. Eastern Daylight Time, vrko...@gmail.com writes: What I think Mr. Ritter is missing is that the WV AG was not construing the Federal Constitution, but the West Virginia constitution, whose religion clause was a much more detailed paragraph than the First Amendment's. The AG mentions the First Amendment, but seems to do so in a way that does *not* consider it binding on the state, merely illustrative of a mode of analysis he favors. My point was that he completely neglected the text before him (which, as I understand it, is a large part of what Originalists like to focus on) and jumped in like Rosie Ruiz just before the finish line of his argument. An Originalist would have started with the text and then tried to ascertain what its drafters thought they were saying with the words they used. One consideration in that might be that if all they wanted to do was copy the Federal First Amendment, why did they indulge in such relative prolixity? But as I said, Originalism is a modern doctrine, and I'm not faulting the AG for not being an Originalist avant le lettre. I do fault him, though, for assuming his conclusion. Vance ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Interesting early W. Va. Att'y Gen. opinion on released time programs
and reason the church should be separate and distinct from the State, and those who are its members should exercise their rights under and within the State, as individuals, and not as a church. This is supported by the teachings of the Bible as contained in what we call the New Testament. One who has a proper conception of the church must look upon it as the body of Christ of which He, Christ, is the head, each and every member of which having experienced the regenerating power of the Holy Spirit are incorporated into His mystical body. The Great Apostle Paul, through the revelation of the Holy Spirit, has wonderfully distinguished in his epistles, the Church from the world and worldly things, (including governmental organizations); in other words, the complete separation of State and Church. Christians are those who have been born again through the atoning blood of the Lord Jesus, and are commanded to separate and to keep themselves unspotted from the “world” used here is a very broad term, and includes every thing which is not Christian in character. A *believer*, although in the world, is not of the world, but, in the sight of God, is seen and looked upon as in His very presence. The word *religion* is a very broad term, and in our common parlance may include Christianity, but all religions are not Christian, and Christianity should never be confused with religion. The principle of State and Church Separation, having been inculcated into the minds and hearts of those who stood for religious freedom, and a complete divorcement of Church and State found its way into our Constitutions, Federal and State; a principle supported by Holy Writ. This being true then, we cannot see wherein school authorities can enter into any kind of an arrangement whereby the children of schools supported by the State can divide their time between the State and Church *within the time required by statute to be in the public schools for instruction.* Furthermore, it may be that facilities are not at hand for all religious creeds. History reveals a constant conflict between religious creeds and beliefs, from which the present generation is not free, followers of which are conscientious and sincere. These creeds and beliefs relate to man's relationship to the Deity, and cannot be changed by statutory laws or administrative regulations, nor by forms or ceremonies but, in the opinion of the writer, only as the Lord Jesus Christ makes the *contact* between God and Man. We are not unappreciative of the fact that this effort upon the part of ministers, and the school officers, of Beckley, was prompted by the purest motives, having only in mind proper religious instruction and betterment for the youth, but no doubt this arrangement is not authorized by the law, and its sanction might be a step in the direction of an encroachment upon a well established and much desired principle, which we hope may continue, namely, a complete divorcement of Church and State. For these reasons, I would hold that such an arrangement as is contemplated is not warranted by law. Very truly yours, Howard B. Lee Attorney General By R. A. Blessing Assistant ** ** ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wills that state they are to be interpreted under religious law
that requires discrimination based on sex, religion, race, and the like, when it is doing so in the course of interpreting a will, contract, etc., on the theory that the court is simply effectuating the author’s discriminatory preferences rather than itself engaging in constitutionally suspect discrimination? 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Gamaliel: A Historical Question
The Wikipedia entry gives the English pronunciation with a long, stressed second a, but from the Greek entry (the Hebrew I leave to others, since, obviously, it has no vowels) I'd guess that in other languages the second a would be short, or at least an ah sound. Gamaliel the Elder (English pronunciation: /ɡəˈmeɪljəl/),[1] or Rabbi Gamaliel I (גמליאל הזקן; Greek: Γαμαλιήλ ο Πρεσβύτερος) Vance On Fri, Feb 4, 2011 at 12:55 PM, Ed Darrell edarr...@sbcglobal.net wrote: Sorta off topic question: How do you pronounce Gamaliel? Is there a story to how Warren Harding got that for a middle name? Ed Darrell Dallas --- On *Fri, 2/4/11, Wallace, E. Gregory walla...@campbell.edu* wrote: From: Wallace, E. Gregory walla...@campbell.edu Subject: RE: Gamaliel: A Historical Question To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Friday, February 4, 2011, 11:36 AM Tolerationists during the period often referred to Gamaliel. For example, see John Goodwin's tract, Theomachia; or The Grand Imprudence of men running the hazard of fighting against God (1644). Dirck Coornhert is another. (see Gerrit Voogt, Constraint on Trial: Dirck Volckertsz Coornhert and Religious Freedom (2000), at 118). Also, check out the discussion on theological fallibilism in John Coffey's Persecution and Toleration in Protestant England 1558-1689 (Longman, 2000) at pp. 65ff. Greg Wallace Campbell University School of Law -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Nathan Oman [ nate.o...@gmail.com] *Sent:* Friday, February 04, 2011 11:17 AM *To:* Law Religion issues for Law Academics *Subject:* Gamaliel: A Historical Question I have a question for those of you who are familiar with early modern, e.g. 16th and 17th century, debates over religious toleration. Do you know of any writers that used the story of Gamaliel as a justification for toleration. In the NT, Gamaliel is a Pharisee who argues against the persecution of the early Christians on the grounds that if there work is not of God it will perish but if it is of God one would be sinning in acting against it. Either way, the best course of action is toleration. (See Acts 5) I am just wondering if it was every invoked in polemics about religious toleration. Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.eduhttp://mc/compose?to=Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Gamaliel: A Historical Question
Well, Google Books is a wonderful thing. Here's a snip from Warren G. Harding, by John Wesley Dean: [His mother] Phoebe wanted to name him Winfield but her husband preferred a family name: Warren Gamaliel. Warren was Tyron's grandmother's maiden name, and Gamaliel an uncle's name that would prove to be prophetic. In the Bible, Gamaliel was noted for counseling moderation and calmness. On Fri, Feb 4, 2011 at 3:48 PM, Ed Darrell edarr...@sbcglobal.net wrote: Why didn't I think of that. Still curious about President Harding -- if anyone stumbles into the information, let me know! Thanks. Ed Darrell Dallas --- On *Fri, 2/4/11, Vance R. Koven vrko...@gmail.com* wrote: From: Vance R. Koven vrko...@gmail.com Subject: Re: Gamaliel: A Historical Question To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Friday, February 4, 2011, 1:30 PM The Wikipedia entry gives the English pronunciation with a long, stressed second a, but from the Greek entry (the Hebrew I leave to others, since, obviously, it has no vowels) I'd guess that in other languages the second a would be short, or at least an ah sound. Gamaliel the Elder (English pronunciation: /ɡəˈmeɪljəl/),[1] or Rabbi Gamaliel I (גמליאל הזקן; Greek: Γαμαλιήλ ο Πρεσβύτερος) Vance On Fri, Feb 4, 2011 at 12:55 PM, Ed Darrell edarr...@sbcglobal.nethttp://mc/compose?to=edarr...@sbcglobal.net wrote: Sorta off topic question: How do you pronounce Gamaliel? Is there a story to how Warren Harding got that for a middle name? Ed Darrell Dallas --- On *Fri, 2/4/11, Wallace, E. Gregory walla...@campbell.eduhttp://mc/compose?to=walla...@campbell.edu * wrote: From: Wallace, E. Gregory walla...@campbell.eduhttp://mc/compose?to=walla...@campbell.edu Subject: RE: Gamaliel: A Historical Question To: Law Religion issues for Law Academics religionlaw@lists.ucla.eduhttp://mc/compose?to=religionlaw@lists.ucla.edu Date: Friday, February 4, 2011, 11:36 AM Tolerationists during the period often referred to Gamaliel. For example, see John Goodwin's tract, Theomachia; or The Grand Imprudence of men running the hazard of fighting against God (1644). Dirck Coornhert is another. (see Gerrit Voogt, Constraint on Trial: Dirck Volckertsz Coornhert and Religious Freedom (2000), at 118). Also, check out the discussion on theological fallibilism in John Coffey's Persecution and Toleration in Protestant England 1558-1689 (Longman, 2000) at pp. 65ff. Greg Wallace Campbell University School of Law -- *From:* religionlaw-boun...@lists.ucla.eduhttp://mc/compose?to=religionlaw-boun...@lists.ucla.edu[ religionlaw-boun...@lists.ucla.eduhttp://mc/compose?to=religionlaw-boun...@lists.ucla.edu] on behalf of Nathan Oman [nate.o...@gmail.comhttp://mc/compose?to=nate.o...@gmail.com ] *Sent:* Friday, February 04, 2011 11:17 AM *To:* Law Religion issues for Law Academics *Subject:* Gamaliel: A Historical Question I have a question for those of you who are familiar with early modern, e.g. 16th and 17th century, debates over religious toleration. Do you know of any writers that used the story of Gamaliel as a justification for toleration. In the NT, Gamaliel is a Pharisee who argues against the persecution of the early Christians on the grounds that if there work is not of God it will perish but if it is of God one would be sinning in acting against it. Either way, the best course of action is toleration. (See Acts 5) I am just wondering if it was every invoked in polemics about religious toleration. Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.eduhttp://mc/compose?to=Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.eduhttp://mc/compose?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. -- Vance R. Koven Boston
Re: Gamaliel: A Historical Question
Sounds a bit like a W.S. Gilbert rhyme to me. On Fri, Feb 4, 2011 at 7:59 PM, Will Linden wlin...@panix.com wrote: Bredon went to Balliol And sat at the feet of Gamaliel Dorothy Sayers, Murder Must Advertise ... followed by hail you all, jail you all. On Fri, 4 Feb 2011, Ed Darrell wrote: Sorta off topic question: How do you pronounce Gamaliel? Is there a story to how Warren Harding got that for a middle name? Ed Darrell Dallas --- On Fri, 2/4/11, Wallace, E. Gregory walla...@campbell.edu wrote: From: Wallace, E. Gregory walla...@campbell.edu Subject: RE: Gamaliel: A Historical Question To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Friday, February 4, 2011, 11:36 AM Tolerationists during the period often referred to Gamaliel. For example, see John Goodwin's tract, Theomachia; or The Grand Imprudence of men running the hazard of fighting against God (1644). Dirck Coornhert is another. (see Gerrit Voogt, Constraint on Trial: Dirck Volckertsz Coornhert and Religious Freedom (2000), at 118). Also, check out the discussion on theological fallibilism in John Coffey's Persecution and Toleration in Protestant England 1558-1689 (Longman, 2000) at pp. 65ff. Greg Wallace Campbell University School of Law From: religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Nathan Oman [ nate.o...@gmail.com] Sent: Friday, February 04, 2011 11:17 AM To: Law Religion issues for Law Academics Subject: Gamaliel: A Historical Question I have a question for those of you who are familiar with early modern, e.g. 16th and 17th century, debates over religious toleration. Do you know of any writers that used the story of Gamaliel as a justification for toleration. In the NT, Gamaliel is a Pharisee who argues against the persecution of the early Christians on the grounds that if there work is not of God it will perish but if it is of God one would be sinning in acting against it. Either way, the best course of action is toleration. (See Acts 5) I am just wondering if it was every invoked in polemics about religious toleration. Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell -Inline Attachment Follows- ___ 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. Will Linden wlin...@panix.com http://www.ecben.net/ Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: TRO against Oklahoma no use of Sharia Law
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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: TRO against Oklahoma no use of Sharia Law
... '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 To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Is a patient who believes Jesus would save [me] competent to refuse life-saving medical treatment?
an unequivocal desire to live. ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Free Exercise Clause trumps Fair Housing Act, when applied to a homeless shelter that gives preferential treatment to people who go to its religious services
at 946http://web2.westlaw.com/find/default.wl?tf=-1rs=WLW10.05referencepositiontype=Sserialnum=1999263081fn=_topsv=Splitreferenceposition=946findtype=Ytc=-1ordoc=2021983991mt=LawSchooldb=506utid=1vr=2.0rp=%2ffind%2fdefault.wlpbc=89BCE499. For example, “[a] secular court may not ... adjudicate matters that necessarily require it to decide among competing interpretations of church doctrine, or other matters of an essentially ecclesiastical nature, even if they also touch upon secular rights.” *Id.* (citations omitted). “A church's selection of its own clergy is one such core matter of ecclesiastical self-governance with which the state may not constitutionally interfere.” *Id.* The Court finds the following activities of the Rescue Mission to also be among the religious interests that are so strong that no compelling governmental interest justifies intrusion into the ecclesiastical sphere: teaching, preaching, and proselytizing to individuals on its own property; treating preferentially guests on its property who attend religious services; limiting participation in a residential addiction recovery program to individuals who are or who wish to be of the same faith; and imposing requirements that guests and residents on its property attend and/or participate in religious services and activities [T]he FHA already recognizes a religious exemption from its requirements, demonstrating that in some circumstances, religious discrimination is allowed under the FHA. As discussed above, the Rescue Mission's operation of the shelter and the Discipleship Program does not fall within the FHA's religious exemption only because the Rescue Mission does not limit occupancy of the shelter and residency in the Discipleship Program to persons of the same religion, or give preference to such persons. Although the Rescue Mission does not qualify for the FHA's religious exemption, the Court finds that recognizing an exemption from the FHA under the circumstances of this case would not impede the purpose of the FHA. Last Fall, the court reached a similar result under the RFRA, http://religionclause.blogspot.com/2009/09/religious-homeless-shelter-and.html; but following the plaintiffs’ motion to alter or amend the decision – which apparently argued that RFRA didn’t apply to civil cases in which the plaintiff is not a governmental entity – the court reframed its arguments as relying solely on the Free Exercise Clause. Any thoughts on the decision? 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Faith Base Banking
In that case, they should be careful what they wish for: Hebrew National's claim was that their standards were *stricter* than the government's, not that they were exempt from them. On Mon, May 10, 2010 at 7:37 PM, verizon alanarmstrong@verizon.netwrote: I think the bank was claiming something like Hebrew National's we answer to a higher authority. That is, they would be more friendly, transparent, and helpful than other banks. Maybe they would keep the borrower from getting a loan that could not be repaid. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 faz 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 On May 10, 2010, at 2:51 PM, Vance R. Koven wrote: I don't see any particular connection to religion at all here. Everybody seems to be saying they were in compliance with banking regulations, the securities laws and anything else they've been charged with violating. If there is going to be a claim that being a religious bank means they don't have to abide by whatever lending criteria the law establishes (and if they were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's excuse was), it would strike me as both a last refuge of a scoundrel issue and a possible estoppel issue if they didn't make any exemption claims when obtaining their banking licenses (I don't know what regulations would apply to the borrower--there are already cases that hold a bank loan is not a securities transaction to which Rule 10b-5 would apply). There are, however, religious banks, in the sense of banks that apply religious law to their products, chiefly Islamic banks that structure products around the interest prohibition. Of course, Western banks also deal in such products for clients to whom the religious prohibitions matter. However, the NYT article doesn't suggest that Integrity was claiming a Christian loan is one that doesn't need to be repaid. Vance On Mon, May 10, 2010 at 2:30 PM, hamilto...@aol.com wrote: Sounds like religious insurance. They typically argue they should not have to abide by regulations and they discriminate on the basis of religion in hiring and in choosing customers As I remember there is a religious exemption for religious insurers in the health care law. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Faith Base Banking ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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
Re: Faith Base Banking
I don't see any particular connection to religion at all here. Everybody seems to be saying they were in compliance with banking regulations, the securities laws and anything else they've been charged with violating. If there is going to be a claim that being a religious bank means they don't have to abide by whatever lending criteria the law establishes (and if they were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's excuse was), it would strike me as both a last refuge of a scoundrel issue and a possible estoppel issue if they didn't make any exemption claims when obtaining their banking licenses (I don't know what regulations would apply to the borrower--there are already cases that hold a bank loan is not a securities transaction to which Rule 10b-5 would apply). There are, however, religious banks, in the sense of banks that apply religious law to their products, chiefly Islamic banks that structure products around the interest prohibition. Of course, Western banks also deal in such products for clients to whom the religious prohibitions matter. However, the NYT article doesn't suggest that Integrity was claiming a Christian loan is one that doesn't need to be repaid. Vance On Mon, May 10, 2010 at 2:30 PM, hamilto...@aol.com wrote: Sounds like religious insurance. They typically argue they should not have to abide by regulations and they discriminate on the basis of religion in hiring and in choosing customers As I remember there is a religious exemption for religious insurers in the health care law. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Faith Base Banking ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: UK Jewish school denies racial discrimination - Yahoo! News
Indeed. And in order to uphold the racial discrimination charge, does the court have to rule that the mother is not, in fact, Jewish, because Judaism is defined under British law as an ethnic group rather than a religion? That, it seems to me, is the principal error here. If the father had converted to Christianity instead of the mother to Judaism, would it still be racial discrimination to keep the boy out? Vance On Sat, Oct 31, 2009 at 5:27 AM, Joel Sogol jlsa...@wwisp.com wrote: So who decides the criteria for being Jewish? The court or the Rabbi? http://news.yahoo.com/s/ap/20091027/ap_on_re_eu/eu_britain_jewish_school Joel Sogol ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Jonathan Turley op-ed about US acceptance of limitation on free expression for negative religious stereotyping
That the resolution can be interpreted differently is precisely what's wrong with it. Nobody later asks what Senator so-and-so thought the bill he voted for meant, the bill becomes law and the text takes on a life of its own. While this resolution is not self-enforcing, it becomes another little blob in the pudding that is customary international law. When a court is asked to find what that law is, among other things it considers the history of international pronouncements such as this. In a close case--did the defendant's words seem likely to result in discrimination against a particular religion--such considerations could become quite important. Consequently, for the US to support such a resolution, even with fingers crossed, is a grave mistake. This is not a situation in which fine distinctions should be significant. On Thu, Oct 22, 2009 at 10:10 AM, Friedman, Howard M. hfri...@utnet.utoledo.edu wrote: The reality is more complex than this op-ed suggests. The resolution included language that could be interpreted differently by different sides in the debate. Islamic countries have been pressing for years to introduce the conept of defamation of religion into international law. The UN Human rRghts Council resolution (co-sponsored by the US and Egypt) does NOT use this term. Instead it speaks of racial and religious stereotyping of individuals that incites discrimination or violence. This is a concept something like that in US hate crimes laws. The crucial distinction is that religions, as opposed to individuals, do not have rights against defamation. (This is also complicated by the fact that earlier drafts of the resolution at one point referring to stereotyping used the term religon in one place where it should have used religious.) More information is at this post on Religion Clause (which has been updated to reflect the later draft that uses the term religious correctly): http://religionclause.blogspot.com/2009/10/cns-news-reports-that-on-friday-united.html * *Howard M. Friedman* Disting. Univ. Professor Emeritus University of Toledo College of Law Toledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: howard.fried...@utoledo.edu * -- *From:* religionlaw-boun...@lists.ucla.edu on behalf of Scarberry, Mark *Sent:* Thu 10/22/2009 3:36 AM *To:* Law Religion issues for Law Academics *Subject:* Jonathan Turley op-ed about US acceptance of limitation on free expression for negative religious stereotyping http://blogs.usatoday.com/oped/2009/10/column-just-say-no-to-blasphemy-laws-.html This appears to be a disastrous decision by an Obama administration that very much should know better. Mark Scarberry Pepperdine cross posted to conlawprof ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: An interesting application of the no religious decisions principle of First Amendment law
It may just be residual morning fog on my brain, but why wouldn't estoppel be a secular principle by which a court could determine that, whether or not the parties were validly married under Hindu custom in 1952, if for fifty some-odd years they behaved as though they had been, then nobody is now in a position to challenge that marriage? Vance On Fri, Oct 9, 2009 at 12:54 AM, Volokh, Eugene vol...@law.ucla.edu wrote: *Madireddy v. Madireddy*http://www.nycourts.gov/reporter/3dseries/2009/2009_07232.htm, decided Tuesday (and to my knowledge not covered by any other media) by a New York intermediate appellate court: In an action for a divorce and ancillary relief, the defendant appeals, and the intervenor separately appeals, by permission, from an order of the Supreme Court, Nassau County (Falanga, J.), dated September 9, 2008, which, after a nonjury trial, determined that the plaintiff and the defendant were validly married in India in 1952. ORDERED that the order is reversed, on the law, with one bill of costs, and the complaint is dismissed. The defendant correctly contends that a determination as to whether he and the plaintiff were married in a valid Hindu ceremony in India in 1952 improperly involves the court in a religious matter. Such a determination cannot be made on the basis of neutral principles of law. “The neutral principles of law’ approach requires the court to apply objective, well established principles of secular law to the issues.” The parties’ marriage allegedly took place in 1952, prior to the enactment in India of the Hindu Marriage Act of 1955, which codified Hindu Law relating to marriage and divorce. The validity of the parties’ alleged marriage, entered into in 1952, must be determined by analyzing the various and customary rites, customs, and practices of the Hindu religion of a particular caste in a particular region. This analysis is entrenched in religious doctrine and cannot be resolved by the application of neutral principles of law. When a religious dispute cannot be resolved by application of neutral principles of law, without reference to religious principles, the First Amendment to the United States Constitution prevents the court from resolving the issue. “Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while interfering with the free exercise of the opposing faction’s beliefs.” The Supreme Court determined which ceremonies are sufficient and necessary for a valid Hindu marriage between members of the Reddy caste of Sudras in the region of Andhra Pradesh, India, in 1952. This is a distinctly religious determination. The court essentially determined that performance of the ceremonies testified to by the plaintiff constitute a valid Hindu marriage between these parties, and that the defendant’s assertions to the contrary are incorrect. Thus, the Supreme Court was called upon to settle a religious controversy, not only to interpret and apply Indian law. “[T]his court is without jurisdiction to consider this issue because to do so would require the court to review and interpret religious doctrine and resolve the parties’ religious dispute, which the court is proscribed from doing under the First Amendment entanglement doctrine.” Accordingly, the order must be reversed and the complaint dismissed. ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Evaluating candidates based on their religious views
I suspect that the analysis here is based on something even more fundamental than constitutional law, which is republican government theory. Since in a republican polity the people *are* sovereign, constitutional analysis is limited to the institutions and processes the people select to effect their chosen governmental structure. Therefore, although a constitution can specify that organs of state can determine qualification to vote, and what sorts of things voters can do directly (e.g. referendums), the direct powers and the limitations on the powers of governmental bodies have to be driven by the sovereign public. One example of how this plays out is in amendments: assuming one follows the methodology prescribed by the constitution, a constitutional amendment can't itself be unconstitutional. All of which is a long way of saying that Eugene is specifically right that if the people wanted the institutions of government to be able to limit the motivations on which voters can vote, the constitution would have to specify that pretty clearly as a limitation on popular sovereignty. The difference between collusively voting for or against someone based on religion (or any other criterion) and collusively voting to enact a law that only people fulfilling a particular criterion are eligible for a position, is the difference between direct sovereign conduct and the manipulation of governmental institutions. Since the constitution describes how the latter can be done, failing to do it that way makes the action subject to constitutional attack. Contrast a collusive vote (if this were possible) to amend the constitution to require the same thing that the putative law would require, and that would be (at least legally) unassailable. Vance On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The last question reminds me of Justice Powell’s dissent in *Branti v. Finkel*, where he pointed out that “The voters of Rockland County are free to elect their public defender and assistant public defenders instead of delegating their selection to elected and appointed officials. Certainly the Court's holding today would not preclude the voters, the ultimate hiring authority, from choosing both public defenders and their assistants by party membership. The voters' choice of public officials on the basis of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any incumbent contend seriously that the voters' decision not to reelect him because of his political views is an impermissible infringement upon his right of free speech or affiliation. In other words, the operation of democratic government depends upon the selection of elected officials on precisely the basis rejected by the Court today.” Yet that didn’t carry the day, presumably because voters – the sovereign – are entitled to make election decisions on bases that government officials may not use in appointment decisions. This may be especially unappealing when the basis is race or religion, as opposed to ideology, but I think the underlying constitutional analysis must be similar: The voters’ choice of public officials on any basis the voters please, and not just ideology, is democracy. Surely if, to borrow from * Ricci*, black voters give preference to black candidates over more qualified white or Hispanic candidates – for any office, high or low – that is no constitutional violation. Eugene Alan Brownstein writes: I don’t have a satisfactory analysis of this issue either, but there are lots of interesting hypos that push the edge of the envelope. Two examples: Would the primary of a political party limited to candidates of a particular faith be constitutional? By analogy to the firefighter’s Title VII case from last term. The names of the top ten candidates for promotion to Captain or other leadership positions in the fire department (the candidates who scored highest on the exams and tests used for promotions) are submitted to the voters for approval. All candidates of a particular religion (or race) are regularly rejected by the electorate, even if they have the highest scores. Are these promotion decisions 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 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
Re: Evaluating candidates based on their religious views
I'm not entirely sure how this relates to the distinction I drew, but it seems to me that any rule that pertains to what the *government* can do within a constitutional framework in which your hypos are not hard-wired is subject to constitutional scrutiny: so if a law (not a constitutional amendment) says that voters have to approve all contracts, grants, employment agreements, and so forth, then if the law were a subterfuge for otherwise impermissible discrimination, one might raise constitutional objections. If the basic structure of the polity (for example, a provision in the constitution) required this type of voter approval, then there would be no recourse other than to 1) lump it; 2) try to change it by whatever means were available for amending it; 3) find a more congenial polity. In other words, if all you have to fall back on is some notion of natural justice, that's not, um, justiciable. Have I understood your point correctly? On Tue, Sep 22, 2009 at 7:05 PM, Brownstein, Alan aebrownst...@ucdavis.eduwrote: I don’t doubt that there is a line here, but I’m having a lot of trouble drawing it. Is the critical fact that voters are rejecting individuals one at a time while discriminatory policies operate more generally (sort of a distinction between administrative and legislative action)? And are we only talking about voters rejecting individuals who work directly for the government? What about voter rejection of individual contracts with suppliers of goods because of the supplier’s race or religion? What about government grants? Would it be constitutional to require that every grant a state provided to a non-profit organization must be subject to voter approval even though that results in the consistent rejection of grants to faith-based organizations representing minority religions? What about referenda reviewing land use decisions? Would there be a constitutional problem if the voters continually rejected zoning for the houses of worship of minority faiths while they approved similar zoning requests for the houses of worship of more popular faiths? Alan Brownstein *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Tuesday, September 22, 2009 1:43 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Evaluating candidates based on their religious views I suspect that the analysis here is based on something even more fundamental than constitutional law, which is republican government theory. Since in a republican polity the people *are* sovereign, constitutional analysis is limited to the institutions and processes the people select to effect their chosen governmental structure. Therefore, although a constitution can specify that organs of state can determine qualification to vote, and what sorts of things voters can do directly (e.g. referendums), the direct powers and the limitations on the powers of governmental bodies have to be driven by the sovereign public. One example of how this plays out is in amendments: assuming one follows the methodology prescribed by the constitution, a constitutional amendment can't itself be unconstitutional. All of which is a long way of saying that Eugene is specifically right that if the people wanted the institutions of government to be able to limit the motivations on which voters can vote, the constitution would have to specify that pretty clearly as a limitation on popular sovereignty. The difference between collusively voting for or against someone based on religion (or any other criterion) and collusively voting to enact a law that only people fulfilling a particular criterion are eligible for a position, is the difference between direct sovereign conduct and the manipulation of governmental institutions. Since the constitution describes how the latter can be done, failing to do it that way makes the action subject to constitutional attack. Contrast a collusive vote (if this were possible) to amend the constitution to require the same thing that the putative law would require, and that would be (at least legally) unassailable. Vance On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The last question reminds me of Justice Powell’s dissent in *Branti v. Finkel*, where he pointed out that “The voters of Rockland County are free to elect their public defender and assistant public defenders instead of delegating their selection to elected and appointed officials. Certainly the Court's holding today would not preclude the voters, the ultimate hiring authority, from choosing both public defenders and their assistants by party membership. The voters' choice of public officials on the basis of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any incumbent contend seriously that the voters' decision not to reelect him
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar stevenja...@gmail.com wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the court's reasoning, but rather the outcome of that reasoning. While I think that a court that would reason as I hypothesized one might would be wrong in doing so in light of the dialogue between the Court and Congress(see boumediene), I fear I have seen such toturing of laws often enough to not consider such error to beyond the realm of possibility. I guess I don't quite see how a statute based claim with EP overtones would impact a constitutional liberty-based privacy claim, though at times we do cross those sorts of boundaries. Stev Sent from Steve Jamar's iPhone On Aug 15, 2009, at 1:57 PM, Paul Finkelman paul.finkel...@yahoo.com wrote: ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wisconsin convicts parents for denial of medical treatment
Yes indeed, and between drinking and alcoholism and liver damage (although in these cases I believe there are specific biochemical reactions that have been identified, which is not the case with abuse and later violence)--but notice that our sad experience attempting to criminalize liquor production and consumption (which, incidentally, was accompanied by a religious exception) has so far still warded off anything more than warnings and the occasional civil recovery in the case of tobacco. A lesson to be learned here, I think. On Wed, Aug 5, 2009 at 11:55 AM, Sanford Levinson slevin...@law.utexas.eduwrote: Wouldn’t Cathleen’s argument also apply to the relationship between smoking and cancer, given that one cannot predict with certainty that any given smoker will in fact come down with lung cancer? sandy -- *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Dr. Cathleen A. Mann *Sent:* Wednesday, August 05, 2009 10:44 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Wisconsin convicts parents for denial of medical treatment Yes, but what is being said is that there is a direct connection between childhood abuse and later criminal behavior. There is also an assumption that there is science to 'prove' this when there is not. I would very much like to see the brief you mentioned in one of your earlier posts. If you can send it to me or point me to it somewhere, I would like to read it.I am open to being educated and proven wrong. Cathleen A. Mann, Ph.D 1880 S. Pierce St. Unit 7 Lakewood, CO 80232 (303) 934-2828 Secure Fax: (303) 934-2892 This email is the intellectual property of the author. Please do not forward in whole or in part without first obtaining the express permission of the author. - Original Message - From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Wednesday, August 5, 2009 9:18:30 AM GMT -07:00 US/Canada Mountain Subject: Re: Wisconsin convicts parents for denial of medical treatment Cathleen-- No one on this list to my knowledge is claiming that there is a sure way to make predictions regarding any particular individual. Your persistence in making that argument is off-point. In any event, there are a lot of MDs and PhDs out there at Harvard, Yale, Stanford, etc., etc., that would find your blanket attacks on the studies regarding the effects of abuse very odd and unsupportable. Marci -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wisconsin convicts parents for denial of medical treatment
To some degree the argument is circular. As between unconsenting adults, it is certainly black-letter common law that any touching is a battery and any credible threat of it is an assault. However, under various guises, the law has also traditionally recognized some kind of privilege as between parent and child. The discussion here can be read to be about the scope of the privilege. Since most child-abuse cases will arise under state law, a common-law privilege might be relevant, and inasmuch as any claim for religious exemption would fall either under pre-Smith state religious freedom doctrine or a state RFRA, in states where these apply, centrality (responding here in part to Mark Scarberry) ought not to be an issue. As a fan of common-law approaches to religious freedom issues, you might find this line of reasoning attractive. On Tue, Aug 4, 2009 at 1:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: It also seems noteworthy to me that one of the arguments on the list for having any bruise-inflicting corporal punishment of children be criminal was equally applicable to minor spanking as well. The argument was, “I have to wonder if there is anyone on this list who would not consider it a battery (or assault depending on what your state calls what used to be common law battery) if someone deliberately hit them to the point of bruising them. Sounds like a tort or a crime to me, and I find it hard to imagine how a claim of religious belief would justify it. I suppose adults could consent to such interpersonal behavior. but since children cannot legally consent to such harms, I have to wonder how Vance can justify such abuse.” But I take it that everyone on the list would consider it a battery if someone spanked them even without bruising them, no? So when the logic of the arguments suggests the illegality of *all* corporal punishment, it seems reasonable for people who support some corporal punishment to think that the other side’s position would go beyond just prohibiting bruising. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven *Sent:* Tuesday, August 04, 2009 7:01 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Wisconsin convicts parents for denial of medical treatment Actually, it didn't. It began with an inquiry into what level of insult (in the broadest sense) to a child should be prosecuted as child abuse regardless of the justification based on religious or even secular concepts of parental discipline. I was attempting to draw a distinction between serious harm and minor bruises--my example was a black-and-blue bum, which of course would normally heal quickly. That *is* spanking. My suggestion is that the harm to the child be proven as a matter of fact, rather than presumed as a matter of law, in order to avoid defects in the legal adoption of theories that should not be graven in stone. On Mon, Aug 3, 2009 at 9:21 PM, Paul Finkelman paul.finkel...@yahoo.com wrote: Art: This discussion began with a defense of bruising children. That is hardly spanking. I think if you look at those beyond death row -- simply violent criminals - you will find abuse in almost every circumstance. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com --- On *Mon, 8/3/09, artspit...@aol.com artspit...@aol.com* wrote: From: artspit...@aol.com artspit...@aol.com Subject: Re: Wisconsin convicts parents for denial of medical treatment To: religionlaw@lists.ucla.edu Date: Monday, August 3, 2009, 9:08 PM Because a few seriously abused children become murderers, society needs to prohibit spanking? In a message dated 8/3/09 9:05:21 PM, hamilto...@aol.com writes: Paul is correct here. If you want to evidence of the causal connection between the home situation and criminal behavior, read the files of the individuals who are on death row. Not infrequently, it is hard to figure out who acted more heinously -- the parents of the death row inmate or the death row inmate himself. I'm not saying that home circumstances should be an adequate defense to murder. Rather, as a society it is foolish not to make every effort to stem harm to children. ** A Good Credit Score is 700 or Above. See yours in just 2 easy steps! ( http://pr.atwola.com/promoclk/100126575x1222846709x1201493018/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072hmpgID=115bcd=JulystepsfooterNO115 ) -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.eduhttp://mc/compose?to=religion...@lists.ucla.edu To subscribe, unsubscribe, change options, or get
Re: Wisconsin convicts parents for denial of medical treatment
I certainly am not saying that atheists *should* be prohibited from restraining their children, I was merely observing that there doesn't seem to be a well-developed constitutional doctrine whereby they could prevail against a legislative move to ban it, whereas there does seem to be such a doctrine with respect to religious parents. And I'm also not suggesting that corporal punishment is necessary or desirable in most, or even perhaps many, cases; but the push to ban it entirely, even in the absence of clear harm to the child (or based on an exaggerated tendency to find psychological harm) against conscientious parents who feel a religious compulsion to adhere to Biblical or traditional models smacks to me of class and religious prejudice. On Mon, Aug 3, 2009 at 11:28 AM, Steven Jamar stevenja...@gmail.com wrote: On Aug 3, 2009, at 9:50 AM, Vance R. Koven wrote: [snip] After all, a parent's glowering is useless without at least the implied credible threat of direct action if diplomacy fails. This is a highly contestable statement at least to the extent it implies the necessity of corporal punishment with respect to many if not most children. It may well be true that with some children if you spare the rod you spoil the child (even if you aren't an old testament adherent the principle may be sound), but with some if you use the rod you teach violence, and with others you never ever need corporal punishment. Some restraint of the child's freedom may be necessary at times, but even that is not needed with at least some children. And for others corporal punishment will not ever do any good. As to my prior point -- even if parental control was premised on religious teachings (and is for many people still), that hardly makes the case that the constitutional right of parents to control their children's upbringing is based in freedom of religion. Again, do you mean to suggest that atheists have no rights to control their kids? That statutes relating to age of emancipation are constitutionally valid only as to religious adherents? That Jewish kids are emancipated at age 14? Or are the statutes not unconstitutional for another reason? Surely parental rights derive at least in part from IXth Amendment, even if you don't like the right of privacy as a basis. (I submit that that is a terminology problem here -- the parental rights existed and exist under every theory of constitutional interpretation since the adoption of it, even if the term privacy is of recent vintage. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ 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.* ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wisconsin convicts parents for denial of medical treatment
To me, scientific principles are to be avoided in anything to do with the law. Phrenology and eugenics (sorry, Eugene) were once state-of-the-art science. Communism was considered scientific. Having been trained as a social scientist, I can tell you that those two words don't even belong in the same sentence, much less cheek by jowl. All the so-called sciences that deal with human behavior suffer from the same defect: for ethical and sometimes logistical reasons, we cannot subject people to a rigorously applied scientific methodology, and we cannot adequately isolate the thing being tested from the millions of other things that influence behavior. That's why so many of the scientific studies on virtually every topic are contradicted by other equally scientific studies. It does not require a suspicion of bad faith to draw the conclusion that science and human behavior are no better than nodding acquaintances; and every so often actual bad faith, prejudice and hubris manifest themselves in the investigation and interpretation of social studies (and even hard sciences). Just imagine if all those scientific truths had been ensconced in a legal system based on stare decisis? It's bad enough when legislative *policy* is based on science that proves an embarrassment fifty or fewer years later--which to some extent is a necessity--but to send people to jail based on crackpot pseudoscience, is something every decent society should resist. A degree of self-awareness and humility would go a long way here. Based on my admittedly anecdotal experience (but I've accumulated an awful lot of anecdotes over my life), children subjected to traditional child-rearing and discipline, short of battering and other major harm, will turn out fine or twisted, as their natures dictate. Same story with children raised on progressive principles. I realize this has strayed a bit from the original question, but I think it does relate to the deference the law should show--under a unified theory or multiple theories--to parents' choices of disciplinary philosophy. The law *ought* to defer to secular parents as much as to religious parents, but the latter should not be denied this deference just because the law has tied itself in knots over the basis for such deference to the former. Vance On Mon, Aug 3, 2009 at 11:38 AM, hamilto...@aol.com wrote: In response to Vance's question---Yes, objective standards are available from scientific sources. The question is whether a child is being harmed, and the level of harm can be determined by the extraordinary amount of research that is being done in the child abuse/child wellness arena. Legislatures are capable of drawing the line on the basis of these objective standards, and courts are capable of factfinding on the basis of experts. Obviously, there will be gray areas, but the scientific information goes a long way to rebutting the implicit claims by those protecting parental rights that children's well-being is improved by pain and/or browbeating. Thus, the issue is children's rights to bodily integrity and protection from serious harm vs. parental rights to control their children. That balancing is built into the law via Pierce v. Society of Sisters and Prince v. Massachusetts. Marci -Original Message- From: Vance R. Koven vrko...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Aug 2, 2009 9:57 pm Subject: Re: FW: Wisconsin convicts parents for denial of medical treatment Well really, I think some of you are assuming your conclusions. Whether something is child abuse is what is to be determined, not what is to be assumed. Those of us of a certain age may recall being spanked. It did no lasting harm, and may have done considerable good. However, whether it did or not, it was not considered a matter for state intervention, and civilization did not collapse on that account. The question is not, as Marci thinks, whether the law takes the side of the parent or the child, it's whether and under what conditions the law (i.e., the state) takes it unto itself to take sides and to intervene in intra-family affairs. We have consensus on serious bodily harm, maybe even on visible physical injuries like black eyes or bloody noses; when you get into speculating about psychological and social injuries it starts to shade over into state ownership of children. My smaller point is that religions have always had rather a lot to say about the relationships within families, particularly between parents and children, which is a zone that a free exercise clause worthy of the name ought to respect. And my larger point was, and remains, whether the state is bound, regardless of any other consideration (such as religious freedom) to take whatever view of child-rearing the secular upper middle class decides at any given moment to take. We have developed a rather Dickensian, and some might say irrationally
Re: The impropriety of religious exemptions to child abuse laws
intervenes shouldn't be determined by whether the parent is acting out of religious or secular motives, it is only in the case of religiously motivated parents that there is a legal hook on which to hang an interest in parenting methodology that requires the state to justify itself on the basis of compelling interest--unless you can engineer a free speech interest, which seems to me a stretch. It would be ironic indeed if the justification for parental authority is the concept of privacy. _ Get your vacation photos on your phone! http://windowsliveformobile.com/en-us/photos/default.aspx?OCID=0809TL-HM Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 -- Get back to school stuff for them and cashback for you. Try Bing™ now.http://www.bing.com/cashback?form=MSHYCBpubl=WLHMTAGcrea=TEXT_MSHYCB_BackToSchool_Cashback_BTSCashback_1x1 -- Windows Live™: Keep your life in sync. Check it out.http://windowslive.com/explore?ocid=PID23384::T:WLMTAGL:ON:WL:en-US:NF_BR_sync:082009 ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: FW: Wisconsin convicts parents for denial of medical treatment
issues for Law Academics *Subject:* Re: Wisconsin convicts parents for denial of medical treatment I -- ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: still waiting for concrete examples
To say nothing of a race discrimination case, since this condition apparently primarily affects African Americans. Is this where the phrase too clever by half comes in? Vance On Mon, Jun 22, 2009 at 8:29 PM, Steven Jamar stevenja...@gmail.com wrote: well, out of rfra and into ada? since it is a medical necessity not to shave, the state runs into ada. it would seem that a closely cropped beard would meet the medical need as opposed to a long beard which could be a bigger problem. steve On Mon, Jun 22, 2009 at 8:24 PM, artspit...@aol.com wrote: It would have been very hard to prove the Department's bad motivation. The Fire Department would have argued that our case made it reexamine the facial hair issue, and it concluded that safety required everyone to be clean-shaven. (That's essentially what it did say.) And I'm not so sure that issuing a religion-neutral regulation because your lawyer advises you that if you continue to make medical exceptions you'll also have to make religious exceptions makes the regulation non-neutral. It's not as if there was no support for the Department's safety argument. There was support. Art Spitzer ** An Excellent Credit Score is 750. See Yours in Just 2 Easy Steps! ( http://pr.atwola.com/promoclk/100126575x1221823273x1201398689/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072hmpgID=62bcd=JuneExcfooterNO62) ___ 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 Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY Religious Corporations Law
Having statutes with apparently mandatory organizational provisions directed at religious organizations is problematic for the reasons Doug and the other signatories of the Connecticut letter mention. There are subtler but none the less troubling issues if a state says that a religious organization can, if it wishes to incorporate, use the generic nonprofit corporation law, without providing ample opt-out provisions for those aspects of the normal corporate structure that conflict with the religion's tenets. By and large, this isn't an issue when the statute allows the charter or bylaws to override statutory defaults, since an individual church can implement any changes in organization later mandated by the church's denomination without resort to any public body. Where such opt-out is lacking, though, there might be a problem of unconstitutional conditions, since the benefits of limited liability and perpetual existence have long since ceased to be discretionary with the state just by virtue of its issuing a corporate charter. When Madison vetoed the Arlington church's charter, that wasn't the case--corporations had to be chartered by special act of the legislature. It seems to me that income tax exemption, whether federal or state, is a different issue entirely. Exemptions, at least at the federal level (many states simply rubber-stamp the federal exemption), are not entirely ministerial for the general run of nonprofit organizations (and there's no requirement that the organization be incorporated). It seems that the only mandatory provisions noted on Form 1023 regarding organizational structure require a statement of exempt purpose and a commitment to using the organization's assets solely for exempt purposes on dissolution. I'm not aware of cases where these requirements have been challenged by anyone on religious grounds. I'm also not sure whether the organization would have to satisfy the same non-inurement tests that, say, an educational or civic organization would; if so, these might provide grounds for religious objection. On Thu, Mar 12, 2009 at 10:56 AM, Friedman, Howard M. hfri...@utnet.utoledo.edu wrote: Probably the earliest development of the corporate form in Roman law and English law was the corporation sole that permitted property to pass from one bishop to the next when the bishop died. This avoided the inheritance problems that would be present if title were held in the personal name of the bishop. Some of the same issues would likely arise if religious entities today tried to operate in non-corporate form. Beyond this, do we really want clergy holding property, often purchased with funds from their congregants, in their own names with the potential for abuse that this could pose? Also, to the extent that religious corporation statutes impose greater restrictions on incorporated churches than are imposed on other incorporated non-profits and charities, isn't there an equal protection problem? Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com *Sent:* Wed 3/11/2009 3:57 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: NY Religious Corporations Law The question here is whether you can satisfy the rule against judicial oversight of ecclesiology and permit the states to serve their legitimate interest in overseeing those that obtain corporation status. Religious entities need and/or want to be able to operate with the benefits of a corporation, including property ownership by an entity that surpasses the lives of any particular individuals and limited liability. Incorporation is voluntary, so why isn't there an argument that if they choose incorporation and its benefits, they have to agree to certain state oversight? While it is relatively easy to point to potential constituitonal difficulties in the laws as written, there are difficult issues getting the balance correct. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 ___ 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. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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
Re: Can religious and secular courts exist in the same nation?
and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Can religious and secular courts exist in the same nation?
We've discussed this a bit on the list before, but I don't see why in principle religious courts should not be treated pretty much as commercial arbitration is: as a consensual alternative to the state legal system (with enforcement permissible through the national courts where required). In all such cases, the national legal system provides an umbrella of protections, including among other things the necessity for consent and honesty in obtaining the agreement by which the parties submit to the alternative jurisdiction. It should not be an objection in most instances that the substantive rights of the parties differ from the norms of the secular courts. There are very few rights, even constitutional ones, the exercise of which in particular circumstances cannot be waived. For example, people waive their free speech rights in private contexts all the time (think of non-disparagement clauses and even confidentiality agreements, including those attached to litigation settlement agreements); they waive statutory rights such as nondiscrimination rights and antitrust rights; and so on. Some things cannot be waived, such as one's right to be free as opposed to enslaved, but of course this is understood to be a matter of the perpetuity of the arrangement--any employment agreement restricts one's freedom of action to an extent--and the mechanism for enforcement (prohibition of contrary employment rather than specific performance). One also is restricted in waiving rights of third parties (e.g. one's children), which might create some issues under religious law. Still, the general principle ought to be that as to the consenting party an agreement to refer most matters to religious courts ought to be upheld and enforced by the secular courts. I frankly don't see what Matthew or Luke (or Mark or John, for that matter) have to say on the matters quoted below have to do with the subject. Vance On Wed, Nov 19, 2008 at 9:37 AM, JOHN LOFTON [EMAIL PROTECTED] wrote: Can religious secular courts exist in the same nation? Excellent question the answer to which is: Matthew 6:24 24 No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon. (KJV) Luke 11:17 17 But he, knowing their thoughts, said unto them, Every kingdom divided against itself is brought to desolation; and a house divided against a house falleth. (KJV) John Lofton, Editor, TheAmericanView.com Recovering Republican Accursed is that peace of which revolt from God is the bond, and blessed are those contentions by which it is necessary to maintain the kingdom of Christ. -- John Calvin. -Original Message- From: [EMAIL PROTECTED] To: Religionlaw@lists.ucla.edu Sent: Wed, 19 Nov 2008 8:54 am Subject: Can religious and secular courts exist in the same nation? An interesting piece in today's *NY Times*. http://www.nytimes.com/2008/11/19/world/europe/19shariah.html? Bobby Robert Justin Lipkin Distinguished Professor of Law Widener University School of Law Delaware * *Ratio Juris, Contributor: http://ratiojuris.blogspot.com/* Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/* -- Get the Moviefone Toolbarhttp://pr.atwola.com/promoclk/10075x1212774565x1200812037/aol?redir=http://toolbar.aol.com/moviefone/download.html?ncid=emlcntusdown0001. Showtimes, theaters, movie news more! ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Traveling over the river or through the woods this holiday season? Get the MapQuest Toolbarhttp://pr.atwola.com/promoclk/10075x1212816426x1200798402/aol?redir=http://www.mapquest.com/toolbar?ncid=emlwemqmq0001. Directions, Traffic, Gas Prices More! ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
Re: Suing God
As an old Equity draftsman (or draughtsman) myself I appreciate the GS reference. For any in the Boston area, the Harvard Gilbert Sullivan Players are performing Iolanthe (whence comes Will's quote (and mine too) this December. Vance On Fri, Oct 24, 2008 at 9:36 AM, Will Linden [EMAIL PROTECTED] wrote: I read that the Nebraska lawsuit against God was dismissed. Does anyone have the details? News stories say the ground was lack of evidence of service. This issue was raised in Mayo vs Satan and his Staff... but I think it would not be a problem when the respondent is omnipresent, and not just highly maneuverable. (Obligatory popular culture reference.) Perhaps An affidavit from a thunderstorm, or a few words on oath from a heavy shower, would be treated with the seriousness they deserve. ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Judicial enforcement of Islamic dowry-on-divorce agreements
___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: msnbc.com: Case of fully veiled woman roils France
What interests me in the story is the statement--about which nobody seems to have commented--that the woman professed no knowledge of the personal freedoms French law grants to women and all individuals. Having no knowledge of French immigration law, and precious little of US immigration law, I would have expected this to be the handle for denying citizenship, namely that she had not sufficiently familiarized herself with the fundamental laws of the country. Whether or not she chooses to avail herself of these liberties is a different matter; but one should know what the options are. Vance On Thu, Jul 17, 2008 at 5:20 AM, Joel Sogol [EMAIL PROTECTED] wrote: Case of fully veiled woman roils France Dissenting voices are wondering whether France went too far in denying citizenship to a Muslim woman who sheaths herself in a head-to-toe veil, saying she had not assimilated into society. http://www.msnbc.msn.com/id/25707374/from/ET/ Joel L. Sogol Attorney at Law 811 21st Avenue Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0967 [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Question about English law on religion and marriages
Here's an excerpt from the Civil Partnership Act 2004, Ch. 33 §6 (I claim fair use for this short excerpt under governing US law--Eugene can defend me): * 2004 CHAPTER 33 * Butterworths UK Statutes Copyright 2008, Butterworths Tolley UK a division of Reed Elsevier, Inc. All rights reserved. *** THIS DOCUMENT IS CURRENT THROUGH 22 FEBRUARY, 2008 *** *CIVIL **PARTNERSHIP** ACT 2004* *2004 CHAPTER 33* *PART 2 **CIVIL** PARTNERSHIP:** ENGLAND AND WALES* *Registration procedure: general* Royal Assent [18 November 2004] Civil Partnership Act 2004, Ch. 33, s. 6 (Eng.) *6 Place of registration* (1) The place at which two people may register as civil partners of each other-- (a) must be in England or Wales, (b) must not be in religious premises, and (c) must be specified in the notices, or notice, of proposed civil partnership required by this Chapter. (2) Religious premises means premises which-- (a) are used solely or mainly for religious purposes, or (b) have been so used and have not subsequently been used solely or mainly for other purposes. [(3) Subsections (3A) and (3B) apply in the case of registration under the standard procedure (including that procedure modified as mentioned in section 5). (3A) The place must be-- (a) on approved premises, or (b) in a register office. (3B) If it is in a register office, the place must be open to any person wishing to attend the registration. (3C) In this Chapter register office means a register office provided under section 10 of the Registration Service Act 1953.] On Fri, Apr 18, 2008 at 12:44 PM, Volokh, Eugene [EMAIL PROTECTED] wrote: An English newspaper site reports: http://www.islingtongazette.co.uk/content/islington/gazette/news/story.a spx?brand=ISLGOnlinecategory=newstBrand=northlondon24tCategory=newsis lgitemid=WeED16%20Apr%202008%2013%3A51%3A32%3A940http://www.islingtongazette.co.uk/content/islington/gazette/news/story.aspx?brand=ISLGOnlinecategory=newstBrand=northlondon24tCategory=newsislgitemid=WeED16%20Apr%202008%2013%3A51%3A32%3A940 Newington Green Unitarian Church, which the 18th century feminist Mary Wollstonecraft once attended, has announced it will not hold marriages until it is able to conduct civil partnerships for gay couples At the moment, the law bans any religious service from taking place during a gay civil partnership Is that really the law in England? Many thanks, 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Yoder and homeschooling rights
To the extent the court relies on the cultural extinction factor as distinguishing Yoder, doesn't that undercut the argument that parents cannot decide to home school for secular reasons? Or at the very least, doesn't it undercut the contention that there is a strong distinction between religious, philosophical and cultural motivations? Vance On Wed, Mar 5, 2008 at 4:22 PM, Volokh, Eugene [EMAIL PROTECTED] wrote: That is precisely what the parents in this case were arguing. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Judith Baer Sent: Wednesday, March 05, 2008 1:09 PM To: 'Law Religion issues for Law Academics' Subject: RE: Yoder and homeschooling rights Yoder involved children whose parents' religion (Amish) accepted education given outside of the home for grades one through eight but mandated that children not continue their education in a public or private school past the eighth grade. The Yoder court rejected the notion that parents have a universal right to refuse to obey a state's compulsory education law. What if you're homeschooling for religious reasons? Here in Texas, a lot of parents do. Judy Baer Texas AM ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Archbishop Williams and Sharia Courts
Not being a family law expert, I can't make any definitive comment, and possibly not even a coherent one, but my recollection is that courts will look more closely at prenups where there is an indication, not just of change of mind, but change of position--for example, religious conversion, spousal bankruptcy--that would have affected a party's consent ab initio. Plus there are those minimum standards you're referring to: if the whole body of EU human rights law (as on the books, not, as we have seen, as they are (un)enforced) is incorporated into this consideration, doesn't the exception swallow the rule? Should a court recognize a divorce, for example, obtained by the husband's unilateral threefold recitation I divorce you without looking into the substantive protections offered to the wife and how custody of children and visiting rights are administered? And if it will only enforce the divorce if these secular standards are met, what's the point of deferring to the religious law? I'm more comfortable talking about choice of law and arbitration analogies, but even there you have public policy exceptions to enforcement. In the US states are constrained in applying public policy exceptions by the Full Faith and Credit clause, against other states' rules, and by the Supremacy Clause in the case of the Federal Arbitration Act (which however allows a court to decline to enforce an arbitration clause on grounds applicable to enforcement of contracts generally, so for example a showing of duress will defeat the arbitration clause). Vance On Feb 7, 2008 11:05 PM, Volokh, Eugene [EMAIL PROTECTED] wrote: Wouldn't the current treatment of prenuptial agreements offer a useful analogy? (I've heard that English courts generally haven't recognized them, and that would be an analogy, too, but let's assume that they are recognized.) Such agreements, as I understand it, are generally enforceable, even against a spouse who changes his or her minds, and notwithstanding the possible unfairness to either party. On the other hand, as I understand it there are some substantive minimums below which the prenuptial agreement's provisions can't go, and there are procedural rules, too. If such secular agreements are allowed, it seems to me religious ones should be as well, and on much the same terms. Eugene -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Thursday, February 07, 2008 7:23 PM To: Volokh, Eugene; religionlaw@lists.ucla.edu Subject: RE: Archbishop Williams and Sharia Courts the latter might make some sense, but might also leave some people -- women especially -- deprived of civil rights; furthermore, what happens to someone who leaves the faith? Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 02/07/08 8:04 PM Is the Archbishop talking about different legal rules for different communities selected by government decision, or just about binding arbitration (in whatever system, religious or otherwise, of their choice) for those parties who so agree by contract? I had assumed it was the latter, but maybe I'm mistaken. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, February 07, 2008 4:58 PM To: Law Religion issues for Law Academics Subject: Re: Archbishop Williams and Sharia Courts This is an interesting issue that I am currently studying on a comparative basis -- particularly in parts of Africa where you can have all sorts of personal law (family and inheritance mostly) determined by different systems. In Mauritania you can have the general civil law, Islamic law, pastoral customary law, or nomadic customary law control. South Africa is struggling with this now as well with its general civil law, a large population that is Muslim, and various indigenous practices. I plan a trip to South Africa in 2010 to study this, in between world cup games . . . :) Steve On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote: I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally
Re: Archbishop Williams and Sharia Courts
I hope you're not suggesting that Gordon Brown might be wondering out loud who will rid him of this meddlesome priest? On Feb 7, 2008 3:15 PM, Robert O brien [EMAIL PROTECTED] wrote: Of course, in Britain the conflict regarding church law and government law goes back to the conflict regarding Becket Archbishop of Canterbury and Henry II regarding which court will try two minor priests concerning charged with murder. That led to a group of knights killing Becket in his cathedral. Robert O'Brien - Original Message - *From:* Vance R. Koven [EMAIL PROTECTED] *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Thursday, February 07, 2008 12:55 PM *Subject:* Archbishop Williams and Sharia Courts I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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.
Archbishop Williams and Sharia Courts
I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Photographer's right to refuse to photograph a commitment ceremony?
The New Mexico RFRA's substantive section says: § 28-22-3. Religious freedom protected; exceptions A government agency shall not restrict a person's free exercise of religion unless: A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. where free exercise of religion is defined as an act or a refusal to act that is substantially motivated by religious belief. I take it that the photographer would not have difficulty meeting the definition of free exercise; the issues then becomes whether the anti-discrimination law is a rule of general applicability (surely it is) that does not *directly* discriminate against or among religions, or whether there is a compelling interest. I think at this point I have mastered the obvious. The statute was enacted in 2000, and so far there don't seem to have been any cases under it, at least none that Lexis reveals. Based on my perhaps somewhat cynical view that state courts will wherever possible want to vindicate a state statute as opposed to an individual right, and will bend heaven and earth to do so when the right is being asserted by someone not on the official list of protected human subspecies, I will predict that if the matter comes to trial and appeal, New Mexico courts would rule in favor of the anti-discrimination law. The way the act is drafted, I don't see what the second clause of A adds to the first clause, since a law of general applicability, so far as I understand the principle, cannot by its nature target religion or a specific religion. The soft underbelly of the analysis thus remains the compelling interest test, and there is no escaping the result-driven nature of that test. If you focus on the remedial purpose of the anti-discrimination law, and its clientèle, you conclude that there is a compelling interest. If you focus on the remedial purpose of RFRA and *its* clientèle, then maybe not. When you regard the proper sphere of RFRA as protecting the interests of religious persons against direct state interference in their practice that does not affect any side-group, then the religious person wins; when the client base of RFRA seeks to advance an interest apparently against the client base of anti-discrimination laws, the latter wins. This, as I said, is not a *rule* of decision, but it seems to be a predictor of decision. Vance On Jan 29, 2008 1:26 PM, Volokh, Eugene [EMAIL PROTECTED] wrote: The ADF reports that the New Mexico Human Rights Bureau is holding a hearing on a complaint against a husband-and-wife photography business which who refused to photograph a same-sex commitment ceremony. http://www.alliancedefensefund.org/news/story.aspx?cid=4369 I take it that the complaint is brought under N.M. Stats. sec. 28-1-7(F), which bars any person in any public accommodation [from making] a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, Sec. 28-1-2(H) defines public accommodation quite broadly, as any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private. Say that the owners of Elane Photography -- specifically Elaine Huguenin herself, who seems to be the principal photographer (http://www.elanephotography.com/; warning: annoying soundtrack) -- have a sincere religious objection to participating in what they see as a sinful occasion. May they claim an exemption under the New Mexico RFRA? 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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
Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle?
Shouldn't the issue be framed as whether the judge is granting greater solicitude to religious aspects of the child's upbringing than to non-religious ones of comparable influence? If the father had suddenly developed an extreme interest in, say, raucous rock concerts (weird people, drums, dancing), contrary to the household ambiance when the parents were married, would an order such as this seem so exceptional? I think in a lot of these cases, where post-divorce one parent undergoes a lifestyle transformation (in either direction--harking back to the original case of the father who became ultra-Orthodox or the mother who recanted orthodoxy), the court is saving the parent from him- or herself by limiting the child's exposure while the child could develop a strong aversion to the wayward parent. Older children, of course, are well-versed in rolling their eyeballs at their parents' idiosyncrasies (though I wonder if that too is a feint). Vance On Jan 23, 2008 7:14 PM, Ed Brayton [EMAIL PROTECTED] wrote: The more I dig into cases similar to this the more I think that judges should not be allowed to consider religion at all. It's just too ripe for abuse, too open for a judge to be prejudiced against one party to the case because of their religion or (more commonly) their lack of it. I am astonished at the fact that appeals courts have refused to overturn such rulings even when they've been outrageously wrong. Ed Brayton -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, January 23, 2008 4:22 PM To: Law Religion issues for Law Academics Subject: Shielding child whose mother is Catholic from father's Wiccan lifestyle? A recent New York state appellate court decision upheld a father's petition for overnight visitation, but stressed that this was done only because the father and his fiancee agreed to refrain from exposing the child to any ceremony connected to their religious practices, and because the Family Court could mandate, in the visitation order, protections against her exposure to any aspect of the lifestyle of the father and his fiancée which could confuse the child's faith formation. I tracked down the trial court decision, and it turns out the father's and his fiancée's lifestyle and religious practices were Wiccan. The trial court concluded that the child (age 10 at the time of the appellate court's decision) is too young to understand that different lifestyles or religions are not necessarily worse than what she is accustomed to; they are merely different. For her, at her age, different equates to frightening. So when her father and her father's fiancé[e] take her to a bonfire to celebrate a Solstice, and she hears drums beating and observes people dancing, she becomes upset and scared. There was no further discussion in the trial court order of any more serious harm to the child, though of course there's always the change that some evidence was introduced at trial but wasn't relied on in the order. Given this, should it be permissible for a court to protect the child from becoming upset and scared by ordering that a parent not expos[e the child] to any aspect of [the parent's] lifestyle ... which could confuse the child's faith formation? 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. ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle?
I'm a bit confused by Prof. Conkle's last sentence. The judges have been explicitly ruling based on the best interests standard, which is the only one they are permitted to apply. The question is not whether religion should be exempt from the standard, but whether religion should be a favored or disfavored component of it. In the case Eugene brought up, it seems that the judge was very explicitly evaluating the impact of the father's religious conversion on the child's personality formation, which is quite appropriate. That such evaluations can serve as a subterfuge for a judge's personal predilections is certainly a danger that should be guarded against, but not at the cost of removing religious factors entirely from the evaluation; they should be part of the consideration, to the same extent as anything else that might affect the welfare of the child. On Jan 24, 2008 8:19 AM, Conkle, Daniel O. [EMAIL PROTECTED] wrote: Ordinarily, the government, including judges, properly has little or no say in parental decisionmaking, lifestyle choices, etc., even if those parental choices or activities might not (in the view of the government, including judges) be in the best interests of the child. It seems to me that the difficulty in the particular context of custody and visitation is that the government, through judges, necessarily involves itself in these matters. The question then is whether or to what extent the religious aspects or elements of particular parental choices or activities should render them immune from the best interest evaluation that otherwise would be applicable in this specific corner of the law. I think Carl Schneider has written helpfully on these questions. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -- *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of *Vance R. Koven *Sent:* Thursday, January 24, 2008 7:53 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle? Shouldn't the issue be framed as whether the judge is granting greater solicitude to religious aspects of the child's upbringing than to non-religious ones of comparable influence? If the father had suddenly developed an extreme interest in, say, raucous rock concerts (weird people, drums, dancing), contrary to the household ambiance when the parents were married, would an order such as this seem so exceptional? I think in a lot of these cases, where post-divorce one parent undergoes a lifestyle transformation (in either direction--harking back to the original case of the father who became ultra-Orthodox or the mother who recanted orthodoxy), the court is saving the parent from him- or herself by limiting the child's exposure while the child could develop a strong aversion to the wayward parent. Older children, of course, are well-versed in rolling their eyeballs at their parents' idiosyncrasies (though I wonder if that too is a feint). Vance On Jan 23, 2008 7:14 PM, Ed Brayton [EMAIL PROTECTED] wrote: The more I dig into cases similar to this the more I think that judges should not be allowed to consider religion at all. It's just too ripe for abuse, too open for a judge to be prejudiced against one party to the case because of their religion or (more commonly) their lack of it. I am astonished at the fact that appeals courts have refused to overturn such rulings even when they've been outrageously wrong. Ed Brayton -Original Message- From: [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, January 23, 2008 4:22 PM To: Law Religion issues for Law Academics Subject: Shielding child whose mother is Catholic from father's Wiccan lifestyle? A recent New York state appellate court decision upheld a father's petition for overnight visitation, but stressed that this was done only because the father and his fiancee agreed to refrain from exposing the child to any ceremony connected to their religious practices, and because the Family Court could mandate, in the visitation order, protections against her exposure to any aspect of the lifestyle of the father and his fiancée which could confuse the child's faith formation. I tracked down the trial court decision, and it turns out the father's and his fiancée's lifestyle and religious practices were Wiccan. The trial court concluded that the child (age 10 at the time of the appellate court's decision) is too young to understand that different lifestyles or religions are not necessarily worse than what she is accustomed to; they are merely different
Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle?
I think Steve's message illustrates exactly the point. What's in the best interests of *the* child is a matter to be decided with reference to the particular child in question and to his/her family's unique circumstances. It is not a matter for ideology. If a child is raised in a household in which differences are extolled and exhibited, then being exposed to them post-divorce doesn't in itself seem likely to harm the child. But where a family has adhered to a particular framework, and that framework is suddenly jolted, not only by the divorce but by radical changes in what had been viewed as a fundamental aspect of child-rearing, then it seems perfectly consistent with the legal standard, psychology and the still largely accepted role of the family, for a judge to ascertain whether harm is likely to occur, and take reasonable actions to prevent harm. Imposing a Unitarian world view on, say, a Pentecostal child who had consistently been reared that way, while it may seem to Steve like a good thing, would be the worst kind of judicial bullying, as would an order for a child raised in a Unitarian household to be sent off to Catholic school, where in each case the judge reasonably concluded that this would create a cognitive dissonance that could adversely affect the child's emotional stability. Vance On Jan 24, 2008 9:32 AM, Steven Jamar [EMAIL PROTECTED] wrote: I'm quite troubled by the idea that children are developmentally harmed by exposure to more than one idea, religious or otherwise. And that a judge can decide that only one religion is not harmful, and decide which one. How about -- step parents -- that is confusing. Or remaining single. That is confusing. Or sexual orientation. Or one is an environmentalist minimalist and the other a hummer -level consumerist. Would it be the same if one was a catholic and the other episcopalian? or two sects of judaism? or two brands of evangelical christian? or mormon and 7th day adventist? Barring a child from knowing a parent strikes me as not in the best interest of the child. As with anything else, there are, of course, limits -- but merely practicing a garden-variety of paganism or wiccan hardly seems dangerous to the mental health of anyone. In our Unitarian Universalist congregation we explicitly teach the kids about alternative views and beliefs and emphasize the individual and collective search. I guess we are harming all of our kids and they should be taken away from us by child protective services! No. This one goes too far. Steve On Jan 24, 2008 7:18 AM, Conkle, Daniel O. [EMAIL PROTECTED] wrote: Maybe I wasn't clear. I wasn't suggesting how these cases should be decided, but only attempting to highlight what I think to be the underlying issue or problem. (Maybe my point was so obvious that it could have gone without saying.) I haven't studied this particular area with care, but I'm inclined to agree with what Vance writes in most recent posting. Dan Conkle -- *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of *Vance R. Koven *Sent:* Thursday, January 24, 2008 8:44 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle? I'm a bit confused by Prof. Conkle's last sentence. The judges have been explicitly ruling based on the best interests standard, which is the only one they are permitted to apply. The question is not whether religion should be exempt from the standard, but whether religion should be a favored or disfavored component of it. In the case Eugene brought up, it seems that the judge was very explicitly evaluating the impact of the father's religious conversion on the child's personality formation, which is quite appropriate. That such evaluations can serve as a subterfuge for a judge's personal predilections is certainly a danger that should be guarded against, but not at the cost of removing religious factors entirely from the evaluation; they should be part of the consideration, to the same extent as anything else that might affect the welfare of the child. On Jan 24, 2008 8:19 AM, Conkle, Daniel O. [EMAIL PROTECTED] wrote: Ordinarily, the government, including judges, properly has little or no say in parental decisionmaking, lifestyle choices, etc., even if those parental choices or activities might not (in the view of the government, including judges) be in the best interests of the child. It seems to me that the difficulty in the particular context of custody and visitation is that the government, through judges, necessarily involves itself in these matters. The question then is whether or to what extent the religious aspects or elements of particular parental choices or activities should render them immune from the best interest evaluation that otherwise would
Re: Shielding child whose mother is Catholic from father's Wiccanlifestyle?
In a situation where the child has *already* been exposed to differences in outlook between the two parents (as in Ed's personal example or in Alan's), then it seems highly unlikely that anyone could show psychological injury by the child's continuing to be so exposed following a divorce. Nobody here seemed to take great exception to the New York case cited earlier that required a lapsed mother to continue raising her child in orthodox Judaism. She and her husband had agreed on this before the divorce, and the evidence showed it was the child's strong preference. Suppose the mother hadn't just lapsed, but had a Road to Damascus conversion and was now an evangelical Christian. I don't think that would change the result in the case. If the mother really wanted the child to attend Christian worship, and the child balked or started wetting the bed or gave other evidence of trauma, I doubt a court would--or should--have any hesitation in ordering her not to do it. In these cases, with such constraints in place, it becomes the constrained parent's responsibility to maintain the kind of relationship with the child that will not traumatize the child. Is there a Jewish or Christian or Wiccan way to ride a Ferris wheel? This doesn't seem to be such a hard thing to grasp, though I have no doubt such things are beyond the ken of many a person. On Jan 24, 2008 1:12 PM, Brownstein, Alan [EMAIL PROTECTED] wrote: I have no clear answer to this problem – but I think part of what is troubling to me about the potential scope of these constraints on visitation orders is that they may make it difficult for the child to have any meaningful relationship with one parent. A devout individual may make his or her religious practices a regular part of life. Could the court prohibit one parent from saying a prayer before a meal if the child was present? If a Christian parent wants the child to be home on Sunday (to attend Church and to observe the Sabbath) and the other parent is an observant Jew so that if the child visited that parent on Saturday the child would necessarily be exposed to Jewish religious practices, how should a court resolve that tension. Would it be appropriate for the court to rule that only one parent could ever be with the child on weekends? Alan Brownstein *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of *Vance R. Koven *Sent:* Thursday, January 24, 2008 8:52 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Shielding child whose mother is Catholic from father's Wiccanlifestyle? I think Steve's message illustrates exactly the point. What's in the best interests of *the* child is a matter to be decided with reference to the particular child in question and to his/her family's unique circumstances. It is not a matter for ideology. If a child is raised in a household in which differences are extolled and exhibited, then being exposed to them post-divorce doesn't in itself seem likely to harm the child. But where a family has adhered to a particular framework, and that framework is suddenly jolted, not only by the divorce but by radical changes in what had been viewed as a fundamental aspect of child-rearing, then it seems perfectly consistent with the legal standard, psychology and the still largely accepted role of the family, for a judge to ascertain whether harm is likely to occur, and take reasonable actions to prevent harm. Imposing a Unitarian world view on, say, a Pentecostal child who had consistently been reared that way, while it may seem to Steve like a good thing, would be the worst kind of judicial bullying, as would an order for a child raised in a Unitarian household to be sent off to Catholic school, where in each case the judge reasonably concluded that this would create a cognitive dissonance that could adversely affect the child's emotional stability. Vance ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle?
With all respect, I think Ed is confusing two different issues. Of course, a judge that awards custody or enters an order *because one parent's religion is better than the other's* is not supportable, and may have constitutional implications. But that's not what we're talking about. We're talking about a considered judgment (presumably based on some psychological evidence) that without such an order the child will suffer psychological trauma. It's just not worth sacrificing the child to vindicate an ideological predisposition. On Jan 24, 2008 1:00 PM, Ed Brayton [EMAIL PROTECTED] wrote: I could not agree more with Steve Jamar on this. The assumption that being exposed to different ideas is a bad thing is simply wrong. I know this from my own experience, having been raised by a Pentecostal and an atheist (who are still married after many decades). A judge making a custody decision might well have looked at that and awarded custody to my mother to avoid having me confused and that would have been very bad thing indeed (there was no custody battle, we could live with whichever parent we chose and could change our mind at any time, and I chose to live with my father, who remarried to my Pentecostal stepmother). Not only was it not unhealthy to be raised in that allegedly confusing environment, I think it was a key to the development of traits I consider immensely valuable. And the real problem here, as always, is just how prone this kind of thing is to bias toward religion. Imagine a circumstance where a couple has raised a child without any religion or church attendance, but in the course of the divorce one of them has become a religious convert and wants to take their child to church with them. In case after case where the circumstances are the opposite, where the child has gone to church during the marriage but one parent is not religious and does not intend to take them to church, judges will consider this a strong point in favor of the religious parent getting custody on the grounds that it will continue his previous religious upbringing. But in this situation, where the previous upbringing was not religious, it is highly unlikely that a judge would consider this a point against the religious parent. Having now looked up an enormous number of these cases, it is obvious to me that the bias is nearly always in favor of religion and the pretenses on which that is based are applied in a highly selective manner to reach that outcome. Ed Brayton *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of *Steven Jamar *Sent:* Thursday, January 24, 2008 9:33 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle? I'm quite troubled by the idea that children are developmentally harmed by exposure to more than one idea, religious or otherwise. And that a judge can decide that only one religion is not harmful, and decide which one. How about -- step parents -- that is confusing. Or remaining single. That is confusing. Or sexual orientation. Or one is an environmentalist minimalist and the other a hummer -level consumerist. Would it be the same if one was a catholic and the other episcopalian? or two sects of judaism? or two brands of evangelical christian? or mormon and 7th day adventist? Barring a child from knowing a parent strikes me as not in the best interest of the child. As with anything else, there are, of course, limits -- but merely practicing a garden-variety of paganism or wiccan hardly seems dangerous to the mental health of anyone. In our Unitarian Universalist congregation we explicitly teach the kids about alternative views and beliefs and emphasize the individual and collective search. I guess we are harming all of our kids and they should be taken away from us by child protective services! No. This one goes too far. Steve On Jan 24, 2008 7:18 AM, Conkle, Daniel O. [EMAIL PROTECTED] wrote: Maybe I wasn't clear. I wasn't suggesting how these cases should be decided, but only attempting to highlight what I think to be the underlying issue or problem. (Maybe my point was so obvious that it could have gone without saying.) I haven't studied this particular area with care, but I'm inclined to agree with what Vance writes in most recent posting. Dan Conkle -- *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of *Vance R. Koven *Sent:* Thursday, January 24, 2008 8:44 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Shielding child whose mother is Catholic from father's Wiccan lifestyle? I'm a bit confused by Prof. Conkle's last sentence. The judges have been explicitly ruling based on the best interests standard, which is the only one they are permitted to apply. The question is not whether religion should be exempt from the standard
Re: RFRA bars drawing blood for DNA database
I'm fascinated by the following statement in the court's opinion: We have reservations as to whether his beliefs are sincerely held, and the district court didn't make any findings on this issue. The government argues that Zimmerman's beliefs aren't sincere because of his previous drug use and tattoos, but it is possible that his beliefs have changed over time. Whatever might those tattoos have indicated? On Dec 19, 2007 9:39 AM, Joel Sogol [EMAIL PROTECTED] wrote: Here's a new twist on the subject: *Ninth Circuit reinstates federal criminal defendant's challenge under the Religious Freedom Restoration Act to having to provide a blood sample for the federal DNA database:* You can access today's per curiam decision of the U.S. Court of Appeals for the Ninth Circuithttp://www.ca9.uscourts.gov/at this linkhttp://www.ca9.uscourts.gov/ca9/newopinions.nsf/230D5EB769385190882573B4008102F2/$file/0650506.pdf?openelement. Unfortunately for the defendant, there are many ways to harvest his DNA, and it is unlikely that his religion proscribes them all. Posted at 01:11 PM http://howappealing.law.com/121807.html#030752by Howard Bashman [EMAIL PROTECTED] Joel L. Sogol 811 21st Ave. Tuscaloosa, ALabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RFRA bars drawing blood for DNA database
Quite so. Drawing blood wouldn't necessarily be strictly voluntary for that, though. I thought perhaps he'd tattooed the URL for the American Atheist Society or suchlike. Or maybe a heart with Christopher Hitchens in it. On Dec 19, 2007 2:04 PM, Steven Jamar [EMAIL PROTECTED] wrote: tats require needles sticking the skin and, I'm told, sometimes draw blood. On Dec 19, 2007, at 1:58 PM, Vance R. Koven wrote: I'm fascinated by the following statement in the court's opinion: We have reservations as to whether his beliefs are sincerely held, and the district court didn't make any findings on this issue. The government argues that Zimmerman's beliefs aren't sincere because of his previous drug use and tattoos, but it is possible that his beliefs have changed over time. Whatever might those tattoos have indicated? On Dec 19, 2007 9:39 AM, Joel Sogol [EMAIL PROTECTED] wrote: Here's a new twist on the subject: *Ninth Circuit reinstates federal criminal defendant's challenge under the Religious Freedom Restoration Act to having to provide a blood sample for the federal DNA database:* You can access today's per curiam decision of the U.S. Court of Appeals for the Ninth Circuithttp://www.ca9.uscourts.gov/at this linkhttp://www.ca9.uscourts.gov/ca9/newopinions.nsf/230D5EB769385190882573B4008102F2/$file/0650506.pdf?openelement. Unfortunately for the defendant, there are many ways to harvest his DNA, and it is unlikely that his religion proscribes them all. Posted at 01:11 PM http://howappealing.law.com/121807.html#030752by Howard Bashman [EMAIL PROTECTED] Joel L. Sogol 811 21st Ave. Tuscaloosa, ALabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] 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. Become the change you seek in the world. *-- Mahatma Gandhi.* Steven Jamar [EMAIL PROTECTED] ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Meditation room in community college
, the tract read in part. It should not be that you accept what entertains your desires and leave what opposes your desires; this is from the manners of the Jews. [T]he Jews and the Christians are described as the enemies of Allaah's religion. The document adds: Remember that you will never succeed while you follow these people. A poster on the room's door advertised a local lecture on marriage from an Islamic perspective, with useful tips for marital harmony from the Prophet's ... life. Other fliers invited students to join the Normandale Islamic Forum, or participate in Ramadan celebrations. One thing was missing from the meditation room: evidence of any faith but Islam. No Bible, no crucifix, no Torah Despite the room's Islamic atmosphere, [Dean of Student Affairs Ralph] Anderson says it is open to everyone. ... ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Check out Biologist fired for beliefs, suit says - The Boston Globe
Interesting set of facts and interesting procedural position. I find it hard to imagine a situation other than an actual religious organization where a person's religious belief system, without more, would be a BFOQ, so I don't think Woods Hole is on very solid ground there. Nobody seemed to think this person was doing a bad job until he mentioned his religious views. On the other hand, if he had requested reassignment as an accommodation to his religious views, and he was not performing work unrelated to its mission (IT, for example), I can understand, based on Woods Hole's main lines of work, its claim that it would be an unreasonable burden. The harassment claim, if he's only raising it now after losing at the administrative level, might conceivably be barred, though I gladly defer to those of you better versed in EEO law. Vance On Dec 7, 2007 12:40 PM, Joel Sogol [EMAIL PROTECTED] wrote: Click here: Biologist fired for beliefs, suit says - The Boston Globehttp://www.boston.com/news/local/articles/2007/12/07/biologist_fired_for_beliefs_suit_says/ Joel L. Sogol 811 21st Ave. Tuscaloosa, ALabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ,_._,___ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: InnerChange Litigation
There are several ways of looking at how PFM might or might not be liable for money damages here. The first thing that leapt to mind was as an agent for an undisclosed principal--since had it been known PFM was acting on behalf of the state, which was under a prohibition, then its acts would be immediately perceived as wrongful. However, the liability of an agent in this case is, so far as I know, limited to those with whom it transacts downstream. A taxpayer suit might be analogous to a derivative action by shareholders, in which the shareholders act in the name of the corporation to recover damages caused by the wrongful acts of corporate fiduciaries and agents. As others have pointed out, PFM, though, did not do anything inherently wrongful, they were only wrongful because committed willy-nilly in the name of the state; the inherently wrongful acts were committed by *other* state agents who appointed PFM to undertake its activities in the prisons. It would be highly salutary, though as far as I know it is unprecedented (other than by specific statute), for state officials to be personally liable to taxpayers for waste/misuse of state funds pursuing unlawful objectives; but that's not PFM's problem. If you take the old hoary approach of tracing the duties of the different parties, it seems as though the only party with any duty to taxpayers/citizens is the state itself. The state officials owe duties to the state to act within the scope of their engagement, and you can say the same for PFM, but its scope is radically different from theirs, and nobody has suggested (at least in this discussion) that PFM did not comply with its (ultimately invalid) mandate. Another route might be the doctrine of ultra vires, since plainly the state had no authority to appoint PFM as its agent to do what the state could not do directly. Modern corporate law has essentially eliminated actions on the ultra vires theory, but if I remember correctly, contracts ultra vires are void, not just voidable. On that theory PFM might have to give the money back, but I confess this is just theory-spinning on my part without examining any cases. It's been a *long* time since I needed to know this, either for teaching or practicing! Vance On Dec 5, 2007 12:45 AM, Christopher Lund [EMAIL PROTECTED] wrote: The points by Profesors Lupu, Green Lederman make a lot of sense, and I'll check out Brentwood Academy, which sounds helpful. Maybe it's just recoupment here that I have trouble understanding. Recoupment seems to have little value here except as a way of punishing PFM. Recoupment means that PFM now has to pay Iowa for the constitutional violation they committed together. I don't think that makes much sense. Maybe PFM is as culpable as Iowa -- but is there really an argument that PFM is more culpable, that the Establishment Clause applies more to PFM than it does to Iowa? By virtue of the taxpayer theory, Iowa suddenly gets to flip sides in the litigation. It doesn't have to pay the plaintiffs. It instead gets to become the plaintiffs and take PFM's money back on their alleged behalf. Now I understand the theory -- that the injury was taxpayer dollars going to PFM, that the remedy, if there is to be one, means the money has to go back, and that Iowa this time could spend it on something constitutional. But it seems like the remedy of recoupment means we've moved full circle from (1) Iowa being responsible, to (2) Iowa and PFM being jointly responsible, to (3) PFM being chiefly (or even solely) responsible. Maybe I'm missing something, but I find this problematic. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Suing God (honest, it's a lawsuit that has really been filed)
Considering that so many churches and similar institutions consider themselves duly and uniquely appointed agents, it shouldn't really be too hard. In fact, this idea might catch on, and we might find the IRS claiming that all those churches et al. are permanent establishments whose income, though not taxable to them because *they* filed for exemptions, are effectively connected with their principal's trade or business and taxable directly to him/her/it. On 9/19/07, James Manning [EMAIL PROTECTED] wrote: I just keep thinking that if this suit were to go through, what a long difficult day that is going to be on some process server. James Manning Murray State undergrad -- Moody friends. Drama queens. Your life? Nope! - their life, your story. Play Sims Stories at Yahoo! Games. http://us.rd.yahoo.com/evt=48224/*http://sims.yahoo.com/ ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Joel wanted to show you an article
The NYT version I got following Steve's link had the entire quote, so if it was omitted from the Tuscaloosa paper it might have been an editing error. Vance On 9/10/07, Douglas Laycock [EMAIL PROTECTED] wrote: I am quoted deep in the story. For what it's worth, the quote makes more sense if you know that I said They're picking out what is acceptable religious teaching for prisoners, -- not what is accessible religious teaching. I don't blame the reporter. It's probably not a good idea to talk to a reporter by cell phone, although this time I didn't have a choice. Quoting Steven Jamar [EMAIL PROTECTED]: here's the NYT version of the story http://www.nytimes.com/2007/09/10/us/10prison.html?ex=1190088000en=fae653b30e85639eei=5070emc=eta1http://horde/services/go.php?url=http%3A%2F%2Fwww.nytimes.com%2F2007%2F09%2F10%2Fus%2F10prison.html%3Fex%3D1190088000%26en%3Dfae653b30e85639e%26ei%3D5070%26emc%3Deta1 or http://tinyurl.com/38n8hjhttp://horde/services/go.php?url=http%3A%2F%2Ftinyurl.com%2F38n8hj On 9/10/07, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote: Just put Tuscaloosanews.com in front of the rest. Frances Paterson Frances Paterson, J.D., Ed.D. Professor Department of Curriculum, Leadership, and Technology College of Education Valdosta State University Valdosta, GA 31698-0090 See what's new at AOL.com and Make AOL Your Homepage. ___ 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/religionlawhttp://horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw 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 Jamar Howard University School of Law ___ 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/religionlawhttp://horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Mormon Student, Justice, ACLU Join Up
While there is some persuasive force in this argument as a matter of first analysis, I can see several objections. First, doesn't it conflict with the law as it actually is? When there are secular exemptions, under the Smith/Sherbert concatenation the denial of a religious exemption gets strict scrutiny, which the secular exemptions effectively prevent it from passing. Second, doesn't the argument prove too much, in the sense that the other activities the state exempts from the continuous-student-status requirement (military service and community service) are also voluntary? And third, wouldn't it involve courts too deeply in matters theological to have to determine whether a particular practice was compelled by the student's religion or was only peripheral (which also raises the question of whether free exercise is effectively only available for religious bodies whose doctrines and requirements can be reduced to something like a legal code, rather than to individuals who may interpret their religious ideas)? -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] On 9/5/07, Paul Finkelman [EMAIL PROTECTED] wrote: The choice issue, at least for me, is not about being a neo-atheist, since I am not one. The issues here is seems is that the student does have choice to not do the mission. As I understand it not all Mormons do; and no one has answered the question as to the timing of the mission. MUST he do it at a certain age. If not, then there is a great deal of choice. He can choose to go to college and then do the mission. He can choose to do the mission and then go to college. I assume, for example, that Mormons attend West Point or the other service academies and that they do not leave school for a year to do a mission. Try this, suppose instead of being in regular university the student was at a service academy and therefore a member of the military -- which is a choice. And then asks for a leave to go on a mission. Suppose he is not a student but enlists at 17 or 18, serves until 19 and as he is about to be shipped to Iraq says I need a leave for a year. I don't think he gets it and I don't see how that would be a necessary accommodation of religious practice. I have never suggested people are irrational in their belief and I find David's suggestion that I have to be way over the top. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/05/07 9:41 AM It does seem to me that one of the most compelling arguments in favor of religious freedom is the recognition that religious belief is not simply a matter of choice--like deciding whether or not to join a fraternity or sorority. As Calvin and Paul suggested, it is a product of grace. That does not mean that people of faith are irrational with respect to the theology that grows out of that belief, it does mean that faith touches something much deeper and more profound. That said, I think the evangelical fervor displayed by the neo-atheists (as E.J. Dionne so aptly labels them) demonstrates that this religious connection can attach to a materialist ideology as well as a transcendentalist one. The mistake Harris and company make is in thinking that their choices are purely rational and that everyone should believe exactly as they do. (Sounds like some religious fundamentalists to me.) In this sense, I think the issue does touch significantly on religion and law. David From: [EMAIL PROTECTED]: Wed, 5 Sep 2007 08:58:10 -0400Subject: Re: Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu I'd welcome an on-list discussion of this matter, with Eugene's permission of course.Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelawareRatio Juris, Contributor: http://ratiojuris.blogspot.com/Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ Get a sneak peek of the all-new AOL.com. _ Discover the new Windows Vista http://search.msn.com/results.aspx?q=windows+vistamkt=en-USform=QBRE ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo
Re: Mormon Student, Justice, ACLU Join Up
More to the point, I would think, is that neither military nor community service is required, either (well, maybe community service when part of a criminal sentence). Since there are clearly secular exemptions to the rule, it can't be said to be a neutral rule of general application. Smith therefore doesn't apply, and Sherbert does, right? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] On 8/30/07, Ed Darrell [EMAIL PROTECTED] wrote: No, the mission is not required, in the same sense that, if elected, a cardinal may turn down the papacy, or Mother Teresa can return from the dead and refuse canonization -- well, maybe not that serious. Only someone who is not a member of the church and doesn't have to face years of questions in elders' quorums, queries from potential spouses' parents, and the general disapproval of everyone a person knows, would think it's a voluntary sort of thing that is optional, and no big deal. People are encouraged to breathe, but it's not required . . . Ed Darrell Dallas *Brad Pardee [EMAIL PROTECTED]* wrote: I found this line particularly interesting: The state's request to dismiss Haws' lawsuit notes that Mormon missions are encouraged, not required. Haws was 'under no compulsion to choose between the tenets of his religion and continued receipt of the PROMISE scholarship,' the motion reads. As I've read the posts here over time, it has seemed like the question is often finding the balance between the free exercise clause and the establishment clause. To my layman's eye, though, it would seem, though, that in this case, the state is potentially managing to run afoul of both clauses. It sounds like the student is making a free exercise claim when he talks about being forced to choose between his religion and his scholarship. However, if the state is making pronouncements that distinguish between what a religion encourages and what a religion requires, could a case be made that this qualifies as excessive entanglement? Brad Pardee - Original Message - From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: Thursday, August 30, 2007 1:28 AM Subject: Mormon Student, Justice, ACLU Join Up Any thoughts on this? http://www.foxnews.com/wires/2007Aug25/0,4670,ReligionLawsuitScholarship,00.html The Justice Department is joining the American Civil Liberties Union in backing a student who lost his state-funded merit-based scholarship because he left college to serve a two-year church mission. The department's Civil Rights Division filed a friend-of-the-court brief Friday in U.S. District Court in Charleston on behalf of David Haws, a student at West Virginia University. Haws, a Mormon, is suing a state scholarship board, alleging it violated his First Amendment right to freely exercise his religion. His attorney argues that by denying Haws' request for a leave of absence, the board forced him to choose between his religion and his scholarship through a state program, known as PROMISE. The Justice Department noted that the PROMISE Board grants deferments for military and community service, and that by denying a deferral for religious purposes, the board was placing a lower value on religious deferments ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo
Re: Free speech, teaching of jihad, parental rights, and children's best interests
I have to take issue with one statement in your op-ed, Eugene: you say, ...children are immature and less able to resist their parents' ideological excesses. You're probably not far enough along in your parenting, but trust me, children have remarkable defenses (and offenses) of their own. More seriously, I'm troubled also by the lack of constitutional restraint exercised by family law judges in these cases. Best interests of the child as a legal standard probably would, on close analysis, fail all the vagueness tests. Where exposure to unconventional views are not producing *observable* psychological damage to the children, the state shouldn't bother --or be allowed--to impose a more conventional lifestyle on divorced families than it does (which is to say, barely at all) on intact ones. In fact, the existence of a disagreement between the parents on philosophical, religious and similar value points (what about political affiliation?) should do more to insulate children from undue influence than in, say, two-jihadist households. Vance On 2/7/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I ran across a fascinating -- and unpublished and computer-inaccessible -- new parent-child speech decision; I've posted the text at http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166 6, and written it up in an L.A. Times op-ed available at http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c oll=la-opinion-rightrail, but here are some excerpts from the trial court decision (which was generally upheld on appeal, except that the visitation was changed to supervised visitation, starting after the father finishes his federal probation): The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered extreme or non-conventional, especially in today's, post 9-11 world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone. It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner's most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties' divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct. During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.] ... The respondent contends that due to the petitioner's violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied [T]he issue before the Court is what visitation would be in the children's best interest [T]he children shall have visitation with their father The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. Any thoughts on this? 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Free speech, teaching of jihad, parental rights, and children's best interests
I agree that the legal scope of parental authority is far greater than its practical scope (rather like the obligations of contract). Your original point, I take it, was that judicial usurpation of that authority under color of a divorce decree should for those very reasons be subject to greater scrutiny and a more bounded standard than best interests of the child has so far been held to be. I agree with that as well, in principle. Since divorce decrees are generally reviewed on appeal based only on an abuse of discretion (somebody more familiar with family law correct me if I'm wrong), how does the Constitution intrude itself into the exercise of a court's discretion? Due process in these situations presumably would only require satisfying a rational basis test (unlike the cases you cite involving racial matters). It would take a very bold appellate court (give Massachusetts a try) to rule that imposing a bygone generation's view of domestic tranquility was not rationally related to the best interests of the child, as opposed to being the *better* view. I even suspect that a state with a RFRA would allow best interest of the child determinations to trump a parent's religious freedom claims (I seem to recall that some already have done). Bottom line: if you want to raise a jihadist, be very nice to your spouse. Vance On 2/8/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I tried to note this in my NYU L. Rev. article, in fact with a quote (taken somewhat out of context) from Edmund Burke: Of course, we shouldn't overstate the practical scope of parental power, especially over older children. 'Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can.' But this legally enforced parental power does exist. It makes the parent-child relationship different from the relationship that speakers usually have with listeners. And it makes legal intervention to prevent speech that harms the listeners more appealing. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven Sent: Thursday, February 08, 2007 4:27 AM To: Law Religion issues for Law Academics Subject: Re: Free speech, teaching of jihad, parental rights,and children's best interests I have to take issue with one statement in your op-ed, Eugene: you say, ...children are immature and less able to resist their parents' ideological excesses. You're probably not far enough along in your parenting, but trust me, children have remarkable defenses (and offenses) of their own. More seriously, I'm troubled also by the lack of constitutional restraint exercised by family law judges in these cases. Best interests of the child as a legal standard probably would, on close analysis, fail all the vagueness tests. Where exposure to unconventional views are not producing *observable* psychological damage to the children, the state shouldn't bother --or be allowed--to impose a more conventional lifestyle on divorced families than it does (which is to say, barely at all) on intact ones. In fact, the existence of a disagreement between the parents on philosophical, religious and similar value points (what about political affiliation?) should do more to insulate children from undue influence than in, say, two-jihadist households. Vance On 2/7/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I ran across a fascinating -- and unpublished and computer-inaccessible -- new parent-child speech decision; I've posted the text at http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166 6, and written it up in an L.A. Times op-ed available at http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c oll=la-opinion-rightrail, but here are some excerpts from the trial court decision (which was generally upheld on appeal, except that the visitation was changed to supervised visitation, starting after the father finishes his federal probation): The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered extreme or non-conventional, especially in today's, post 9-11 world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone. It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner
Re: RLUIPA and light pollution?
I would suppose that preventing a service-affecting impediment to the Mt. Palomar observatory could qualify as a compelling interest, as relocating an astronomical observatory is hardly a trivial matter. I also assume it matters whether the light-pollution ordinance qualify as a land-use restriction for purposes of applying RLUIPA, no? As a pollution-control regulation it might, although it affects the use of land, not fall within RULIPA's ambit. This thread puts me in mind of a recent to-do in Boston over a homeowner's Christmas lighting display, which is so extensive that it has driven his neighbors bats (and he's had it up since October). I've driven by the site, and it is formidable indeed--it's like the floodlights at Fenway Park. I don't know whether Boston has a light-pollution regulation (surely Boston regulates everything), but could a non-church landowner claim the benefit of RLUIPA were the city, or his neighbors, to try, shall we say, to douse his lights? On 12/11/06, Volokh, Eugene [EMAIL PROTECTED] wrote: I sympathize with light pollution ordinances, and I'm not sure that they impose a substantial burden here. But if there's a *compelling* government interest in preventing light pollution, then we really are in strict in theory, feeble in fact territory. -- *From:* [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] *On Behalf Of [EMAIL PROTECTED] *Sent:* Monday, December 11, 2006 8:42 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: RLUIPA and light pollution? RLUIPA is not blanket protection from the operation of the law. I would think that the federal laws at issue here would satisfy strict scrutiny. I also have some questions regarding whether the intensity of the light bulb can be argued as a substantial burden on religious exercise. RLUIPA defines religious exercise to include any potential belief, not just central beliefs, but the light intensity argument seems to me to be a very tough one for the religious entities to win. Moreover, where is the burden on reducing the wattage? RLUIPA is unlikely to assist the religious entity here. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University -Original Message- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Sun, 10 Dec 2006 12:34 AM Subject: RLUIPA and light pollution? Here's an interesting situation I'd like to get some opinions about. http://www.thedesertsun.com/apps/pbcs.dll/article?AID=/20061209/NEWS01/612090325 A church in Palm Desert, CA, has a giant lit cross that apparently violates the local light pollution ordinances (it's about 6 times brighter than the zoning laws allow). According to Phil Plait ( http://www.badastronomy.com/bablog/2006/12/09/science-versus-religion/), an astronomer, it's causing problems for the Mt. Palomar space telescope, and apparently Federal law requires that all such lights within 45 miles of the observatory be shut off at night. A law professor from USC says that the RLUIPA prevents any enforcement of those statutes, but that strikes me as unlikely. Any thoughts? Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.eduReligionlaw%40lists.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. -- *Check out the new AOL*http://pr.atwola.com/promoclk/1615326657x4311227241x4298082137/aol?redir=http%3A%2F%2Fwww%2Eaol%2Ecom%2Fnewaol. Most comprehensive set of free safety and security tools, free access to millions of high-quality videos from across the web, free AOL Mail and more. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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
Re: RE: RLUIPA and light pollution?
The last paragraph of Steve's post touches on the second point I raised in my original one, which is that a light pollution ordinance isn't a land use restriction within the meaning of RLUIPA. One could violate a light pollution rule as plausibly with your automobile headlights as with a fixed lighting display. By the same token, although pollution control laws certainly do affect how people use land, and are thus literally land use regulations, the history of RLUIPA suggests strongly to me that that's not what Congress had in mind, unless Congress assumed that pollution control was always going to be a compelling interest that trumped a religiously-motivated polluter. I'm also not sure that the Boston homeowner whose Christmas display angers his neighbors would concede, as did the litigants in Osborn v. Power did, that his religion didn't compel him to put up such a display (and centrality isn't, is it, necessary to prevail in a RLUIPA case). For information, the link I got to the story is here: http://www.boston.com/news/local/massachusetts/articles/2006/11/20/hey_whats_the_bright_idea/ Since it's several weeks old, it might not work. On 12/11/06, Steven Jamar [EMAIL PROTECTED] wrote: Eugene, You just are not thinking with sufficient circularity. :) There is no substantial burden because it is merely a time place and manner restriction. A time place and manner restriction is not by its terms a substantical burden. I mean this only partly in jest. Just as we have the secondary effects doctrine in free speech/pornography zoning cases, so we have would find RLUIPA does not reach all conduct that it could be interpreted to reach. The language could be construed Eugene's way, and then we play games about what is or is not a substantial burden. And I submit that deciding that issue will bring into play all sorts of concerns and weighing and so on that will result in allowing states to regulate light pollution. All that said, I don't think there is a substantial burden here. I think that mere neighbor annoyance is not a compelling state interest -- I agree with that. But at some point the mere annoyance can become too intrusive and even a common law nuisance the abatement of which would be adequately compelling. Also, if we look at the aims of the law, the context in which it was passed, and the variety of limitations built around it, then I come to the conclusion that this is not the sort of activity it was meant to reach. I would conclude that it is intended to reach things that are more in the nature of prohibitions than mere limitations. Steve -- Prof. Steven Jamar Howard University School of Law ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Illinois Appellate Court holds that the state RFRA doesn't apply to judicial decisions, Marsaw v. Richards, 2006 WL 2715266 (Sept. 22)
The court's discussion of this subject was quite cursory and unsatisfactory. Basically, it said, of the argument that a court decision is itself government action, it's never been raised before, so we won't consider it. It's not exactly an ancient statute, so courts should be prepared to deal with cases of first impression. In the context of this being the case's third visit to the Appellate Court, one might understand a lack of patience, but the court's analysis was deeply flawed. Even if a court decision, by itself, isn't government action within the meaning of RFRA (and I don't concede that point), why shouldn't the claim be read as one under the Illinois nonprofit corporation law, which the moving party was asking not be construed or enforced in a way that would impinge on religious exercise? On 9/27/06, Volokh, Eugene [EMAIL PROTECTED] wrote: Illinois Appellate Court holds that the state RFRA doesn't apply to judicial decisions, Marsaw v. Richards, 2006 WL 2715266 (Sept. 22). 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: How one school district found religion
A very interesting article that raises (one might say begs) the question of the extent to which it is constitutionally permissible for the state to encourage adherents of intolerant religions to be tolerant. The last paragraph of the article summarizes the school system's position nicely: Limiting deeply held beliefs to the private sphere breeds suspicion and tension. True religious liberty prevails not only when people feel comfortable expressing their beliefs, but also when they learn to discuss religious differences with civility and respect.Some on this list might complain that the whole concept of encouraging cross-religious dialogue under state sponsorship smacks of imperial Protestant theology. To the extent the exercise is about more than etiquette there might be something to this, though it might not be a persuasive objection. What should an adherent of Wahabism think about such a program, if the adherent buys into the theology represented in the school textbooks quoted here the other day? There certainly is an important state interest in promoting personal security. Is adopting a platform of enforced religious tolerance the least restrictive means of achieving that objective? From the article, it seems clear that participants in the program grew to see the similarities between religious belief systems. What if this outlook results in higher levels of intermarriage between religious adherents (prohibited in some religions) and a consequent decrease in adherents of some religions or a decrease in religious institutional participation? Bottom line, can the state adopt a policy that religious adherents have to get with the program of religious liberty, or are we now required on the one hand to literalize the First Amendment to prevent the adoption of any policy on the interaction between belief and action in secular society (to the extent anyone acknowledges the existence of such a thing), or on the other to deconstruct the First Amendment as an obsolete imposition of one religious point of view? Or are we allowed, with or without acknowledging that the First Amendment reflects a religious viewpoint, to say that its benefits for the continuity of the polity outweigh any burden placed on intolerant religionists? VanceOn 5/23/06, Joel Sogol [EMAIL PROTECTED] wrote: http://news.yahoo.com/s/usatoday/20060522/cm_usatoday/howoneschooldistrictfoundreligion Americans have never been in greater need of understanding religious differences and cultivating respect for religious freedom. The events of 9/11 transformed America's relationship with Muslims at home and abroad, a surge in immigration from Asia and Africa has increased the nation's religious diversity, and cultural conflicts between secularists and religious conservatives occur like clockwork. So you might think the last thing school districts would want is to bring religion into the classroom. Better to play it safe, and avoid lawsuits and angry parents by limiting any mention of faith to the private sphere. But school officials in Modesto, in Northern California, decided not to play it safe. In 2000, the religiously diverse community took a risk and, in an almost unheard-of undertaking for a public school district, offered a required course on world religions and religious liberty for ninth-graders. Joel L. Sogol Attorney at Law 811 21st Avenue Tuscaloosa, Alabama 35401 ph: (205) 345-0966 fx: (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Missouri declares Christianity its official religion.
Don't know about Dallas, but they certainly do in Boston, especially around the time of the gay pride parade. Vance On 3/4/06, Ed Darrell [EMAIL PROTECTED] wrote: Alas, lack of understanding won't increase if such changes occur. Would it not be better to achieve a workable level of understanding rather than vitiate the laws that protect the freedoms we have? Is there no one who will step up to the podium and tell what the rights really are? And, by the way -- do you know of any city that has put up a gay pride banner? How many times has this happened? Ed Darrell Dallas Rick Duncan [EMAIL PROTECTED] wrote: I read the text of the Mo resolution, and what I read there between the lines is not so much the desire to make Christianity the national religion, but rather frustration caused by judicial decisions that appear to have cleansed religion ! from the public culture. For people who are not as sophisticated as constitutional law scholars, it is difficult to understand why a city can put up gay pride banners in public parks but not nativity scenes. Why public schools can celebrate Earth Day, but not Christmas. Why Christian Charley has no Free Ex right merely to opt out of evolution in the curriculum, but Secular Sammy has a right--not only to opt out for himself--but to stop his willing classmates from even hearing about challenges to evolution such as ID. Interestingly, the frustration may be about to end. With recent changes on the Court (and! perhaps more to come this summer), I suspect that the Court will no longer be obsessed with eradicating even harmless, passive displays of religion such as nativity scenes, Ten Commandment displays, etc. Perhaps the purpose prong of Lemon may soon ! be gone, making it easier for school boards to adopt curriculum such as ID critiques of evolution and making it more difficult for dissenters to throw out harmless religious displays such as those eradicated in McCreary. Frankly, I don't think folks want Christianity to be the official religion of America. I think they merely wish it to have a seat at the table, to allow Christmas as much a place in the public culture as Earth Day and National Coming Out Day. I think what is needed is a little less judicial government under the EC, and a little more democratic self-government at the state and local level. Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is ! broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The Flushing Remonstrance
As someone who grew up in Flushing, I want to thank Perry for bringing this statement to our attention. I recognized the image of the Bowne house on the site, which I used to pass regularly in my youth. Local history was not forgotten in the public school curriculum then, either. The fact that all the signatories had English, rather than Dutch, names suggests some other factors that may have been at play over Stuyvesant's ordinance, but the words resound nevertheless. Vance On 3/3/06, Perry Dane [EMAIL PROTECTED] wrote: Hi all, I forgot to include a link to the text of said Flushing Remonstrance: http://www.nyym.org/flushing/remons.html Perry ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: FW from Marie Failinger: Issue for religion-law list
I believe the bill in question is the one I quote excerpts from below, which would amend the state zoning enabling law. The ostensible purpose of the bill is to strengthen local zoning boards who adopt comprehensive community futures planning, but the amendments to the law quoted below are unconditional. The section that would be repealed is the one that has long been employed to defeat zoning prohibitions on churches (and schools) in residential neighborhoods, and in practice to avoid even the height and setback regulations specifically called out as permitted, as in the case of the huge Mormon temple in a residential area of the (toney) suburb of Belmont (where Gov. Romney lives). Thus, to suggest it's intended to spank the Catholic church might be underinclusive. Moreover, since the original text also spoke of religious purposes it's hard to see how the new text constricts the standard further, although certain permitted restrictions not previously mentioned are now specifically called out. I don't know whether the revisions would bring Massachusetts law closer to that of other states, but it seems evident that to the extent RLUIPA would prohibit an exercise of a zoning board's authority, for example, to demand more parking than the church could accommodate on its property, there might be problems. Does the enactment of this statute by itself bootstrap a compelling interest on the part of the state, or is that presumed in the case of zoning laws under RLUIPA analysis? The material part of the text is as follows:SECTION 5. Said section 3 of said chapter 40A, as so appearing, is hereby further amended by striking out, in lines 26-34 inclusive, the words nor shall any such ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic, or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. .SECTION 6. Said section 3 of said chapter 40A, as so appearing, is hereby further amended by striking out the third paragraph and inserting in place thereof the following paragraph: -Zoning ordinances or by-laws shall not prohibit the use of land or structures thereon for: a) educational purposes on land owned or leased by the Commonwealth or any of its agencies, subdivisions or bodies politic or by a nonprofit educational corporation; b) religious purposes by a religious sect or denomination; c) the purposes of operating a child care facility or d) the purposes of operating a community residential program. As used in this section the following words shall have the following meanings: a) educational purposes means public and nonprofit private primary, secondary and higher educational purposes; b) child care facility means a day care center or school age child care program, as those terms are defined in section 9 of chapter twenty-eight A; c) community residential program means a residential facility licensed by the Commonwealth to provide care or shelter or supervision or education to a maximum of eight (8) individuals with a mental or physical disability or to victims of crime, of physical or mental abuse, or of neglect in a small-scale residential setting with on-site or off-site supervision. The land or structures used for such purposes may, however, be subject to reasonable regulations regarding the bulk and height of structures, yard sizes, frontage, lot area, building coverage requirements, setbacks, floor area ratio, parking, access and egress, lighting, drainage, landscaping, buffering and open space, and similar matters. Compliance with such regulations may be determined as provided by ordinance or by-law in each city or town, including through site plan review under which reasonable conditions, safeguards, and limitations to mitigate the impact of a specific use of land or structures on the neighborhood may be imposed pursuant to section seven A of this chapter. In addition, the application of such regulations to particular land or structures used for such purposes may be waived in whole or in part by special permit, and reasonable conditions may be imposed as part of the special permit. The waiver may be granted if the special permit granting authority finds, based upon the evidence presented by the person seeking the waiver, that the waiver will not result in substantially more detriment to the neighborhood than the use of the particular land or structures for such purposes without the waiver. On 3/1/06, Volokh, Eugene [EMAIL PROTECTED] wrote: -Original Message-From: Marie A. Failinger [mailto: [EMAIL PROTECTED]]Sent: Wednesday, March 01, 2006 11:41 AM. . .Ethan Burger,
Re: Pink Triangles and Religious Liberty
Since the discussion is non-constitutional at this point, isn't this the same policy issue presented when a Catholic school hires non-Catholic teachers, which they often do, and yet requires them to operate in classrooms with crucifixes in them? If the Catholic school can reiterate its institutional message by symbolic representation, regardless of the religious beliefs of the individual teachers, why can't a public school do the same (with respect to a secular message)? A religious objection to a religious message and a religious objection to a secular message seem to me to be on an equal footing. VanceOn 1/26/06, Rick Duncan [EMAIL PROTECTED] wrote: I also think there is anon-constitutional religious liberty policy issue when teachers are required to teach under a banner that violates their sincerely held religious beliefs? -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Racist Man Sentenced To Attend Black Church
All prosy dull society sinnersWho chatter and bleat and boreAre sent to hear sermonsFrom mystical GermansWho preach from ten till four.The Constitution, though, does seem to be an insuperable barrier to the exercise of judicial imagination. Pity. On 1/17/06, Paul Finkelman [EMAIL PROTECTED] wrote: Let the punishment fit the crime?Volokh, Eugene wrote: Constitutional?(I assume the sentence was for a racially motivated threat or perhaps racially motivated fighting words, and not literally for [in part] using racial slurs.) Eugene http://www.local6.com/news/6142521/detail.html A judge has sentenced a suburban Cincinnati man to attend services for six weeks at a black church for threatening to punch a black cab driver and using racial slurs. Judge William Mallory Jr. . . . let Haines choose between attending the black church for six Sundays or spending 30 days in jail. Haines said he'd try the church, although he doesn't usually worship on Sunday. Mallory offered Haines the choice Friday after Haines was convicted of disorderly conduct. He was arrested in November after threatening cab driver David Wilson and Wilson's wife. Mallory said he was concerned about maintaining the separation between church and state, so the judge asked Haines whether the option would offend him. Haines said he would like to try it. The cab driver said he wished Haines had been jailed instead because, in his words, Church don't change everybody. ___ 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. --Paul FinkelmanChapman Distinguished ProfessorUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, Oklahoma74104-2499918-631-3706 (office)918-631-2194 (fax) [EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Home Schooling and Real Covenants
Works for me. ;-)On 1/4/06, Will Linden [EMAIL PROTECTED] wrote: Apropos of nothing in particular, this keeps showing up in my mail summaryas Home Schooling and Real Coven(s).___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/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. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Property Law and Religious Liberty/Constituional Law
Okay, I'll bite.Isn't the problem with Shelley (and the religion case it cited, Cantwell v. Connecticut) that even if you prevail and show that state court enforcement of the covenant is state action for 14th amendment purposes, you still have all the problems of bringing religious discrimination cases under the 14th Amendment--specifically, that per Smith the state *can* abridge free exercise if done under guise of a generally applicable law? At that point, all the state (or the private litigant under the covenant) would have to show is that it's rationally related to a legitimate regulatory objective, and cite frat parties and the like. Maybe, of course, there's no rational basis for such a regulation that restricts who, rather than how many, people can reside in the same home, but that's an issue apart from any connection to religion (at least under the facts stated). What RLUIPA gets you is strict scrutiny when the land use regulation inhibits religious exercise; but in Mrs. Moore's case, that merely amounts to doing something for religious reasons that other people wouldn't be allowed to do for secular reasons. While building a church and having religious services is pretty much a unique occupation of religious organizations, housing friends and distant relatives isn't. While I wouldn't necessarily be embarrassed to make the argument that RLUIPA might apply to Mrs. Moore, I woudn't necessarily expect to win the case. Of course, there's always the Ninth Amendment and Mrs. Moore's right to privacy, which is now a 14th amendment due process issue for the states, if anyone here thinks the courts retain a taste for emanations of penumbras (or was that penumbras of emanations?). VanceOn 1/4/06, Rick Duncan [EMAIL PROTECTED] wrote: Here is a funreligious liberty/con law issue from my Property course syllabus. We read Moore v. City of East Cleveland, theSDP case in which the Court struck down a restrictive zoning ordinance that defined single family residential use in a way which prohibited a grandmother from living with her two grandsons (from separate branches of her family tree). You all know the case. Well, suppose that instead of a restrictive zoning ordinance (which, of course, would be unconstitutional under Moore), Mrs. Moore was sued by a HOA to enforce a running covenant restricting her use of her own home to single family residential purposes only (with single family defined very restrictively as in Moore). Suppose futher that she took her two grandsons into her home following the deaths of their respective parents, and that she sincerely believes that her religious faith requires her to raise her otherwise ! homeless grandchildren.Assume that, underthe state law of covenants running with the land,thestate courts would enforce thecovenant and orderMrs. Moore to evict one of her grandsons as an illegal occupant. Is there sufficient state action to trigger SDP under the 14th Amendment? Does Shelley apply to all cases involving restrictive covenants (includingsingle faimly restrictions as above and speech-restricting covenants such as those prohibiting large C-band satellite dishes and outside antennas). Does RLUIPA protect her right toobey her religious conscience against the substantial burden imposedupon her free exercise by the law of running covenants under RLUIPA's definition of land use regulations. I swear, the Property class could be taught in large part as a religious liberty/con law class! Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand MiracleI will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner Yahoo! Photos Ring in the New Year with Photo Calendars. Add photos, events, holidays, whatever. ___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. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Home Schooling and Real Covenants
Is it a reasonable distinction between contracts and covenants running with the land that the law has traditionally considered contracts for the sale/possession of real estate to be unique because each parcel of land is unique (so that, for example, you can get specific performance of a contract to deliver real estate, while you generally can't for movables without lots of special circumstances)? The public policy argument concerning classic covenants rests largely on hostility to *restraints* on alienation. A contract that can be freely assigned fulfills that policy, while a covenant that says you can't sell to so-and-so or for such-and-such flouts it. Zoning laws, drawing on state police power, circumvent that common-law public policy by creating a new one. VanceOn 1/4/06, Steven Jamar [EMAIL PROTECTED] wrote: On Jan 4, 2006, at 2:52 PM, Rick Duncan wrote:I agree with Michael that courts may be reluctant to adopt myview of the law of running covenants as a type of zoning regime(actually it is not mine, I have heard others make a similar argument as a better way to understand Shelley). But again, once you distinguish between the private covenants themselves and the body of law that permits enforcement against non-covenanting parties, it is difficult to reject the conclusion that the law of covenants is state action and is a kind of zoning scheme. Although judicial enforcement between the original covenanting parties of the promises they actually made to each othermay not be state action, legal enforcement against third parties looks very much like a regulatory program. And so back to contracts -- the body of law that permits parties to enforce their agreements. The body of law argument is just a very tough one to make.The enforcement against others -- well my mortgage is with a company I never heard of -- a 3d party -- through assignment. And is that not very much the same thing? A body of law that permits enforcement against me by someone I never met or entered into a contract with? I consented to the assignment. They consented to assume the mortgage.Rights between parties who did not contract with each other are enforceable because a body of law says we do not need strict privity. And we could, of course, go on to warranty, and third party beneficiaries, and so on.Again, I think Rick's argument is flawed and wrong -- but still plausible enough to be entertained. I just reject it. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ The best that education can give [is] the notion that responsibility and delight can coexist. Philip Pullman, crediting his secondary school teacher Enid Jones, in The New Yorker, p. 58 (Dec. 26, 2005 and Jan 2, 2006) ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Secularization of Christmas
I think Daniel Henninger had the right idea in his December 16 column in the Wall Street Journal (that bastion of religious sentiment). Christmas is really two separate holidays and should be so understood and publicly acknowledged. The celebration of the birth of Christ is a religious holiday observed by a minority of Americans, and observed in passing by others. The other holiday, the one with Santa Claus and evergreen trees and gift-giving (and gift-buying) and sleigh rides and chestnuts roasting on an open fire, that's an entirely secular/cultural holiday that almost anybody in America celebrates or can celebrate. It should have its own name: let's call it Yule. Its principal justification is the celebration of generosity and good fellowship, which I think most of us can get behind. The fact that Yule is at some historical remove related to or derivative of Christmas is about as relevant as that December 25 was the date of a pagan holiday or that humans and Zinjanthropus are biologically related. One of the reasons for the draconian Puritan laws in New England forbidding the celebration of Christmas was because, centuries ago, the Christmas holiday in England and elsewhere had become taken over by those celebrating Yule, getting drunk and rowdy. That Yule is fully secular, as much so as (more than, I think) Thanksgiving, is surely demonstrated by its being celebrated in Japan and China, where there are no Christians to speak of. Thus understood, public displays for Yule should be permitted on cultural grounds, but displays relating to Christmas (e.g., creches) should be subject at the very least to the rule of multifariousness: OK to acknowledge in context with other religious celebrations as part of the salad-bowl culture, but not by themselves. Today I passed by the holiday display in the City of Quincy, Massachusetts, which had a snowman, a Santa Claus, a nutcracker (!), and a menorah (!!). If there was anything denoting Kwanzaa, I didn't see it. I think the public, and its representatives, and its judges, are deeply confused, and a sorting out of holidays might help. Lots of Jewish, Hindu, Buddhist and probably Muslim Americans celebrate Yule, though they don't celebrate Christmas. For that matter, lots of nominal Christians only celebrate Yule. Nobody is obligated to celebrate Yule, Thanksgiving, Labor Day, Mother's Day or any other purely cultural holiday, but I see no promotion of religion in celebrating any of these. The war over Christmas is a war over a false definition. On 12/23/0 (!!)5, Paul Horwitz [EMAIL PROTECTED] wrote: Given the wealth of examples Belz cites, all of which occurred even beforethe end of the first week of December, might he not have begun askinghimself whether his operating thesis -- that the secularists are attempting to secularize the Christmas season -- is not itself due forreexamination, or at least for the application of a little more nuance andcare?If USA Today, the Hollywood studios, and NPR -- of all places -- are all, in one way or another, adding religious content to the publicsquare, or at least recognizing the centrality of Christmas in manyAmericans' lives, then rather than asking whether the secularists have failed to win their point, might he instead inquire into whether theattack on Christmas he apparently believes is failing even exists in thefirst place, beyond some isolated factoids? -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Dover Case Questions
As one who over the last few weeks has been made painfully--very painfully--aware of this design, it appears to point to the inescapable reality that there is no necessary correlation between intelligence and benevolence. VanceOn 12/21/05, Ed Darrell [EMAIL PROTECTED] wrote: No, urethra design is not beside the point at all. Is there an intelligent design explanation for that design? There is an evolutionary explanation (though not wholly satisfactory to many). How could such a thing have happened, according to intelligent design theory? The absence of any possible answer to that question points to the lack of science behind ID. That is the whole issue.Ed Darrell Dallas Perry Dane [EMAIL PROTECTED] wrote: Robert Lipkin wrote:I would argue that Steve's inference from the facts of disease, war,violence, inequity, inequality, stupidity of some design features (knees, elbows, eyes) to the conclusion that no omnipotent, omniscient, and morally perfect(lovin! g) deity exists is a perfectly legitimate inference. That is, the factsof evil and suffering are incompatible with the existence of such a deity,and this incompatibility must be explained away for anyone to recognize thesefacts but still insist on the deity's existence.To be fair to the intelligent design folks, their argument is not that the design of the universe IS intelligent, in the sense of optimal, or efficient, or morally good, or aesthetically pleasing, but rather that certain facts of the universe point to it having been designed BY AN intelligence.This does not, of course, answer Robert's theological argument, but it does suggest that the usual anti-intelligent-design jokes about the proximity of the prostate gland to the urethra are really beside the point.Perry*** Perry DaneProfessor of LawRutg! ers UniversitySchool of Law -- Camden217 North Fifth StreetCamden, NJ 08102[EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/Work: (856) 225-6004Fax: (856) 969-7924Home: (610) 896-5702 ***___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: UK case
I don't think that Rix LJ proposed that just because the employer has a need its actions are inherently reasonable. I think what he said was that because the employer had a need, the justification provisions of Article 9 were engaged and required an offer of reasonable accommodation (he also said, alternatively, that offering a reasonable accommodation meant that there was no material interference with religion to which Article 9 attaches, but this comes to the same thing). The lower court found that the employer had made reasonable attempts to accommodate based on offering Copsey a different job at the same location (albeit with less pay, which I don't think would pass muster in US litigation) or a similar job at another location (which would be reasonable or not in the US based probably on how far away it was from Copsey's home, etc.). Since I don't do any litigation of employment matters, I'm not familiar enough with our statutory scheme to say whether a lower court or administrative finding of reasonableness on a record such as appeared in Copsey would be treated as a fact finding (normally, reasonableness is considered a jury--therefore fact--matter), but if it were, the appeals court could only overrule it if it were manifestly contrary to the evidence. It was unclear to me from reading the Copsey opinions whether the same standard applies in England, but I can envision a court here coming out (that is, finding for the employer) just as it did in Copsey, for the same technical reason--that the lower court could have found, on the record, that the employer's accommodation offers were reasonable, and that, to say the least, nothing in the ECHR rulings demanded a higher standard. On 8/4/05, Paul Diamond [EMAIL PROTECTED] wrote: Thanks for this reply; I am interest by the US principle that 'no rule' is established in circumstances in which the conlcusion is similar. Mummery LJ held himself bound, unless over-ruled by the Hof Lords and Rix LJ says Article 9 is engaged but can't interfere (even though this means the lower courts asked the wrong questions). I am interested on what basis a US court would feel free to challenge lower court fact finding; as noted the lower courts did not ask the correct questions on religious rights or accommodation, but use a 'reasonableness' test and since the employer has a need he is reasonable! Paul Diamond - Original Message - From: Vance R. Koven To: Law Religion issues for Law Academics Sent: Wednesday, August 03, 2005 2:56 PM Subject: Re: UK case I find it difficult to figure out what principle to adduce from this case. If it were a panel opinion of a US Court of Appeals, there would be no rule established, since there were three opinions, all concurring in the result, but diverging significantly on the law. While Mummery and Rix, LJJ, would agree that the European Court of Human Rights has something to say that affects how UK employment law cases should be decided, only Lord Justice Mummery would give the ECHR case law binding effect to defeat the employee's claim. The case thus does not turn on a point of European law, but on the prosaic basis that an appellate court should not upset the trial court's finding of fact that the employer offered a reasonable accommodation to the employee's request not to work on Sundays. I'm not sure a US court would reach the same result on the facts of the case, but I think the principle of reasonable accommodation is consistent with our jurisprudence.It is noteworthy that all three justices agreed that the ECHR case law on the subject of taking days off for sabbath observance is, as they were too polite to put it, bizarre and in apparent contradiction to the intent of Article 9 of the Human Rights Convention. Lord Justice Rix probably put the best face on what the ECHR has ruled by focusing on the question of whether it was the employer or employee who sought a change in pre-existing terms of employment; but even he couldn't abide the Stedman case, and discreetly chose to write it off as an aberration (a judicial sleight-of-hand that I'm sure we're all familiar with). By contrast, Lord Justice Mummery was prepared to accept the proposition (paraphrasing Justice Stewart's dissent in Von's Groceries) that the only consistency in the law is that the employer always wins. On 8/2/05, Paul Diamond [EMAIL PROTECTED] wrote: Dear All, Not sure how this works; can you confirm if you have received this? I am Paul Diamond from the real Cambridge (UK, not MA)! This was a recent case in our Court of Appeal Copsey v WBB; you may find it interesting and ignore the Euro jargan; would be interest in your views.www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/932.html Paul
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
At 03:59 PM 7/7/2004, Steven Jamar wrote: Let us not forget that it was the church's actions that brought about the problems for which it is finally being held accountable. It should pay for its malfeasance. Not only will it pay in terms of court interference, it may find itself paying in ways it thought it was avoiding. Many of the abuse cases allege that the church fraudulently concealed priests' predatory bent when assigning them to new parishes. Since a claim sounding in fraud is not dischargeable under the Bankruptcy Code, the diocese might not get all the relief from a petition that it thinks it will get. Vance R. Koven Boston, Massachusetts USA [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Hansen case or, Clueless in Ann Arbor
While this case is easily accessed on Westlaw or Lexis, a free copy is available at: http://www.michbar.org/opinions/district/2003/120503/21290.pdf Judge Rosen was harsh indeed on the school and the advisers to this event, not without reason. There are a couple of points that intrigue me, one of which is this: in both the free speech and establishment clause discussions, the court focused (naturally enough) on the school's complete blacklisting of the plaintiff's viewpoint. In footnote 29, in the EC discussion, the court said that even if the plaintiff's viewpoint had been represented by one out of the six panelists, the exercise might have violated the Lemon test's second prong by favoring religion over irreligion. One might wonder if a panel as unbalanced as that could still be considered favoring one religion over another, without getting to the religious vs. irreligious issue. Putting aside for the moment the excessive entanglement issue involved in influencing the panel's composition, suppose that a school wants to reconstruct the program that the court invalidated in Hansen, and decides that it can do exactly what Ann Arbor did, but include on the panel a) the dumbest hayseed of a fundamentalist it could find, who would be a poor spokesperson for the traditionalist viewpoint, and b) one atheist who was pro-gay. Would that pass muster? My other question, which is off-topic in the sense that it arises under the free speech part of the opinion, is whether there was something inherently problematic in turning over the homosexuality and religion panel to the GSA to run. The court didn't make that much of this point, which surprised me a bit. Would nobody have cause to complain if a school turned over a panel on Youth in Politics to the Young Republicans? Even if the YRs were the only ones volunteering to run it? And if the distinction hinges on issue partisanship vs. party partisanship, is there any real distinction between government speech and government-sponsored speech? If the government itself could issue statements exhorting the public to accept propositions that many of them morally, religiously, or just plain pragmatically abhor, then why can't it recruit subalterns to do the same thing? Maybe the 10th Circuit was right in principle in the Columbine case (even though its case law analysis was weak). Vance R. Koven Boston, Massachusetts USA [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
