RE: Church excludes nursing woman

[Volokh, Eugene]

If I’m right that Hosanna-Tabor applies, wouldn’t the church 
just have a categorical right to exclude members or attendees, notwithstanding 
any antidiscrimination law, just as it has a categorical right to dismiss 
clergy notwithstanding any discrimination law – even without a showing that the 
church feels religiously compelled to violate the law?

To be sure, I don’t think that Hosanna-Tabor protects “just any 
activity [of] a church.”  But it does protect decisions whether to accept or 
reject clergy; might it equally protect decisions whether to accept or reject 
church members or attendees?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 10:13 AM
To: Law Religion & Law List
Subject: Re: Church excludes nursing woman

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


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

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

--Robert Frost




On Apr 27, 2017, at 12:54 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle – if it’s applicable – would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

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

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

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

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

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

- Mary Chase, "Harvey", 1950




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RE: Church excludes nursing woman

[Volokh, Eugene]

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle - if it's applicable - would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

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

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

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

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

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

- Mary Chase, "Harvey", 1950



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RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Volokh, Eugene]

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.
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RE: State-sanctioned church "police force"

[Volokh, Eugene]

   The statute seems unconstitutional to me, likely based on Kiryas 
Joel.  But the answer to the “why?” -- not that such a purpose would 
necessarily make it constitutional -- might well be for the same reason that 
many public school districts have their own police forces, though of course 
this one would be much smaller.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, April 12, 2017 8:19 AM
To: Law & Religion issues for Law Academics 
Subject: Re: State-sanctioned church "police force"

Why would a large, predominantly white suburban congregation near Birmingham 
need its own police force?

For a related religion clause case, see State v. Celmer, 
http://law.justia.com/cases/new-jersey/supreme-court/1979/80-n-j-405-0.html 
(invalidating on First A grounds "a statutory scheme which grants various 
municipal powers to the Ocean Grove Camp Meeting Association of The United 
Methodist Church.")

On Wed, Apr 12, 2017 at 11:04 AM, Paul Horwitz 
> wrote:

Here's a story from the AP. What do you (or, to use the proper and incredibly 
useful grammar of my adopted state, "y'all") think? Is it a quasi-Grendel's Den 
case or something of the sort? A direct Establishment Clause problem insofar as 
it involves granting governmental or quasi-governmental status to a church 
itself? A Kiryas Joel-type case insofar as it grants a governmental privilege 
or status that might or might not be granted to, say, a mosque or some other 
organization? (Not that I'm crazy about that aspect of the Kiryas Joel ruling.) 
Or, insofar as state law allows the state to empower various entities to have 
police forces, is it constitutional because respectful of equal access to 
governmental benefits or privileges?



Paul Horwitz

University of Alabama School of Law


MONTGOMERY, Ala. (AP) – The Alabama Senate has voted to allow a church to form 
its own police force.
Lawmakers on Tuesday voted 24-4 to allow Briarwood Presbyterian Church in 
Birmingham to establish a law enforcement department.
The church says it needs its own police officers to keep its school as well as 
its more than 4,000 person congregation safe.
Critics of the bill argue that a police department that reports to church 
officials could be used to cover up crimes.
The state has given a few private universities the authority to have a police 
force, but never a church or non-school entity.
Police experts have said such a police department would be unprecedented in the 
U.S.
A similar bill is also scheduled to be debated in the House on Tuesday.


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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
301-928-9178 (mobile, preferred)
202-994-7053 (office)
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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RE: Re-upping: Sterling: A helpful test case on RFRA burdens

[Volokh, Eugene]

Well, given that Gorsuch voted in favor of both Abdulhaseeb and 
the likewise presumably very poor Native American prisoner, Yellowbear v. 
Lampert, that is especially strong reason not to succumb to the temptation.

Indeed, whatever might be required merely for Article III standing, Gorsuch’s 
point in Hobby Lobby was that the government compelled plaintiffs to do 
something that they thought religiously forbidden; likewise, in Yellowbear, the 
government forbade something that plaintiff thought religiously required, as it 
did in Abdulhaseeb as to the required halal meat claim.  The Christians, Native 
American religious practitioner, and the Muslim were treated quite alike in 
this respect.

But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable 
foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all 
of the tray's contents inedible,” Gorsuch thought that the burden wasn’t 
substantial, because while “It's surely a burden to forgo an occasional meal,” 
the burden is less substantial.  And as to Ali, Gorsuch concluded that, though 
a “burden can count as substantial if it prohibits the prisoner taking actions 
motivated by sincerely held religious beliefs — or if it requires or places 
considerable pressure on the prisoner to do something his sincerely held 
religious beliefs forbid,” “Mr. Ali’s complaint fails to allege so much”:

Mr. Ali's complaint fails to allege so much. In places, the complaint suggests 
that the prison forbids Mr. Ali from using his religious name on mail — and 
that this is the gravamen of his complaint. Indeed, the title of the relevant 
claim in his complaint reads: "The SCF mail room's refusal to permit the 
plaintiff to send and receive mail under Jahad Ali violates his right to freely 
exercise his religious beliefs." R. at 35. Yet, Mr. Ali himself elsewhere 
concedes that the prison doesn't actually forbid the use of his religious name. 
Instead, he simply has to include his committed name alongside his religious 
name. So even if we were to agree with Mr. Ali that it might be a substantial 
burden on his religious exercise to forbid him to use his religious name on his 
mail, his own pleading makes plain that no such burden exists.

We suppose it's possible the prison's modest requirement that both names appear 
could itself be enough to qualify as a substantial burden under RLUIPA — if, 
say, a prisoner's sincerely held religious beliefs forbade any mention of a 
former name. But even affording the liberality due a pro se litigant, we don't 
see this allegation clearly made in claim 2 of Mr. Ali's complaint.

Seems like a reasonable analysis to me.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Tuesday, February 21, 2017 4:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But it's 
not a substantial burden, and RLUIPA proscribes only government actions that 
substantially burden religious exercise.”  Quite apart from its relevance, if 
any to Sterling,  I’d welcome thoughts on this, especially coming from Gorsuch, 
who said, in his Hobby Lobby concurrence that it was enough to give the Greens 
individually standing that “the company shares of which they are the beneficial 
owners would decline in value if the mandate's penalties for non-compliance 
were enforced.”

Let me also throw into the mix another relevant Gorsuch opinion, Ali v. 
Wingert, 569 Fed. Appx. 562 (2014) which also is a counter-example for Chip’s 
first proposition, in that involves a prisoner with a choice, also, as it 
happens a Muslim prisoner of whose claim of burden (this time religious burden, 
not secular) Gorsuch is dismissive. When pro se plaintiff Ali objects to being 
forced to include the name he was convicted 

Offer amicus help in speech or religion cases?

[Volokh, Eugene]

Dear colleagues:  I'm teaching my First Amendment Amicus Brief Clinic again 
this Spring, and I thought I'd pass along our letter seeking cases, in case any 
of you are litigating cases in which we can help, or would like to circulate 
the letter to some friends of colleagues who might want such help.  We do state 
and federal, trial, intermediate, and supreme, and both First Amendment cases - 
speech and religion -- and related statutory / common law cases (e.g., under 
RFRAs, state anti-SLAPP laws, 47 U.S.C. sec. 230, and so on).  We'll be ready 
to file starting late February.  Naturally, the sooner we can hear about the 
cases, the better, since our docket is limited.  Let me know, please, if you 
need any more details on this,

Eugene




Dear Counsel:

Are you litigating free speech cases (or religious freedom or church-state 
cases) in which you'd like a supporting amicus brief? If so, we can be of help 
(and pro bono help at that). We can both write a brief on behalf of an amicus 
you've identified, and file on behalf of amicus groups that we know well if you 
don't have an amicus already in mind.

This coming Spring, I'll be teaching (for the fourth time) a First Amendment 
Amicus Brief Clinic at the UCLA School of Law. Under my close supervision, 
students will draft and file amicus briefs on behalf of nonprofits and 
academics or groups of academics. We are open to filing such briefs
(1) in state courts or federal courts,
(2) in trial courts, intermediate appeals courts, or courts of last resort,
(3) at the merits stage or at the petition for rehearing, certiorari, or other 
discretionary review,
(4) in free speech or religious freedom cases, and
(5) in federal constitutional cases, state constitutional cases, and federal 
and state statutory and common-law cases (e.g., involving 47 U.S.C. § 230, 
copyright fair use, anti-SLAPP statutes, libel privileges, and the like).
We have filed briefs so far in state supreme, appellate, and trial courts in 15 
state court systems, in the U.S. Supreme Court, in nine federal circuit courts 
of appeals, and in federal district court.

Our clients have included the Reporters Committee for Freedom of the Press, the 
Electronic Frontier Foundation, the Student Press Law Center, the Foundation 
for Individual Rights in Education, the Becket Fund, the ACLU of Virginia, the 
Cato Institute, and more. We have supported clients represented by Davis Wright 
Tremaine, Jenner & Block, Morgan, Lewis & Bockius, Proskauer Rose, the 
Institute for Justice, the ACLU of Missouri, the ACLU of New Hampshire, the 
Alliance Defending Freedom, public defenders, and more.

So if you are litigating cases in which you think we can help, please let us 
know at amicuscli...@law.ucla.edu. Please 
also let your colleagues know about this, or let us know if there are other 
colleagues whom we should e-mail ourselves. Because of the school calendar, we 
would need cases in which briefs are due beginning late February 2017.

Earlier notice is better, since our docket tends to fill up quickly, and the 
students need time to work. Nonetheless, we sometimes have slots open up when 
cases are settled or delayed, so you can suggest cases as late as mid-March 
2015.

Please let me know if you have any questions about this.

Eugene Volokh
Gary T. Schwartz Professor of Law
UCLA School of Law
Director, Scott & Cyan Banister First Amendment Clinic
http://amicusclinic.com
(310) 206-3926


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RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   On that, I don’t quite agree.  The line I would draw for when 
such mandates become speech compulsions is the same as for content-neutral 
speech restrictions.  If the government can ban an activity or grant a monopoly 
in it, it can generally compel it (again, at least when it does so without 
regard to content) without a First Amendment problem.  Can the government set 
up a monopoly (or a quasi-monopoly “medallion” system) for butchers, bakers, 
florists, or limo drivers?  Yes, because that is not generally expressive 
conduct.  Likewise, compelling people to sell flowers (even in pretty 
arrangements) or cakes (at least without writing) isn’t speech compulsion.

   But can the government limit the number of speakers, singers, 
writers, painters, or photographers in town, even if they speak for a living?  
No, I think, because those activities are expressive.  And compelling people to 
engage in such expression is also a speech compulsion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, October 12, 2016 3:18 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Outside of this context (in the context of licensing) and before these kinds of 
issues arose, I argued that flower arranging, even by a grocery store employee, 
is speech for 1st Amendment purposes, because the florist is trying to create 
something beautiful and perhaps something that will convey a message of love or 
concern to whoever might get the flowers. I still hold that position.

Mark

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



On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Law & Religion 
issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
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RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman 
Cc: David Bernstein ; Law & Religion issues for Law Academics 
; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
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Hostility vs. feeling that certain people shouldn't marry each other

[Volokh, Eugene]

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don't think we ever ask whether a private citizen's 
discriminatory actions were "at bottom" based on "hostility" or rather based on 
"no objection to [people's identity]" but rather a "feel[ing]" that people of 
certain identities shouldn't do something.  And I think we basically don't do 
that even as to government actors' imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
"hostility" to women or even "hostility to [women] receiving equal treatment" 
(except in the tautological sense that all decisions to treat unequally are 
based on "hostility" to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just "feel[s] they shouldn't" work outside the home when 
they have small children.  But that doesn't matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of "hostility" -- is violating Title VII.

   Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn't want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can't see how courts can distinguish 
between them on the grounds of a perception that one's discriminatory conduct 
is motivated by "hostility" and the other's is motivated by a "feeling [that 
certain people] shouldn't get married to each other."

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 12:10 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, "Jews' objection to 
Jews marrying non-Jews stems from their viewing themselves as God's Chosen 
People, and other people as not God's Chosen People."  Someone else responds, 
as I've heard many religious Jews say, "No, it's not that being Chosen makes us 
better -- it's just that God has a particular relationship with us that 
involves specific obligations."  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says "Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment."  Someone else says, 
"No, we're not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women."  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Mitchell 
Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite gr

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, "Jews' objection to 
Jews marrying non-Jews stems from their viewing themselves as God's Chosen 
People, and other people as not God's Chosen People."  Someone else responds, 
as I've heard many religious Jews say, "No, it's not that being Chosen makes us 
better -- it's just that God has a particular relationship with us that 
involves specific obligations."  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says "Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment."  Someone else says, 
"No, we're not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women."  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
Cc: David Bernstein ; Mitchell Berman 
; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
> wrote:
For what it's worth, I'd like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don't have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture-interfaith marriage-that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that's not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman >; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics 
>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves 

RE: Religious accommodation schemes and discriminatory practices

[Volokh, Eugene]

   My question is what should happen if there is such a rule, not 
necessarily what should happen in such a case.

   And my sense is that such rules are likely pretty common, even 
if usually unstated.  There are two norms, as I understand them, in American 
business life generally.  First, a weak norm:  People are usually expected to 
shake hands in certain situations (though some sometimes substitute hugs, for 
people they are close with).  Second, a very strong norm:  If someone offers a 
hand to shake, you shake it.  Indeed, refusing to shake a hand is usually 
perceived as something of an insult.

   Now of course this norm doesn’t apply if the shaking is visibly 
impossible or very difficult, e.g., if the person has a broken arm, or is 
carrying things in that hand, and the like.  And the person might explain, “I’m 
sorry, but my religion forbids me from shaking hands with people of the 
opposite sex.”  That, though, is where the morale costs come in -- some people 
may perceive this as a slight.  (Query whether a man’s refusal to shake a 
woman’s offered hand would generally be perceived differently from a woman’s 
refusal to shake a man’s offered hand, and whether such a difference should 
matter.)  Should employers be able to insist on people adhering these norms, to 
prevent customers and coworkers from feeling slighted?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, October 11, 2016 8:53 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Religious accommodation schemes and discriminatory practices

Exemption requests?  Huh?  There's no indication that the employer here had a 
rule that you must shake the boss's hand, or that the employee sought --let 
alone was denied -- an exemption from such a (nonexistent) rule.

But if an employer were so stupid as to impose such a rule, then yes, I imagine 
the Title VII accommodation requirement, modest as it is, would compel a 
religious exemption.  "morale costs"?  seriously?

On Tue, Oct 11, 2016 at 8:36 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   I thought I’d pass along another post from Howard Friedman -- 
any thoughts on how religious accommodation schemes (whether RFRA-like or 
Title-VII-like) should deal with religiously motivated refusals to shake hands 
with members of the opposite sex?  Should there be a categorical rule rejecting 
such exemption requests, on the theory that discriminatory practices should 
never be accommodated?  (Should it matter whether the woman suggests, as an 
accommodation, that she not shake hands with anyone, male or female?)  Or 
should an employer have to accommodate such requests, especially if any morale 
cost stemming from the accommodation comes from coworkers’ emotional reactions 
to the religious practice?

   Eugene

Feed: Religion Clause
Posted on: Tuesday, October 11, 2016 7:00 AM
Author: Howard Friedman
Subject: Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a 
case manager by a behavioral healthcare company filed suit in an Oregon state 
court last week charging religious, racial, national origin and disability 
discrimination in her termination.  The complaint (full 
text<http://media.oregonlive.com/portland_impact/other/cascadia.discrimination.suit.pdf>)
 in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 
10/7/2016), claims, in part, that adverse employment action against her stemmed 
from her refusing for religious reasons to shake hands with men (including her 
boss), her wearing of a hijab, and her praying at work up to three times per 
day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed 
with them, finding inadequate evidence of discrimination. (Full 
text<http://media.oregonlive.com/portland_impact/other/Sharmin%20Rahman%2016-01271-DISMEMO-20160708134816-1.pdf>
 of OBLI order).  The 
Oregonian<http://www.oregonlive.com/portland/index.ssf/2016/10/islamic_woman_who_wouldnt_shak.html>
 reports on the lawsuit.


View 
article...<http://religionclause.blogspot.com/2016/10/muslim-caseworker-sues-charging.html>

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Religious accommodation schemes and discriminatory practices

[Volokh, Eugene]

   I thought I’d pass along another post from Howard Friedman -- 
any thoughts on how religious accommodation schemes (whether RFRA-like or 
Title-VII-like) should deal with religiously motivated refusals to shake hands 
with members of the opposite sex?  Should there be a categorical rule rejecting 
such exemption requests, on the theory that discriminatory practices should 
never be accommodated?  (Should it matter whether the woman suggests, as an 
accommodation, that she not shake hands with anyone, male or female?)  Or 
should an employer have to accommodate such requests, especially if any morale 
cost stemming from the accommodation comes from coworkers’ emotional reactions 
to the religious practice?

   Eugene

Feed: Religion Clause
Posted on: Tuesday, October 11, 2016 7:00 AM
Author: Howard Friedman
Subject: Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a 
case manager by a behavioral healthcare company filed suit in an Oregon state 
court last week charging religious, racial, national origin and disability 
discrimination in her termination.  The complaint (full 
text)
 in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 
10/7/2016), claims, in part, that adverse employment action against her stemmed 
from her refusing for religious reasons to shake hands with men (including her 
boss), her wearing of a hijab, and her praying at work up to three times per 
day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed 
with them, finding inadequate evidence of discrimination. (Full 
text
 of OBLI order).  The 
Oregonian
 reports on the lawsuit.


View 
article...
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Re: "California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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RE: "California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

   I think that's right -- but I'm curious about whether there 
would indeed be viable objections to a criminal prosecution, whether for 
violation of the injunction or for violation of the underlying statute.  (I 
assume that prosecution for violation of an injunction is more likely than 
prosecution for violation of the statute, but I agree that the legal arguments 
would be pretty similar.)

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Sunday, October 9, 2016 8:18 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "California Court Issues TRO Against Kaporos Practices"

Eugene,

I recall that CA does not follow the collateral bar rule. If that's true, then 
can't the Chabad pursue a two track strategy--try to have the injunction 
vacated tomorrow, and failing that, just ignore it and defend any ensuing 
criminal contempt (or implausible remedial civil contempt proceeding) by 
contesting the validity of the injunction?

Mike Masinter
masin...@nova.edu<mailto:masin...@nova.edu>

Sent from my iPhone

On Oct 9, 2016, at 2:44 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

>From 
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:

As previously reported, in late September an animal rights group filed suit 
against Chabad of Irvine in a California federal district court challenging 
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use 
of live chickens which are then slaughtered. (Complaint in United Poultry 
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint 
contended that defendants are in violation of California's unfair business 
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show 
cause why the case should not be dismissed for lack of standing. (Full text of 
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:

   UPC has standing under the Unfair Competition Law based on its 
diversion of organizational resources spent addressing Defendants' unlawful 
activity and attempting to convince authorities to take action.

The court was apparently convinced. It issued another order (full text 
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting 
plaintiff a temporary restraining order barring defendants from killing 
chickens or other animals in exchange for a fee or donation in violation of 
California Penal Code Sec. 597(a). It set a hearing on whether to order a 
preliminary injunction for October 13, the day after Yom Kippur-- effectively 
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this?  Note that sec. 597(a) generally bans 
killing animals, but excludes killings allowed under sec. 599c:

No part of this title shall be construed as interfering with any of the laws of 
this state known as the "game laws," or any laws for or against the destruction 
of certain birds, nor must this title be construed as interfering with the 
right to destroy any venomous reptile, or any animal known as dangerous to 
life, limb, or property, or to interfere with the right to kill all animals 
used for food, or with properly conducted scientific experiments or 
investigations performed under the authority of the faculty of a regularly 
incorporated medical college or university of this state.

I take it that, if the kaporos chicken were eaten after being slaughtered, the 
action would not be illegal, and the injunction would not cover the sale of the 
chicken.  But according to the plaintiff's papers, it appears that the chickens 
are not being eaten -- partly because plaintiffs had earlier argued that the 
carcasses were "unsanitary" -- but are instead being "rendered into fertilizer."

I'm inclined to think that these exceptions don't stop the law from being a law 
of general applicability for Employment Division v. Smith purposes, because 
they aren't focused on singling out religious practice for special burdens.  
(They do favor some secular practices over religious practices, but I think 
that's OK, as it is for a vast range of other laws that have many secular 
exceptions, such as Title VII, copyright law, the duty to testify, and many 
more.)  But I'd love to hear what others think.

Note also that California courts have not yet decided whether the California 
Constitution's religious freedom provision should be interpreted using the 
Sherbert/Yoder model -- though, given the current liberal retreat from the old 
Justice Brennan/ACLU position, I suspect that California courts will follow 
Justice Scalia rather than Justice Brennan on this.

Eugene
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Religionlaw@lists.ucl

"California Court Issues TRO Against Kaporos Practices"

[Volokh, Eugene]

>From 
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:

As previously reported, in late September an animal rights group filed suit 
against Chabad of Irvine in a California federal district court challenging 
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use 
of live chickens which are then slaughtered. (Complaint in United Poultry 
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint 
contended that defendants are in violation of California's unfair business 
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show 
cause why the case should not be dismissed for lack of standing. (Full text of 
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:

   UPC has standing under the Unfair Competition Law based on its 
diversion of organizational resources spent addressing Defendants' unlawful 
activity and attempting to convince authorities to take action.

The court was apparently convinced. It issued another order (full text 
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting 
plaintiff a temporary restraining order barring defendants from killing 
chickens or other animals in exchange for a fee or donation in violation of 
California Penal Code Sec. 597(a). It set a hearing on whether to order a 
preliminary injunction for October 13, the day after Yom Kippur-- effectively 
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this?  Note that sec. 597(a) generally bans 
killing animals, but excludes killings allowed under sec. 599c:

No part of this title shall be construed as interfering with any of the laws of 
this state known as the "game laws," or any laws for or against the destruction 
of certain birds, nor must this title be construed as interfering with the 
right to destroy any venomous reptile, or any animal known as dangerous to 
life, limb, or property, or to interfere with the right to kill all animals 
used for food, or with properly conducted scientific experiments or 
investigations performed under the authority of the faculty of a regularly 
incorporated medical college or university of this state.

I take it that, if the kaporos chicken were eaten after being slaughtered, the 
action would not be illegal, and the injunction would not cover the sale of the 
chicken.  But according to the plaintiff's papers, it appears that the chickens 
are not being eaten -- partly because plaintiffs had earlier argued that the 
carcasses were "unsanitary" -- but are instead being "rendered into fertilizer."

I'm inclined to think that these exceptions don't stop the law from being a law 
of general applicability for Employment Division v. Smith purposes, because 
they aren't focused on singling out religious practice for special burdens.  
(They do favor some secular practices over religious practices, but I think 
that's OK, as it is for a vast range of other laws that have many secular 
exceptions, such as Title VII, copyright law, the duty to testify, and many 
more.)  But I'd love to hear what others think.

Note also that California courts have not yet decided whether the California 
Constitution's religious freedom provision should be interpreted using the 
Sherbert/Yoder model -- though, given the current liberal retreat from the old 
Justice Brennan/ACLU position, I suspect that California courts will follow 
Justice Scalia rather than Justice Brennan on this.

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

[Volokh, Eugene]

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

   Eugene

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

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

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

Moreover, the government could employ other alternatives to ensure that 
Stephens retains employment or the benefits of employment. For example, the 
federal government could directly hire Stephens and allow Stephens to dress 
however Stephens wants; the government could pay Stephens a full salary and 
benefits from the time of Stephens’s discharge until Stephens acquires 
comparable employment; or the government could provide incentives for other 
employers (including, but not limited to, employers in the funeral industry) to 
hire Stephens and allow Stephens to dress as a member of the opposite sex on 
the job. See Hobby Lobby, 134 S. Ct. at 2780 (“[F]or the Government to assume 
the cost of providing the four contraceptives at issue to any women who were 
unable to obtain them . . . due to their employers’ religious objections[] . . 
. would certainly be less restrictive of the plaintiffs’ religious liberty”). 
With all of these alternatives available to the government, the EEOC cannot 
meet RFRA’s least-restrictive means requirement and thus cannot satisfy strict 
scrutiny.

I wouldn't have even had the gall to put that on a law school exam, it's such a 
ridiculous notion of what the statute requires (but not inconsistent with Hobby 
Lobby!).

I therefore agree that the LRM analysis in opinion is absurd.  But so, I think, 
is the "substantial burden" discussion.  This is what we might expect as a 
result of the complicity arguments proffered in the contraception cases:  Now, 
an employer argues with a straight face that his religion would prohibit him 
from retaining an employee who wears a skirt, if that employee was born with 
male reproductive organs, even if compelled to do so by law.

What the contraception litigation has wrought . . . .

On Thu, Aug 18, 2016 at 5:59 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
In today’s EEOC v. R.G. & G.R. Harris Funeral Homes, 
http://www.politico.com/f/?id=0156-9f0a-d073-a5d7-df9ef3920001, a federal 
district court rejected a EEOC claim on RFRA grounds.  I’m a bit puzzled, 
though, by the court’s reasoning, and I wanted to ask what fellow list members 
thought.

1.  First, the facts:  Harris Funeral Homes, 95% owned by Thomas Rost, has a 
dress code:  Men are to wear traditional male suits with neckties, while women 
are to wear skirt-suits.  (The district court concludes that this dress code 
violates Title VII’s ban on sex discrimination.)  Anthony Stephens worked for 
several years for Harris Funeral Homes, but then began transitioning to female, 
under the name of Amiee Stephens; when Harris learned that Stephens was going 
to insist on wearing skirt-suits to work, Harris fired Stephens.

2.  The EEOC sued, claiming this was impermissible sex-stereotyping 
discrimination under Price Waterhouse, because Stephens was fired for insisting 
on wearing stereotypically female clothing.  Rost argued that requiring him to 
have the business represented by someone whom Rost believes to be male wearing 
distinctively female clothing would violate Rost’s religious beliefs:

Rost believes “that the Bible teach

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

[Volokh, Eugene]

In today's EEOC v. R.G. & G.R. Harris Funeral Homes, 
http://www.politico.com/f/?id=0156-9f0a-d073-a5d7-df9ef3920001, a federal 
district court rejected a EEOC claim on RFRA grounds.  I'm a bit puzzled, 
though, by the court's reasoning, and I wanted to ask what fellow list members 
thought.

1.  First, the facts:  Harris Funeral Homes, 95% owned by Thomas Rost, has a 
dress code:  Men are to wear traditional male suits with neckties, while women 
are to wear skirt-suits.  (The district court concludes that this dress code 
violates Title VII's ban on sex discrimination.)  Anthony Stephens worked for 
several years for Harris Funeral Homes, but then began transitioning to female, 
under the name of Amiee Stephens; when Harris learned that Stephens was going 
to insist on wearing skirt-suits to work, Harris fired Stephens.

2.  The EEOC sued, claiming this was impermissible sex-stereotyping 
discrimination under Price Waterhouse, because Stephens was fired for insisting 
on wearing stereotypically female clothing.  Rost argued that requiring him to 
have the business represented by someone whom Rost believes to be male wearing 
distinctively female clothing would violate Rost's religious beliefs:

Rost believes "that the Bible teaches that God creates people male or female." 
He believes that "the Bible teaches that a person's sex is an immutable 
God-given gift and that people should not deny or attempt to change their sex." 
Rost believes that he "would be violating God's commands" if he were to permit 
one of the Funeral Home's funeral directors "to deny their sex while acting as 
a representative of [the Funeral Home]. This would violate God's commands 
because, among other reasons, [Rost] would be directly involved in supporting 
the idea that sex is a changeable social construct rather than an immutable 
God-given gift." Rost believes that "the Bible teaches that it is wrong for a 
biological male to deny his sex by dressing as a woman." Rost believes that he 
"would be violating God's commands" if he were to permit one of the Funeral 
Home's biologically-male-born funeral directors to wear the skirt-suit uniform 
for female directors while at work, because Rost "would be directly involved in 
supporting the idea that sex is a changeable social construct rather than an 
immutable God-given gift."

(Rost says that he doesn't care what Stephens wears off-duty; Rost's objection 
is to what he perceives as Stephens's cross-dressing while representing Harris 
to customers.)

3.  The court assumes without deciding that the EEOC has a compelling interest 
in "protecting employees from gender stereotyping in the workplace."  But it 
concludes that the EEOC hasn't shown that its position is "the least 
restrictive means of eliminating clothing gender stereotypes at the Funeral 
Home under the facts and circumstances presented here."  In particular, the 
court says, "couldn't the EEOC propose a gender-neutral dress code 
(dark-colored suit, consisting of a matching business jacket and pants, but 
without a neck tie) as a reasonable accommodation that would be a less 
restrictive means of furthering that goal under the facts presented here?  Both 
women and men wear professional-looking pants and pants-suits in the workplace 
in this country, and do so across virtually all professions."  And the court 
notes that this dress code would be "similar to the gender-neutral pants, 
business suit jackets, and white shirts that the male 18 and female Court 
Security Officers in this building wear."

4.  Now my question:  Let's say the court's remedy is indeed compatible with 
Rost's religious beliefs.  (Some people do believe that their religion forbids 
women from wearing pants, but let's assume that this isn't Rost's view, and 
that he perceives pantsuits as suitable for both men and women who are 
representing his business to the customers.)  That might bear on what 
injunction would be issued; but since the EEOC only asked for an injunction 
"enjoining Defendant Employer, its officers, agents, servants, employees, 
attorneys, and all persons in active concert or participation with them, from 
engaging in any unlawful practice which discriminates against an employee or 
applicant because of their sex, including on the basis of gender identity," 
that injunction wouldn't even be violated by the court's pants-and-jackets 
alternative, right?

And beyond that, the EEOC is seeking that Stephens be compensated for the 
dismissal (as the court acknowledges, stressing that part of the burden on 
Harris if liability is found would be "the economic consequences for the 
Funeral Home could be severe - having to pay back and front pay to Stephens in 
connection with this case").  How would the proposed new dress code serve the 
EEOC's interest in making sure that people who were discriminated against based 
on sex stereotyping are compensated?  After all, the EEOC wasn't even involved 
in the case when Stephens was 

Inferring from candidate's religious talk in interview that the candidate would inappropriately talk about religion to clients

[Volokh, Eugene]

I thought I'd ask list members what they thought of the opinion 
in Buxton v. Kurtinitis, 2016 WL 3582004 (D. Md. June 28, 2016) (excerpted 
below).  I should note up front that it looks like there were many good reasons 
why the plaintiff might have been rejected from the community college 
vocational training program.  My question, though, is whether the rationale 
offered by the court - that college officials can assume that, when "an 
applicant brought up his or her religion during an interview, he or she may 
also bring it up in communications with a patient" - is permissible.

My tentative sense is that inferring a person's future bad behavior because he 
talks about religion in an admissions interview (where such talk is not 
forbidden) would be impermissible (even if empirically rational), just as 
inferring a person's future bad behavior because he identifies himself as a 
devout Muslim or Mormon or Catholic is impermissible.  But I'd love to hear 
what others think about this.

Also, what do people think of the footnote that the court 
included following the "he or she may also bring it up" sentence:  "Buxton 
apparently is a Christian who practices his religion by going to church two 
days a year - on Easter and Christmas."  The judge (J. Frederick Motz) didn't 
expressly rely on this as part of his argument, but he must have thought it 
significant and relevant, or else he wouldn't have mentioned it.  Is it quite 
right for judges to essentially imply (unless I'm misunderstanding this) that 
Christians who don't view church attendance as an important part of their 
religiosity should have their arguments discounted on those grounds, or 
otherwise be faulted by the government?

Here's the excerpt from the opinion:

Dustin Buxton has brought this action against Adrienne Dougherty, the Program 
Director and Coordinator of Radiation Therapy at the Community College of 
Baltimore County ("CCBC"). Buxton asserts two claims, one for violation of the 
Establishment Clause of the First Amendment and the other for denial of equal 
protection

Buxton applied for admission in 2013 to the Radiation Therapy Program ("RTP") 
at CCBC. He again applied to the Program in 2014. The RTP is a very competitive 
program, and Dougherty limits the number of persons who can be accepted to the 
Program by the number of positions that she believes will be available to 
people who complete the Program. Buxton was ranked 36 out of 44 candidates in 
2013. In 2014 he was not interviewed

Dougherty recommended that if he was interested in reapplying to the RTP, 
Buxton (1) complete a full week of observation in a new facility; (2) improve 
his grades in the pre-requisite courses, and (3) seek assistance from CCBC 
employee Linda Brothers to improve his interpersonal skills. Buxton did not 
complete any additional observation days or seek assistance from Ms. Brothers. 
He did, however, take the pre-requisite courses again and substantially 
improved his scores.

In 2014 Buxton was one of 72 applicants for the RTP. Dougherty decided that 
only 36, or half of the number of candidates, would be interviewed. The 
interviewees for the 2014 round were ranked first by their observation day 
score and then by GPA. This approach was caused by the fact that CCBC was 
seeking candidates with the interpersonal skills necessary to interact with 
patients. Dougherty subscribed a score of zero for the observation day to 10 
candidates, including Buxton. Based on his ranking, Buxton did not receive an 
interview for the 2014 RTP.

Buxton alleges that the only mention that he made of his faith and religion 
during his 2013 observation day was an answer "My faith" in response to 
question "What do you base your morals on?" Nevertheless, in a "feedback 
statement" that she prepared (and that was shared with Buxton) Dougherty wrote 
that he "brought up religion a great deal during the interview. Yes, this is a 
field that involves death and dying; but religion cannot be brought up in the 
clinic by therapists or students." Dougherty apparently made the assumption 
that if an applicant brought up his or her religion during an interview, he or 
she may also bring it up in communications with a patient

This is not the stuff of an Establishment Clause or Equal Protection claim  
Dougherty had a secular purpose in making her assessment of Buxton: not to have 
religious beliefs expressed to patients, who did not raise the issue. Likewise, 
her actions did not have the primary effect of advancing or inhibiting religion 
and of excessively entangling church and state. This is particularly true in 
light of the fact that Dougherty had no difficulty in having someone discuss 
religion with a patient if the patient raised the topic of religion.

Further, the record establishes that Buxton was one of four candidates who made 
faith-based statements during the RTP admissions process, and two of those 

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Volokh, Eugene]

   I agree with Marty that this seems pretty dispositive.  My one 
question (a real one, not a Socratic one) is this:  What does the citation to 
Seeger in Frazee mean?  I assume it’s referring to this passage from Seeger:

We have concluded that Congress, in using the expression "Supreme Being" rather 
than the designation "God," was merely clarifying the meaning of religious 
training and belief so as to embrace all religions and to exclude essentially 
political, sociological, or philosophical views. We believe that under this 
construction, the test of belief "in a relation to a Supreme Being" is whether 
a given belief that is sincere and meaningful occupies a place in the life of 
its possessor parallel to that filled by the orthodox belief in God of one who 
clearly qualifies for the exemption. Where such beliefs have parallel positions 
in the lives of their respective holders we cannot say that one is "in a 
relation to a Supreme Being" and the other is not. We have concluded that the 
beliefs of the objectors in these cases meet these criteria, and, accordingly, 
we affirm the judgments in Nos. 50 and 51 and reverse the judgment in No. 29.

Likewise, later in Seeger, the Court says “Within that phrase would come all 
sincere religious beliefs which are based upon a power or being, or upon a 
faith, to which all else is subordinate or upon which all else is ultimately 
dependent” (emphasis added).  Given this, what counts as the “purely secular 
views” that Frazee is rejecting?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965);Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972).

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

Dan

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




From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM

To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Seeger provides 

RE: Christian convert's claim that church broke confidentiality promise and thus exposed him to attack for apostasy in Syria

[Volokh, Eugene]

   1.  I’m not an expert on contract law, but I had thought that 
“If you do X, I promise to do Y,” there’s adequate consideration regardless of 
whether X really “benefit[s]” the promisor in any tangible way.  The classic 
“I’ll pay you $1000 when you turn 21, if you don’t smoke before then” is, I 
thought, an example of that (the X there consists in refraining from action, 
but the analysis is the same).  See Restatement (Second) of Torts sec. 71 ill. 
9.

   It may well be that church officials do benefit from the 
conversion – they might see promoting conversion as spiritually beneficial for 
themselves (because it fulfills their religious duty) as well as for the 
convert.  But as I understand it, modern contract law doesn’t require us to 
assess such matters, just as it doesn’t require us to determine whether the 
offeror in the if-you-don’t-smoke illustration is benefiting from the offeree’s 
not smoking.  (The illustration had an uncle offering this to the nephew, and 
the uncle may well derive emotional benefit from knowing the nephew is 
abstaining from vice; but likewise church officials may derive emotional 
benefit from knowing that the convert is achieving salvation through their 
efforts.)

   2.  If V takes a nude photo of herself, sends it to D in 
exchange for D’s promise not to distribute it, and then D breaches that 
promise, I would think that would yield an open-and-shut breach of contract 
case.  Would there even be any controversy about that?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Monday, June 27, 2016 8:46 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: Christian convert's claim that church broke confidentiality 
promise and thus exposed him to attack for apostasy in Syria

Eugene asks, “ Why wouldn’t that be a legally enforceable contract ?” What 
consideration is there for the Church and its agents?  Conversion is a benefit 
to the convert, not the Church.  Consider a secular analogue, plaintiff seeks 
to participate in the rituals of a secular organization, be it the KKK or 
Yale’s Skull and Bones, and extracts a promise that the organization’s leaders 
will keep his participation confidential.  When the organization is offering a 
privilege and the individual is not even becoming a dues paying member, all the 
consideration seems to be flowing to the individual.  It’s a different case 
when, for example, a reporter promises confidentiality to a source, because the 
consideration is the information exchanged. Eugene also says in his WAPO piece, 
“But if the defendants really agreed not to reveal this information, then they 
have waived their free speech rights on this score.”   Does that mean that 
revenge porn is actionable breach of contract if  before sending a compromising 
picture the victim extracted a promise that it will not be more widely 
circulated?

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, June 26, 2016 9:14 PM
To: Law & Religion issues for Law Academics
Subject: Christian convert's claim that church broke confidentiality promise 
and thus exposed him to attack for apostasy in Syria

   Howard Friedman summarizes the decision in the case, but I’m not 
sure it’s right.  Among other things, the Complaint asserts that church 
officials expressly promised that plaintiff’s “baptism and conversion would 
remain private,” and breached that promise.  Why wouldn’t that be a legally 
enforceable contract (see 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/17/convert-to-christianity-sues-church-claiming-it-broke-confidentiality-promise-and-thus-exposed-him-to-attack-for-apostasy-in-syria/)?

   Eugene

Feed: Religion Clause
Posted on: Sunday, June 26, 2016 11:28 AM
Author: Howard Friedman
Subject: Court Says Religious Autonomy Precludes Adjudication of Suit By 
Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held 
that the "religious autonomy doctrine" requires it to dismiss a suit against a 
U.S. church by a convert from Islam to Christianity who was captured and 
tortured in Syria because of his conversion. The facts are set out more fully 
in a complaint (full 
text<http://bloximages.newyork1.vip.townnews.com/tulsaworld.com/content/tncms/assets/v3/editorial/1/40/140e84c2-8d10-5a54-9d3d-d13294c224d7/576db887d0b63.pdf.pdf>)
 filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to 
convert, but told First Presbyterian Church leaders that his conversion had to 
remain confidential because he periodically traveled back to Syria and the 
punishment for apostasy under Sharia law was death. Despite assurances of 
confidentiality, the chu

Christian convert's claim that church broke confidentiality promise and thus exposed him to attack for apostasy in Syria

[Volokh, Eugene]

   Howard Friedman summarizes the decision in the case, but I’m not 
sure it’s right.  Among other things, the Complaint asserts that church 
officials expressly promised that plaintiff’s “baptism and conversion would 
remain private,” and breached that promise.  Why wouldn’t that be a legally 
enforceable contract (see 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/17/convert-to-christianity-sues-church-claiming-it-broke-confidentiality-promise-and-thus-exposed-him-to-attack-for-apostasy-in-syria/)?

   Eugene

Feed: Religion Clause
Posted on: Sunday, June 26, 2016 11:28 AM
Author: Howard Friedman
Subject: Court Says Religious Autonomy Precludes Adjudication of Suit By 
Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held 
that the "religious autonomy doctrine" requires it to dismiss a suit against a 
U.S. church by a convert from Islam to Christianity who was captured and 
tortured in Syria because of his conversion. The facts are set out more fully 
in a complaint (full 
text)
 filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to 
convert, but told First Presbyterian Church leaders that his conversion had to 
remain confidential because he periodically traveled back to Syria and the 
punishment for apostasy under Sharia law was death. Despite assurances of 
confidentiality, the church published an announcement of his baptism in its 
Order of Worship, which was posted on the World Wide Web.  After traveling back 
to Syria, plaintiff was bound, beaten and tortured by radical Muslims who 
threatened to behead him. He eventually escaped.  His suit alleges that the 
church is guilty of negligence, breach of contract and outrageous conduct 
leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, 
Oklahoma,
 (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of 
the names of those who have been baptized "is a key part of how the Church 
requires a conversion and baptism to be 'visible" to the world." The court went 
on to say:
the simple dispositive issue is whether the public dissemination of Plaintiff's 
name as a baptized person is "rooted in religious belief"
[A] secular Court like this one must not consider claims ... that arise out of 
a sacrament because a sacrament is part of the most sacred beliefs of that 
religious institution Defendants' deeply held religious belief about the 
visible, public nature of baptism must not be disturbed by this Court. 
[emphasis in original]
Tulsa 
World
 reports on the decision, with additional background.


View 
article...
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What fraction of EEOC religious accommodation claims are brought on behalf of Muslims?

[Volokh, Eugene]

My apologies for the self-promotion, but I thought some on the list might be 
interested in some data I've gotten from the EEOC on this, which I report in 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/21/the-eeoc-religious-accommodation-claims-and-muslims/;
 here's an extract.

Eugene


https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/21/the-eeoc-religious-accommodation-claims-and-muslims/


Many of the EEOC's religious accommodation lawsuits don't make the news, but 
some do, and some of those involve Muslim employees (e.g., the $240,000 jury 
award to Muslim truck drivers who were fired for refusing to transport 
alcohol).
 When I've blogged about some such cases, some readers suggested that the EEOC 
was mostly backing Muslim employees and rarely backed others.

I therefore decided to figure out: What fraction of EEOC religious 
accommodation lawsuits over the past several years were brought on behalf of 
Muslims? I got EEOC data on all such lawsuits from the start of 2009 until late 
October 2015 (when I submitted the first of my requests), and here's what I 
found:
1.There were 54 cases in which the EEOC brought religious accommodation 
lawsuits on behalf of employees.
2.   Fourteen, or basically one-quarter, were brought on behalf of Muslim 
employees; one more was brought on behalf of a class of employees including 
both Muslims and non-Muslims.
3.   Six were brought on behalf of Seventh-day Adventists, six on behalf of 
Jehovah's Witnesses and the others on behalf of members of various other 
religious groups.
4.   Of the 14 claims brought on behalf of Muslims, 11 were claims that 
employers should have given religious exemptions from generally applicable 
appearance rules - restrictions on head coverings (eight cases), a general 
uniform policy (one case), and no-beard rules (two cases); the 
mixed-Muslim-and-non-Muslim claim also involved such appearance rules. Such 
religious appearance claims are commonly brought by members of other religious 
groups: For instance, a couple of the EEOC claims during that period were on 
behalf of Pentecostal women who wanted an exemption from a uniform policy that 
required all employees to wear pants, and several others involved people who 
felt religious obligations to wear long hair or beards.
5.Of the 14 claims, two others were claims about breaks for prayers or 
similar Ramadan accommodations. Such claims are also commonly brought by 
members of other religious groups - indeed, more than 20 of the non-Muslim EEOC 
claims during that period involved requests not to work on the claimant's 
Sabbath.
6.   The remaining one of the 14 claims involved the truck drivers' request to 
be exempted from delivering 
alcohol;
 such claims are rarer, but those too sometimes 
prevail. The closest 
analogies from the 2009-2015 cases were two cases brought on behalf of 
Jehovah's Witnesses: In the first, a Jehovah's Witness had been 
fired
 for refusing to participate in a company event in which employees had to wear 
a red shirt as a sign of support for the military; in the second, a Jehovah's 
Witness had been fired 
for refusing to wear a Santa hat and apron during the Christmas season, as the 
company required.

So cases involving Muslims represented a minority of all cases brought by the 
EEOC and generally involved the sorts of claims that are routinely brought by 
non-Muslims (with the truck drivers' case being the one possible exception).

Now the Muslim employee cases definitely were a much higher percentage of total 
EEOC cases than the Muslim share of the U.S. population (which appears to be 
about 1 percent). But that makes sense: Different groups have different levels 
of need for religious accommodations, whether because their religious practices 
violate many employers' work rules or because the employers are less likely to 
informally accommodate some groups than others.

For instance, there are apparently about half as many Seventh-day 
Adventists
 as Muslims in the United States, and yet Seventh-day Adventists account for 
six of the 54 cases, which is to say about half as many as Muslims. The reason 
isn't, I think, EEOC discrimination in favor of Seventh-day Adventists - 
rather, it's that the Seventh-day Adventists' insistence on not working Friday 
sundown to Saturday sundown 

FW: AALS program on Law & Religion

[Volokh, Eugene]

From: Timothy Daniel Lytton [mailto:tlyt...@gsu.edu]
Sent: Friday, June 10, 2016 10:57 AM
To: Volokh, Eugene <vol...@law.ucla.edu>
Subject: AALS program on Law & Religion


I am writing with information about an AALS Session that will be co-sponsored 
by the Jewish Law and Islamic Law sections at the upcoming annual meeting in 
San Francisco: Is There Room in the U.S. Legal System for Halacha and Sharia? 
Family Law, Public Accommodations, Antitrust, and Arbitration. The session will 
be on Wednesday, January 4, from 8:30 a.m. to 10:15 a.m.  The panelists will be:

Moderator:

Michael Helfand
Associate Professor of Law
Pepperdine University School of Law

Panelists:

Michael J. Broyde
Professor of Law
Emory University School of Law

Haider Ala Hamoudi
Associate Professor of Law
Associate Dean of Research & Faculty Development
University of Pittsburgh School of Law

Asifa Quraishi-Landes
Associate Professor of Law
University of Wisconsin Law School

Barak Richman
Edgar P. and Elizabeth C. Bartlett Professor of Law & Professor of Business 
Administration
Duke University School of Law

Topics for discussion will include:

(a) the legal controversy over government regulation of the practice of 
metzitzah b'peh in New York and its implications for other forms of ritual 
practice in the American Jewish and Islamic communities (ritual practice v. 
public health regulation)

(b) the enforceability of the Islamic mahr that a husband is required to give a 
wife upon concluding the marriage contract (religious law v. commercial law),

(c) the controversy over single-sex swim hours at public swimming pools 
(religious regulation of modesty v. laws governing public accommodation)

(d) the regulation of clergy placement and employment terms in congregations by 
rabbinic professional associations and its implications for other religious 
communities (communal self-governance v. antitrust), and

(e) judicial approval of religious arbitration in the recent dispute between 
Luis Garcia and the Church of Scientology and its implications for religious 
arbitration in Jewish and Islamic communities (communal self-governance v. due 
process rights).

The panel will consider these topics not only from the perspective of U.S. 
law's accommodation of religious law but also the capacity and obligation of 
religious law to accommodate secular legal norms in ways that may reduce 
tension. Audience participation in the discussion will be most welcome.

I hope you will consider attending and spreading the word to anyone whom you 
think might be interested.



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RE: Jewish law, women's bodies, and accommodations

[Volokh, Eugene]

hat law at state expense? And what 
authority does a civil judge have to tell them that their laws have some 
alternative purpose or function?

Similarly, false advertising and other claims against kosher certifying 
agencies and food manufacturers that produce food labeled "kosher," despite not 
being kosher from the perspective of the plaintiff, fail precisely because 
civil courts lack the authority to determine how Jewish law operates or whether 
a given food item is kosher under Jewish law. It certainly follows that courts 
lack the authority to determine the purpose underlying the laws of 
kashrut--say, perhaps, to promote hygiene--and then use that assumption to 
resolve related matters. Indeed, permitting a court to decide the why behind 
religious law is a greater intrusion into the religious sphere than permitting 
a court to decide the what.

That analysis applies no differently when discussing religious laws governing 
modesty, regardless of the popularity of those laws in civil society.

Meir Katz



Message: 1

Date: Sat, 4 Jun 2016 00:50:23 +

From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>

To: Law & Religion issues for Law Academics

   <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>

Subject: Jewish law, women's bodies, and accommodations

Message-ID:

   
<cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com<mailto:cy1pr0501mb13231558cb1f1f33875cea3af6...@cy1pr0501mb1323.namprd05.prod.outlook.com>>



Content-Type: text/plain; charset="utf-8"



Hillel Levin writes:







My primary opposition to the gender-segregated swim hours is not simply the 
formal segregation of the sexes and the practical burdens this may pose on 
people. Rather, it is that the Jewish laws relating to sexual modesty have 
embedded within them, and reinforce, certain assumptions and norms about 
women's and girls' bodies. I don't think the law should reflect, reinforce, or 
send those messages in public spaces.







Setting this aside as a basis for political opposition, are courts allowed to 
consider the underlying assumptions and norms that may be said to be embedded 
in religious laws?  Say that in town J, there are many Orthodox Jews, and many 
Orthodox women want single-sex swim hours because of Jewish laws that are based 
on, and ?reinforce? ?certain assumptions and norms about women?s and girls? 
bodies.?  Say that in town W, there are many Wiccan Goddess-worshippers, and 
many women who belong to that group want single-sex swim hours because they 
believe women should spend more time celebrating and improving their bodies 
free of male observation and the self-consciousness and body image problems 
that it brings.  And say that in town S, there are many secular people, and 
many women in that town like single-sex swim hours for the secular reasons 
given in the Livingwell case I mentioned before.







Could it be that courts might uphold the single-sex pool hours in town W and 
maybe town S, because the women?s preferences are based on good assumptions and 
norms about women?s bodied, but reject them in town J because the judges think 
that Jewish law is based on bad assumptions and preferences?







Eugene





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***

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RE: The Bedford pool exemption--a collection of reactions

[Volokh, Eugene]

   I agree entirely with Marty’s astute analysis in items 1 and 2, 
and with Marty’s conclusion that women-only swimming hours without 
corresponding men-only hours are unconstitutional; more shortly on the 
“gerrymander” question.

I should say, though, that I’m not sure whether the Equal Protection Clause 
would allow single-sex swimming hours both for men and women; I think that’s a 
hard question, which turns on whether the tolerance for same-sex shower rooms, 
restrooms, dorm room assignments, etc. should also extend to other situations 
that are relatively similar, but different enough that the national majority 
doesn’t see a sufficient privacy/modesty interest there.  Livingwell suggests 
that sex is a permissible bona fide qualification in such cases, where state 
laws that apply to private businesses are involved.  I’m not sure whether the 
Equal Protection Clause should likewise allow single-sex exercise programs, 
swimming pools, etc. when it comes to government organizations.

 Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 07, 2016 5:34 AM
To: Law & Religion issues for Law Academics 
Subject: The Bedford pool exemption--a collection of reactions

Well, I'm sure glad I asked about this case -- this has been a wonderfully 
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the sake 
of argument (and to clarify our analysis) a counterfactual, namely, that this 
were a classic religious exemption:  On Mondays, Wednesdays and Fridays from 
9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45, the Bedford pool 
is open only to women who have religious objections to co-ed swimming.  Would 
that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be able 
to use the pool during those eight hours of the week.  But that's putting the 
cart before the horse.  Under governing doctrine, a religion-only accommodation 
is ok only if it alleviates a significant state-imposed burden on religious 
exercise.  Are the orthodox women significantly burdened by the city's general 
rule that its pools are open to the public at large?

Of course, that's a classic baselines dilemma.  On the one hand, one might say: 
 Yes, because their access to a very valuable and universally available public 
benefit is conditioned on their willingness to violate a religious injunction.  
Cf. Sherbert.  On the other hand, a city does not have to offer free swimming 
pools in the first instance, and such a gratuitous "benefit" is a whole lot 
less important than the unemployment benefits at issue in Sherbert.  Many 
people can and do fail to take advantage of public pools, and their lives are 
not dramatically diminished as a result.  Unlike in Sherbert, the offer of this 
benefit is very unlikely to induce anyone to violate religious injunctions.  
Or, to put it slightly differently, the "benefit" itself is access to a public 
pool (akin to a public park or other place of public accommodation); orthodox 
women simply wish that the city were also offering a different benefit, i.e., 
access to women-only pools; and the failure of the state to offer that 
alternative benefit cannot be viewed as a significant state-imposed burden on 
religious exercise.

If the "correct" answer is "yes, opening the pool to the public at large does 
significantly burden orthodox women's religion," then we would need to 
address--to weigh--the harm to the other NYC residents who are excluded during 
the eight hours.  But here's the interesting point (to me, anyway):  It's 
difficult to disaggregate the two assessments of "harm" on either side of the 
balance.  If you think that there is no significant harm to the orthodox women 
in not being able to use the pool at all, then, almost by definition, there 
wouldn't be any significant harm to the excluded residents in being closed off 
from swimming for eight hours a week.  The exemption might still be 
unconstitutional in such a case, because of the absence of state-imposed harm 
to religion; but that wouldn't be because of harm to third parties.  If, by 
contrast, you think that the rest of the Bedford residents are materially 
harmed by being excluded for eight hours, then wouldn't you have to concede 
that the state has harmed the orthodox women by imposing a condition that makes 
them unable to enjoy the pool at all?  In the latter case, with harm on both 
sides, the harm to the women if the exemption is denied would appear to be 
greater.  And therefore if a "balance" of harms were relevant to the EC 
equation (concededly a contested, and complicated, assumption, and one I am not 
necessarily endorsing here), the harm to the women presumably would outweigh 
the harm to other residents.

2.  OK, 

Accommodations and "sectarian discrimination"

[Volokh, Eugene]

   I appreciate Chip’s concerns, but I wonder how far they can go.  
A cafeteria at a government-run institution decides to offer kosher options, 
because there happen to be quite a few observant Jewish patrons or employees 
who eat there.  The decision is a local one, made by the local manager, without 
any overarching government policy.  Should that be rejected because we can’t 
have complete confidence that the government would likewise offer halal meals 
if at some point some similar institution ends up having quite a few observant 
Muslim patrons or employees?

   Or say that a school in a heavily Jewish area closes for Rosh 
Hashanah and Yom Kippur.  Should that be found unconstitutional because we 
can’t have complete confidence that a different school in the same district (or 
for that matter, a whole different school district) would do the same for 
Muslim holidays in heavily Muslim areas?

   Or say that a government employer accommodates an employee’s 
religious concerns, even beyond what is required by Title VII.  Say, for 
instance, that there is a more de minimis burden for the employer in exempting 
an employee from, say, handling alcohol, or in allowing the employee three 
weeks off to go on a pilgrimage to Mecca.  Should that be found 
unconstitutional because we can’t have complete confidence that the government 
employer would similarly accommodate other religious objectors who have 
similarly burdensome accommodation requests?

   I would think the answer to all these questions is “no,” 
especially when the accommodation don’t require the government to decide who 
belongs to a particular religion and who doesn’t.  (The Mecca pilgrimage / 
alcohol handling example may actually be harder in this respect, but the first 
two, and the single-sex hours example, don’t pose this problem.)  Requiring 
executive agencies that deal with customer and employee needs to accommodate 
through general rule, or not at all, would lead to many fewer accommodations.   
And I don’t think the single-sex swimming hours situation is any different.

And the concern about discrimination, I take it, would usually be dealt with by 
offering later applicants an opportunity to demand equal treatment with the 
applicants whose objections were granted (enforceable with a lawsuit and an 
injunction if necessary), assuming that the accommodation is indeed comparably 
inexpensive.  In Kiryas Joel, which involved a special statute, such a claim 
might not have been easily available.  But when it comes to executive action, 
the notion that courts can compel the government to treat employees and patrons 
equally, and to give benefits to similarly situated people without regard to 
religion, seems pretty familiar.

   Eugene

Chip Lupu writes:

2.  The Kiryas Joel problem is not about third party harms; it's about 
sectarian discrimination.  Would any other religious minority in NYC (Muslims, 
for example) be able to get women only pool hours in their neighborhood?  I 
understand there may be problems of proof if they have never tried, and the 
case may turn on the role of the City in tolerating a sex-based policy, in this 
neighborhood, that the City would not tolerate elsewhere.  But there are 
questions here, to which Alan Brownstein alluded when he asked if this were 
Lukumi reversed -- an intentionally sect-based benefit, not available to others.

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Accommodations and "non-religious reasons"

[Volokh, Eugene]

   I'm intrigued by the question about sufficient non-religious 
reasons.  If the question is really whether the government has some reasons for 
an accommodation that don't just stem from the governors' own religious 
beliefs, I would think they'd almost always be present.  Here, for instance, 
the government may want to promote the health (or just happiness) of women who 
would otherwise not go the pool.  After all, the government has secular reasons 
for having pools in the first place: the public's health and pleasure.  If it 
sees that some part of the community feels unable to enjoy the pools, for 
religious reasons or otherwise, there would be ample non-religious reasons to 
jigger the rules in order to make the pools appealing to that part (and to make 
sure that this part gets its taxes' worth).  Now maybe there are Equal 
Protection Clause constraints on what the government can do here.  But there 
surely are non-religious reasons.

   Of course, maybe the question is whether the government has some 
reasons for an accommodation that don't just stem from the accommodated 
people's religious beliefs.  But why should that be the question?  Why would a 
single-sex pool rule be justified if motivated by the Livingwell secular 
women's concern, and not if motivated by Orthodox Jewish (or traditionalist 
Muslim) women's concerns?

   Finally, to respond to the last paragraph, say that it turns out 
that the law in Erznoznik v. City of Jacksonville, which banned the display of 
nudity on drive-in theaters, were motivated in large part by the sense that 
many people thought it was offensive to their sense of modesty to be 
unwillingly confronted by large moving color pictures of nudity.  The law would 
still violate the Free Speech Clause, as the Court held in Erznoznik.  But why 
would it violate the Establishment Clause?  Or is it that it would avoid 
Establishment Clause violation only because many people also don't want to see 
nudity for their own nonreligious reasons (though again I think that some women 
may enjoy single-sex swimming for nonreligious reasons).

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 6:23 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The ban on abortion doesn't violate the Establishment Clause because there are 
sufficient non-religious reasons to justify the ban. If the only reasons 
sufficient to justify the ban were religious, that would contravene the secular 
purpose requirement.

To answer your question below, I'm not arguing that religious accommodations 
that are otherwise consistent with the Equal Protection Clause are 
unconstitutional simply because they are motivated to accommodate religious 
believers. That would be to rule out all religious accommodations (which is not 
my view). Rather, my claim is that when accommodations require (or would 
require) the state to contravene otherwise applicable constitutional 
principles, the Establishment Clause may impose limits based on concerns about 
third party harms.

Maybe you think the Establishment Clause claim here is superfluous, but that 
doesn't seem like a full description of the harms. If the state can't authorize 
some action because it is otherwise constitutionally impermissible, and if it 
does so anyway for purposes of religious accommodation, it hasn't only violated 
the Equal Protection Clause, for example, but it has done so in a way that 
promotes religion over other constitutionally recognized interests. And that 
has Establishment Clause implications under existing doctrine.
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RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   I agree that a state single-race swimming pool program would 
violate the Equal Protection Clause, whether it's motivated by religious or 
secular objections to race mixing.  But I don't see why it would violate the 
Establishment Clause - just as a ban on abortion, for instance, has been held 
to violate the Due Process Clause, but it doesn't violate the Establishment 
Clause.

   But if a state single-sex swimming pool program wouldn't violate 
the Equal Protection Clause, if motivated by some users' secular preferences 
for single-sex swimming (such as the ones in Livingwell), then I don't think it 
would violate the Establishment Clause if motivated by some users' religious 
preferences (for the reasons offered in my abortion funding analogy).

   Micah, are you arguing that an otherwise 
non-Equal-Protection-Clause-violating separate-sex program becomes 
unconstitutional when it is motivated by a desire to accommodate religious 
users?  Or am I misunderstanding your position?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 5:20 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

The point of modifying your example isn't to draw a race analogy. It's to show 
that your example is trading on the assumption of the underlying constitutional 
permissibility of the state's action. And then it's asking whether that 
assumption is doing any work in the Establishment Clause analysis. (You could 
reach the same point by asking how your first two examples would look if 
state-owned hospitals were required to allow abortions under the 14th 
Amendment.)

If the state required a religious accommodation for single-race swimming, that 
accommodation would violate both the Equal Protection Clause and the 
Establishment Clause. It would do the latter by imposing third party harms, 
here harms of constitutional significance (incorporating equal protection 
concerns), on nonbeneficiaries, in contravention of Caldor and Cutter.

Why is it that the harms at issue in Caldor and Cutter can't sound, at least in 
part, in other provisions of the Constitution?

On Jun 6, 2016, at 7:50 PM, "Volokh, Eugene" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
 wrote:


   1.  As I've mentioned before, I don't think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn't accept single-race ones.  Likewise, I'm pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) theLivingwell court would 
not have accepted an argument for single-race health clubs justified by a 
"privacy" rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

   2.  But that's the Equal Protection Clause analysis - as an 
Establishment Clause matter, I likewise don't see how single-race swimming 
hours would pose an Establishment Clause problem.  They violate the Equal 
Protection Clause, but not the Establishment Clause.  Likewise, single-religion 
swimming hours would violate the religious discrimination prohibition, 
seeLarson v. Valente, and not some other Religion Clauses principle (such as 
one that people are trying to bring in here via Estate of Thornton v. Caldor).  
If the objection is about discrimination, whether based on sex, race, or 
religion, that is a matter for the Equal Protection Clause (or the similar 
doctrine of Larson, when it comes to religious discrimination), not for 
Thornton.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On 
Behalf Of Schwartzman, Micah Jacob (mjs4d)
Sent: Monday, June 06, 2016 4:33 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

What if we modify your last example in this way:

   3.  If it doesn't violate the Establishment Clause for 
individual county hospitals to decide whether to provide abortions, why would 
it violate the Establishment Clause for individual

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   It seems to me that hiring only men to collect garbage or drive 
buses in this situation would violate the Equal Protection Clause - whether the 
motivation is to accommodate people's religious views, to spare women jobs in 
what are seen as demeaning or dangerous positions (to offer a secular 
rationale), or any other such rationale.

   On the other hand, say that the accommodation doesn't violate 
the Equal Protection Clause, or any other constitutional provision; there too 
the accommodation is constitutional, whether the motivation is religious or 
secular - that's the no-abortions-in-county-hospitals example.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 4:46 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: Facially neutral accommodations motivated by some objectors' 
religious beliefs

I was focusing on the second part of Chip's post - not the first part. But  I 
think Chip's first argument may be more difficult to resolve than Eugene 
suggests. The first question would be whether as a theoretical matter there can 
be a technically facially neutral law that is so clearly a religious 
accommodation that it is the equivalent of Lukumi, but in reverse  - a 
religious gerrymander that has no other purpose than to permit members of a 
particular faith to practice their religion or to otherwise accommodate their 
beliefs. The second question would be exactly what criteria identifies such a 
gerrymandered accommodation. Third, if the state action can be characterized as 
a religious accommodation, then we would have to decide whether the harms 
imposed on third parties violate the Establishment Clause.

The limited location of the alleged accommodation would probably be relevant to 
the analysis, although it may not be dispositive. Still, suppose a faith 
community makes up a very large percentage of a neighborhood. The community is 
religiously opposed to women working outside the home and believes it would be 
sacrilegious for women to collect the garbage from their houses or drive a city 
run bus in the community's neighborhood on which they would ride. If the 
government accommodates the religious group by hiring only men to collect the 
garbage or drive the bus in this neighborhood (thus deviating from the hiring 
policies applied everywhere else in the city), would that violate the 
Establishment Clause? (Again, leaving equal protection issues aside).

Alan

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2016 3:47 PM
To: Law & Religion issues for Law Academics
Subject: Facially neutral accommodations motivated by some objectors' religious 
beliefs

   1.  Say that a state decides not to allow abortions at 
state-owned hospitals, because taxpayers object to paying for them.  We know 
this is constitutionally permissible, and doesn't violate the Establishment 
Clause, see Harris v. McRae.  It doesn't matter whether the taxpayers object to 
abortion for secular reasons or religious reasons; the state can choose not to 
fund them, without violating the Establishment Clause.  And that is so even 
though one can call this a "burden" on third parties, who as a result find it 
harder to get abortions.

   2.  Now say that a state doesn't regulate this at a state level, 
but leaves it for each hospital to make this decision (based on its sense of 
the preferences of local taxpayers, local employees, etc.).  Unsurprisingly, 
county hospitals in areas where anti-abortion sentiment is more common choose 
not to provide abortions, while county hospitals in other areas do provide 
them.  Does this somehow become an impermissible "religious gerrymander," 
simply because the state leaves this for local hospitals to decide?

   3.  If it doesn't violate the Establishment Clause for 
individual county hospitals to decide whether to provide abortions, why would 
it violate the Establishment Clause for individual city-run swimming pools to 
decide whether to provide single-sex swimming hours?  (Again, I set aside the 
question whether this violates the Equal Protection Clause, quite apart from 
the religious questions.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Jewish law, women's bodies, and accommodations

I think the answer to Chip's question is that an Establishment Clause analysis 
evaluating the harms

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

   1.  As I've mentioned before, I don't think race classifications 
are a helpful analogy to sex classifications where privacy is concerned.  Most 
people accept single-sex shower rooms, changing rooms, and restrooms 
(bracketing for now the discussion about transgender people), though we 
wouldn't accept single-race ones.  Likewise, I'm pretty sure that, when it 
comes to private entities and public accommodations laws (rather than 
government entities and the Equal Protection Clause) the Livingwell court would 
not have accepted an argument for single-race health clubs justified by a 
"privacy" rationale.  The question is whether sex-based privacy/modesty 
rationales, which we accept for some contexts where they represent majority 
views, should also be applicable to nearby areas (such as swimming pools) where 
only a minority sees a strong privacy/modesty concern.  No such question 
applies to race or religion classifications.

   2.  But that's the Equal Protection Clause analysis - as an 
Establishment Clause matter, I likewise don't see how single-race swimming 
hours would pose an Establishment Clause problem.  They violate the Equal 
Protection Clause, but not the Establishment Clause.  Likewise, single-religion 
swimming hours would violate the religious discrimination prohibition, see 
Larson v. Valente, and not some other Religion Clauses principle (such as one 
that people are trying to bring in here via Estate of Thornton v. Caldor).  If 
the objection is about discrimination, whether based on sex, race, or religion, 
that is a matter for the Equal Protection Clause (or the similar doctrine of 
Larson, when it comes to religious discrimination), not for Thornton.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Monday, June 06, 2016 4:33 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Facially neutral accommodations motivated by some objectors' 
religious beliefs

What if we modify your last example in this way:

   3.  If it doesn't violate the Establishment Clause for 
individual county hospitals to decide whether to provide abortions, why would 
it violate the Establishment Clause for individual city-run swimming pools to 
decide whether to provide [co-religionist or single-race] swimming hours?  
(Again, I set aside the question whether this violates the Equal Protection 
Clause, quite apart from the religious questions.)

Still no Establishment Clause problem?



On Jun 6, 2016, at 6:48 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   1.  Say that a state decides not to allow abortions at 
state-owned hospitals, because taxpayers object to paying for them.  We know 
this is constitutionally permissible, and doesn't violate the Establishment 
Clause, see Harris v. McRae.  It doesn't matter whether the taxpayers object to 
abortion for secular reasons or religious reasons; the state can choose not to 
fund them, without violating the Establishment Clause.  And that is so even 
though one can call this a "burden" on third parties, who as a result find it 
harder to get abortions.

   2.  Now say that a state doesn't regulate this at a state level, 
but leaves it for each hospital to make this decision (based on its sense of 
the preferences of local taxpayers, local employees, etc.).  Unsurprisingly, 
county hospitals in areas where anti-abortion sentiment is more common choose 
not to provide abortions, while county hospitals in other areas do provide 
them.  Does this somehow become an impermissible "religious gerrymander," 
simply because the state leaves this for local hospitals to decide?

   3.  If it doesn't violate the Establishment Clause for 
individual county hospitals to decide whether to provide abortions, why would 
it violate the Establishment Clause for individual city-run swimming pools to 
decide whether to provide single-sex swimming hours?  (Again, I set aside the 
question whether this violates the Equal Protection Clause, quite apart from 
the religious questions.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Jewish law, women's bodies, and accommodations

I think the answer to Chip's question is that an Establishment Clause analysis 
evaluating the harms caused by a religious accommodation does require a 
balancing of interests. Indeed, the balancing analysis would have significant 
similarities to the balancing necessary to implement a serious free

Facially neutral accommodations motivated by some objectors' religious beliefs

[Volokh, Eugene]

el's assumption were arguably correct, it would still 
be inappropriate, as Eugene inquires, for a judge (or, for that matter, any 
third-party decision-maker) to use that assumption to bias his decisions. A 
civil judge cannot be in the position of deciding religious questions or 
determining the contours of religious law. For one to conclude that "Jewish 
laws relating to sexual modesty have embedded within them, and reinforce, 
certain [negative] assumptions," he would need to have a deep and rather 
sophisticated understanding not just of what those Jewish laws require, but 
also where they come from, why they exist, and how they impact those who follow 
them. That inquiry necessarily intrudes deeply into religious thought. Even if 
a civil judge were able to perform that inquiry properly and reach an accurate 
conclusion, it is not a proper role for that judge.

Moreover, as I intimated in my first paragraph, the assumption that Hillel 
reaches is contrary to the purpose and objective behind Jewish modesty laws as 
generally understood by its adherents. As a result, using the assumption to 
guide judicial decision-making would not merely improperly impose physical 
burdens on the religious adherents, it would also impose on them an alternative 
understanding as to what their religious laws actually mean. If the women (and 
men) who willingly subject themselves to religious modesty laws understand 
those laws as not as reinforcing norms and assumptions that are contrary to 
public policy (broadly defined), why should the contrary, and possibly 
unfounded, assumptions of a judge (or anyone) play any role at all in 
determining their entitlement to observe that law at state expense? And what 
authority does a civil judge have to tell them that their laws have some 
alternative purpose or function?

Similarly, false advertising and other claims against kosher certifying 
agencies and food manufacturers that produce food labeled "kosher," despite not 
being kosher from the perspective of the plaintiff, fail precisely because 
civil courts lack the authority to determine how Jewish law operates or whether 
a given food item is kosher under Jewish law. It certainly follows that courts 
lack the authority to determine the purpose underlying the laws of 
kashrut--say, perhaps, to promote hygiene--and then use that assumption to 
resolve related matters. Indeed, permitting a court to decide the why behind 
religious law is a greater intrusion into the religious sphere than permitting 
a court to decide the what.

That analysis applies no differently when discussing religious laws governing 
modesty, regardless of the popularity of those laws in civil society.

Meir Katz



Message: 1

Date: Sat, 4 Jun 2016 00:50:23 +

From: "Volokh, Eugene" <vol...@law.ucla.edu><mailto:vol...@law.ucla.edu>

To: Law & Religion issues for Law Academics

 <religionlaw@lists.ucla.edu><mailto:religionlaw@lists.ucla.edu>

Subject: Jewish law, women's bodies, and accommodations

Message-ID:

 
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Hillel Levin writes:







My primary opposition to the gender-segregated swim hours is not simply the 
formal segregation of the sexes and the practical burdens this may pose on 
people. Rather, it is that the Jewish laws relating to sexual modesty have 
embedded within them, and reinforce, certain assumptions and norms about 
women's and girls' bodies. I don't think the law should reflect, reinforce, or 
send those messages in public spaces.







Setting this aside as a basis for political opposition, are courts allowed to 
consider the underlying assumptions and norms that may be said to be embedded 
in religious laws?  Say that in town J, there are many Orthodox Jews, and many 
Orthodox women want single-sex swim hours because of Jewish laws that are based 
on, and ?reinforce? ?certain assumptions and norms about women?s and girls? 
bodies.?  Say that in town W, there are many Wiccan Goddess-worshippers, and 
many women who belong to that group want single-sex swim hours because they 
believe women should spend more time celebrating and improving their bodies 
free of male observation and the self-consciousness and body image problems 
that it brings.  And say that in town S, there are many secular people, and 
many women in that town like single-sex swim hours for the secular reasons 
given in the Livingwell case I mentioned before.







Could it be that courts might uphold the single-sex pool hours in town W and 
maybe town S, because the women?s preferences are based on good assumptions and 
norms about women?s bodied, but reject them in town J because the judges think 
that Jewish law is based on bad assumptions and preferences?







Eugene

RE: Jewish law, women's bodies, and accommodations

[Volokh, Eugene]

s. As a result, using the assumption to 
guide judicial decision-making would not merely improperly impose physical 
burdens on the religious adherents, it would also impose on them an alternative 
understanding as to what their religious laws actually mean. If the women (and 
men) who willingly subject themselves to religious modesty laws understand 
those laws as not as reinforcing norms and assumptions that are contrary to 
public policy (broadly defined), why should the contrary, and possibly 
unfounded, assumptions of a judge (or anyone) play any role at all in 
determining their entitlement to observe that law at state expense? And what 
authority does a civil judge have to tell them that their laws have some 
alternative purpose or function?

Similarly, false advertising and other claims against kosher certifying 
agencies and food manufacturers that produce food labeled "kosher," despite not 
being kosher from the perspective of the plaintiff, fail precisely because 
civil courts lack the authority to determine how Jewish law operates or whether 
a given food item is kosher under Jewish law. It certainly follows that courts 
lack the authority to determine the purpose underlying the laws of 
kashrut--say, perhaps, to promote hygiene--and then use that assumption to 
resolve related matters. Indeed, permitting a court to decide the why behind 
religious law is a greater intrusion into the religious sphere than permitting 
a court to decide the what.

That analysis applies no differently when discussing religious laws governing 
modesty, regardless of the popularity of those laws in civil society.

Meir Katz



Message: 1

Date: Sat, 4 Jun 2016 00:50:23 +

From: "Volokh, Eugene" <vol...@law.ucla.edu><mailto:vol...@law.ucla.edu>

To: Law & Religion issues for Law Academics

 <religionlaw@lists.ucla.edu><mailto:religionlaw@lists.ucla.edu>

Subject: Jewish law, women's bodies, and accommodations

Message-ID:

 
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Content-Type: text/plain; charset="utf-8"



Hillel Levin writes:







My primary opposition to the gender-segregated swim hours is not simply the 
formal segregation of the sexes and the practical burdens this may pose on 
people. Rather, it is that the Jewish laws relating to sexual modesty have 
embedded within them, and reinforce, certain assumptions and norms about 
women's and girls' bodies. I don't think the law should reflect, reinforce, or 
send those messages in public spaces.







Setting this aside as a basis for political opposition, are courts allowed to 
consider the underlying assumptions and norms that may be said to be embedded 
in religious laws?  Say that in town J, there are many Orthodox Jews, and many 
Orthodox women want single-sex swim hours because of Jewish laws that are based 
on, and ?reinforce? ?certain assumptions and norms about women?s and girls? 
bodies.?  Say that in town W, there are many Wiccan Goddess-worshippers, and 
many women who belong to that group want single-sex swim hours because they 
believe women should spend more time celebrating and improving their bodies 
free of male observation and the self-consciousness and body image problems 
that it brings.  And say that in town S, there are many secular people, and 
many women in that town like single-sex swim hours for the secular reasons 
given in the Livingwell case I mentioned before.







Could it be that courts might uphold the single-sex pool hours in town W and 
maybe town S, because the women?s preferences are based on good assumptions and 
norms about women?s bodied, but reject them in town J because the judges think 
that Jewish law is based on bad assumptions and preferences?







Eugene





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Jewish law, women's bodies, and accommodations

[Volokh, Eugene]

Hillel Levin writes:



My primary opposition to the gender-segregated swim hours is not simply the 
formal segregation of the sexes and the practical burdens this may pose on 
people. Rather, it is that the Jewish laws relating to sexual modesty have 
embedded within them, and reinforce, certain assumptions and norms about 
women's and girls' bodies. I don't think the law should reflect, reinforce, or 
send those messages in public spaces.



Setting this aside as a basis for political opposition, are courts allowed to 
consider the underlying assumptions and norms that may be said to be embedded 
in religious laws?  Say that in town J, there are many Orthodox Jews, and many 
Orthodox women want single-sex swim hours because of Jewish laws that are based 
on, and “reinforce” “certain assumptions and norms about women’s and girls’ 
bodies.”  Say that in town W, there are many Wiccan Goddess-worshippers, and 
many women who belong to that group want single-sex swim hours because they 
believe women should spend more time celebrating and improving their bodies 
free of male observation and the self-consciousness and body image problems 
that it brings.  And say that in town S, there are many secular people, and 
many women in that town like single-sex swim hours for the secular reasons 
given in the Livingwell case I mentioned before.



Could it be that courts might uphold the single-sex pool hours in town W and 
maybe town S, because the women’s preferences are based on good assumptions and 
norms about women’s bodied, but reject them in town J because the judges think 
that Jewish law is based on bad assumptions and preferences?



Eugene


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Same-sex programs and privacy concerns

[Volokh, Eugene]

ngWell locations. However, the 
Commission admits that there are other facilities just as convenient where men 
can exercise in a coed environment. Unlike gender discrimination that would 
result in the non-hiring of males, or where an exercise establishment has other 
facilities where business or "networking" is conducted, no harm exists to any 
male by being excluded from LivingWell's facilities

Do people think that this is a plausible interpretation of the bona fide 
qualification exception from state bans on discrimination in places of public 
accommodation (including private places)?  If so, do people think that this 
would likewise be a defense to an Equal Protection Clause claim, when the place 
is owned by the government?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Schwartzman, Micah 
Jacob (mjs4d)
Sent: Friday, June 03, 2016 8:27 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "Religious diversity" as a compelling interest for discrimination 
in universities?

Is the argument for this accommodation based on religious concerns about 
privacy/modesty limited to gender discrimination? Suppose a religious group 
believes that, for reasons of modesty, its members should only swim with 
coreligionists of the same sex. Could the city adopt a policy excluding (for a 
couple hours) everyone who isn't a member of that religion on the ground that 
it has a significant interest in promoting water safety? Or on the ground that 
it has a significant interest in providing access to public benefits for all 
taxpayers?

Or does exclusion based on religion, rather than gender, fail because it 
triggers strict (and not intermediate) scrutiny? Promoting water 
safety/taxpayer access is significant but not compelling?


On Jun 2, 2016, at 11:28 PM, Volokh, Eugene wrote:


   Again, I wonder whether sex-separate swimming really "screams 
inconsistent with every case on the books."  Consider, for instance, United 
States v. Virginia, where Justice Ginsburg's majority opinion stated that 
"Admitting women to VMI would undoubtedly require alterations necessary to 
afford members of each sex privacy from the other sex in living arrangements," 
n.19 - not just in bathrooms, I take it, but also in barracks / roommate 
arrangements and the like.  Indeed, the opinion left open the possibility that 
single-sex education may generally be constitutional (except when it denies 
women access to "unique" colleges such as VMI, so that the separateness is not 
equal), n.7.  Would we draw "an interesting parallel to racism" here, or would 
we conclude that sex is different enough from race, especially when it comes to 
"privacy"?  And, if so, why would accommodation of slightly different notions 
of sex-based privacy - such as those applicable to swimming rather than to 
"living arrangements" - necessarily be excluded?

   Eugene
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The Establishment Clause and facially religion-neutral religious accommodations

[Volokh, Eugene]

   I’m not sure that a single-sex-hours-at-pools policy is 
constitutional under the Equal Protection Clause, or would be constitutional 
even if it offered men-only swim hours as well as women-only.

   But the Establishment Clause argument is more complicated, I 
think.  Estate of Thornton v. Caldor involved a benefit that was only available 
to religious observers (as the Court pointed out); do we know that it also 
applies to programs that are facially religion-neutral, and that do indeed 
benefit nonobservers as well as observers, but are motivated in part by a 
desire to accommodate religion?

After all, some nonreligious women as well as religious women may appreciate a 
women-only swim time (though perhaps not as much as religious women).  Indeed, 
some women-only health clubs cater to women generally, without regard to 
religion; to quote the Livingwell case, which held that those health clubs 
don’t violate state sex discrimination bans, some women “have a legitimate 
privacy interest in exercising in a single sex club because exercising focuses 
upon aspects of their figures which they wish to improve.  While doing the 
exercises to reshape their figures, they expose parts of the body about which 
they are most sensitive, assume awkward and compromising positions, and move 
themselves in a way which would embarrass them if men were present.”  
Presumably some women who feel no religious objections to swimming around men 
would thus appreciate the pool’s women-only hours for such reasons as well.

Indeed, if a city decided to offer women-only hours (and, separately, men-only 
hours) at its swimming pool simply to accommodate women’s secular preferences 
for an environment relatively free of men looking at them (whether lustfully or 
judgmentally), that would pose no Establishment Clause problem at all, though 
it would still pose an Equal Protection Clause problem.  Does Thornton preclude 
the same program –open to all women without regard to religion – if the 
motivation was to accommodate some women’s religious concerns, rather than 
their secular concerns?  (Recall that Thornton was not decided under the 
“religious purpose” prong of Lemon, and that Amos made clear that accommodating 
religion is not itself an impermissible religious purpose.)

One last item, assuming Thornton is relevant:  I agree that, while religious 
women’s felt inability to use a mixed-sex pool is a burden, it’s not a vast 
burden, because it’s just one form of recreation that they might want to use.  
Should that be relevant, though, to the “undue burden on third parties” prong 
of Thornton as well, if that analysis applies to facially religion-neutral 
accommodations?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, June 03, 2016 7:21 AM
To: Law & Religion issues for Law Academics 
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

I agree that accommodations of a religious group re: a public benefit -- e.g., 
Eugene's example of a girls' basketball team that wants to wear more modest 
uniforms -- are not per se impermissible.  If they help the group participate, 
and cause no harm, we should applaud them.

But the swimming pool case is all about harm, and as framed in NYC, it is about 
harm to men only, because there are no male only swimming hours.  I responded 
first to Marty, and said this was not permissible because of that harm.  I did 
not separate Equal Protection norms from Establishment Clause norms when I 
wrote that, and there is a deeper question lurking in that move.  Equal 
protection claims can be defeated by showing that the classification is 
substantially related to important interests.  There is a balancing methodology 
there, tilted against the state, with a still more state-limiting caveat that 
sex classifications must not reinforce over broad generalizations and 
stereotypes about sex roles.  The NYC accommodation certainly seems to 
reinforce such generalizations about female demands for modesty.

Compare Establishment Clause norms re: third party harms.  Here, we have much 
less law to go on, but we do have Estate of Thornton v. Caldor and its holding 
that accommodations of the religious practices (Sabbath observance) of some 
employees cannot be allowed to work absolute impositions on the needs of others 
(employers and other employees).  Is that a balancing test?  If it is, how does 
a court balance religious needs against the competing secular harms? Or is it 
NOT a balancing test at all, as some list members and others have suggested 
(i.e., religious accommodations are unconstitutional if they work 
material/significant/meaningful harm to 3rd parties)?

If you were litigating this on behalf of challengers to the NYC policy, you 
would of course raise both Equal Protection and Establishment Clause 
challenges.  Which would be 

RE: "Religious diversity" as a compelling interest for discrimination in universities?

[Volokh, Eugene]

   Again, I wonder whether sex-separate swimming really “screams 
inconsistent with every case on the books.”  Consider, for instance, United 
States v. Virginia, where Justice Ginsburg’s majority opinion stated that 
“Admitting women to VMI would undoubtedly require alterations necessary to 
afford members of each sex privacy from the other sex in living arrangements,” 
n.19 – not just in bathrooms, I take it, but also in barracks / roommate 
arrangements and the like.  Indeed, the opinion left open the possibility that 
single-sex education may generally be constitutional (except when it denies 
women access to “unique” colleges such as VMI, so that the separateness is not 
equal), n.7.  Would we draw “an interesting parallel to racism” here, or would 
we conclude that sex is different enough from race, especially when it comes to 
“privacy”?  And, if so, why would accommodation of slightly different notions 
of sex-based privacy – such as those applicable to swimming rather than to 
“living arrangements” – necessarily be excluded?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 8:17 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: "Religious diversity" as a compelling interest for discrimination 
in universities?

More than fair;  I think I more meant the pool context than the university 
context.

Separately, this is an interesting parallel to racism.  The Court correctly 
determined with respect to race that separate but equal is awful.  In the 
religious context, for some faiths, can separation be what they prefer, even in 
places that are government-run?

A religious idea that women in certain faiths get "equal protection" when they 
swim separately screams inconsistent with every case on the books (except 
Korematsu, sadly), but in the area of religious diversity, isn't the state to 
be admired for encouraging the expression of beliefs different than the 
consensus?  The state couldn't impose that belief, to be sure, but isn't it to 
be admired for it?

On Thu, Jun 2, 2016 at 9:08 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   So that universities could give admission preferences to, say, 
evangelical Christians, if they conclude that they are underrepresented among 
students or on the faculty?  To the more devout of all faiths, if it thinks 
they are underrepresented?  I think race-based admissions preferences (the 
programs which are most often defended using “racial diversity” arguments) are 
troublesome enough; religion-based preferences strike me as even worse.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 6:01 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

It is one thing to say religious minorities have no right to shape the law so 
public facilities match their religious sentiments.  It is another thing to 
suggest that our constitution requires public facilities to not serve religious 
minorities.

Is not encouraging religious diversity a compelling interest, under the equal 
protection clause, just like encouraging racial diversity is for law schools?

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--
Michael Worley
J.D., Brigham Young University
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"Religious diversity" as a compelling interest for discrimination in universities?

[Volokh, Eugene]

   So that universities could give admission preferences to, say, 
evangelical Christians, if they conclude that they are underrepresented among 
students or on the faculty?  To the more devout of all faiths, if it thinks 
they are underrepresented?  I think race-based admissions preferences (the 
programs which are most often defended using “racial diversity” arguments) are 
troublesome enough; religion-based preferences strike me as even worse.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Thursday, June 02, 2016 6:01 PM
To: Law & Religion issues for Law Academics 
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

It is one thing to say religious minorities have no right to shape the law so 
public facilities match their religious sentiments.  It is another thing to 
suggest that our constitution requires public facilities to not serve religious 
minorities.

Is not encouraging religious diversity a compelling interest, under the equal 
protection clause, just like encouraging racial diversity is for law schools?
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RE: thoughts on constitutionality of single-sex hours for public pool?

[Volokh, Eugene]

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

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

   Eugene



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

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

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

Sent from my iPhone

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

On Thursday, June 2, 2016, Volokh, Eugene 
<vol...@law.ucla.edu<javascript:_e(%7B%7D,'cvml','vol...@law.ucla.edu');>> 
wrote:
   I think Prof. Finkelman and I might be talking past each other 
here, but I’d love to hear what others think.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrari

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

[Volokh, Eugene]

   There are three issues here, I think.  One is whether this is 
properly seen as a form of religious accommodation; I think Alan is quite right 
that it is.  Just to give an example, say that a city-run basketball league at 
a city-run rec center had a uniform that some religious women found immodest, 
and the city gave them an exemption allowing them to wear, say, skirts instead 
of shorts.  I think we'd rightly view this as an accommodation (whether or not 
constitutionally or statutorily mandated), even though no one has to play 
basketball in the city-run league.

   A second is whether, even apart from a desire for religious 
accommodation, a city is constitutionally allowed - despite the Equal 
Protection Clause - to have women-only hours at the swimming pool, for the 
benefit of women from cultural groups whose sense of modesty is different from 
the national majority's.  (There's a separate question of whether the city 
would also have to have matching men-only hours as well.)

The theory here would be that we have single-sex rules to accommodate the 
majority's modesty concerns (in shower rooms, dressing rooms, and the like), 
and that it's constitutionally permissible to have slightly broader single-sex 
rules to accommodate a cultural minority group's modesty concerns.  (Indeed, 
one interesting case on the subject - though perhaps involving not just modesty 
concerns but body image concerns - was a Pennsylvania public accommodations law 
case from 1991 involving a private women-only health club, didn't involve 
religious accommodations at all, but rather a health club that catered to some 
women's preference for working out without men present.)

   The third issue is whether, if single-sex hours at pools are 
presumptively unconstitutional under the Equal Protection Clause - and, again, 
we'd need to decide whether they are - that presumption can be rebutted by the 
interest in accommodating religious groups.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Thursday, June 02, 2016 6:19 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

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

Sent from my iPhone

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

On Thursday, June 2, 2016, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   I think Prof. Finkelman and I might be talking past each other 
here, but I'd love to hear what others think.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>
 
[mailto:religionlaw-boun...@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>]
 On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrarily closed to only allow one 
sex to use any dressing ro

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

[Volokh, Eugene]

   I think Prof. Finkelman and I might be talking past each other 
here, but I’d love to hear what others think.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrarily closed to only allow one 
sex to use any dressing room.

Eugene, I actually doubt there are any people on this list (or very many on law 
faculties) or in the US who would think that single sex dressing rooms are 
unconstitutional.  So why raise the analogy.

The issue here is whether you deny access because a religious group demand its; 
given the racial arguments of many religious groups (going back to proslavery 
religious thought and going to Bob Jones University and beyond) it is not 
impossible to imagine a single race religious argument.  Some religious groups 
have been making them for 150 years or more. (If you want examples of early 
versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old 
South).  So, it is not impossible or implausible to make the analogy here.

I don't see what the accommodation is.  IF you have a university of high school 
that requires a swimming test to graduate (I knew someone who almost did not 
graduate from college because she could not pass the swimming test, in 1968), 
then there might be an accommodation issue.  But, short of a requirement that 
people go swimming in the public pool, what is the accommodation here?

Anyone can use the pool any time; anyone can choose not to use the pool any 
time.   No one is required to use the pool ever. What is the accommodation 
issue?


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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____
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, June 2, 2016 7:45 PM
Subject: RE: thoughts on constitutionality of single-sex hours for public pool?

   I’m not at all sure that this form of sex classification is 
constitutional.  But, as is often the case with analogies between single-sex 
and single-race, I don’t think the simple sex/race analogy is helpful here.

   I take it that few of us would think that single-sex dressing 
rooms are “about as constitutional as single race dressing rooms.”  The 
government can legitimately accommodate some sorts of privacy/modesty concerns, 
at least when it comes to people seeing each other in a state of undress or 
near-undress.  Then-Professor Ginsburg so wrote in the 1970s in response to 
criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia; 
many courts have even said that denial of such privacy (e.g., in prisons, where 
prisoners are searched by guards of the opposite sex) is a constitutional 
violation.  Perhaps Justice Ginsburg is tantamount to a racial segregationist, 
but I doubt it.

   Of course, the exposure of one’s body at a swimming pool isn’t 
the same as the exposure in a shower or even in a changing room; we know that 
precisely because our culture generally has mixed-sex swimming pools but 
single-sex changing rooms.  But some cultures, especially some 
religiously-linked cultures, draw the privacy/modesty line in a somewhat 
different place – not a vastly different place, but a significantly different 
place.  The question is to what extent government actors (and, under public 
accommodation laws, private institutions) may accommodate that differently 
placed line.  Categorically equating sex classifications with race 
classifications, I think, doesn’t really help us answer that question.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 2, 2016 4:03 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

This seems about as constitutional as single race swimming pools.

I appreciate the desire of Ultra Orth

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

[Volokh, Eugene]

   I’m not at all sure that this form of sex classification is 
constitutional.  But, as is often the case with analogies between single-sex 
and single-race, I don’t think the simple sex/race analogy is helpful here.

   I take it that few of us would think that single-sex dressing 
rooms are “about as constitutional as single race dressing rooms.”  The 
government can legitimately accommodate some sorts of privacy/modesty concerns, 
at least when it comes to people seeing each other in a state of undress or 
near-undress.  Then-Professor Ginsburg so wrote in the 1970s in response to 
criticism of the ERA; Justice Ginsburg so noted in United States v. Virginia; 
many courts have even said that denial of such privacy (e.g., in prisons, where 
prisoners are searched by guards of the opposite sex) is a constitutional 
violation.  Perhaps Justice Ginsburg is tantamount to a racial segregationist, 
but I doubt it.

   Of course, the exposure of one’s body at a swimming pool isn’t 
the same as the exposure in a shower or even in a changing room; we know that 
precisely because our culture generally has mixed-sex swimming pools but 
single-sex changing rooms.  But some cultures, especially some 
religiously-linked cultures, draw the privacy/modesty line in a somewhat 
different place – not a vastly different place, but a significantly different 
place.  The question is to what extent government actors (and, under public 
accommodation laws, private institutions) may accommodate that differently 
placed line.  Categorically equating sex classifications with race 
classifications, I think, doesn’t really help us answer that question.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 2, 2016 4:03 PM
To: Law & Religion issues for Law Academics 
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

This seems about as constitutional as single race swimming pools.

I appreciate the desire of Ultra Orthodox Jews to live the life they want to 
life. That is what the Constitution protects.  But it also protects the rights 
of everyone else to live their lives.  That has to mean equal access to all 
pools.

There is also an interesting glitch.  Some of my Orthodox male relatives and 
friends are uncomfortable around women in  "immodest" dress are swimming pools. 
 So they might need single sex pools as well.

Then there are all sorts of transgender issues, too complicated to imagine.

**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com
c) 518.605.0296

and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program

University of Pennsylvania





Call
Send SMS
Call from mobile
Add to Skype
You'll need Skype CreditFree via Skype



From: Marty Lederman >
To: Law & Religion issues for Law Academics 
>
Sent: Thursday, June 2, 2016 6:18 PM
Subject: thoughts on constitutionality of single-sex hours for public pool?

permissible accommodation?

http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html

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RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

But it’s not meant to supplement 
salary; rather, it’s intended to provide some minimum standard of living,

I mean, if you really want to, you can argue that it economically functions to 
allow employers to underpay their employees. But in that regard, the EITC 
doesn’t function any differently than Medicaid and TANF and Section 8 vouchers 
and any other welfare program.



On Sun, May 8, 2016 at 9:24 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Well, let’s test that principle against paying the salaries of 
clergy in private faith communities, when it comes to an equal-treatment 
system.  I posted about this in January, but I don’t think there were any 
reactions to it:

It turns out that the government actually does offer salary supplements for 
ministers, alongside other employees who earn under a threshold amount, via the 
Earned Income Tax Credit.  For instance, if a minister is a head of household, 
has two children, and earns $20,000 (think some assistant pastor, perhaps 
part-time, at some poor church), he will get a substantial net payment from the 
government.  That's taxpayer money going to subsidize ministers (again, 
alongside the other earners in the same boat).  Does this violate the 
Establishment Clause, on the grounds that the government is paying part of a 
clergy member’s salary?
   Note that this isn't a program that's available to everyone, the 
way police or fire protection is: it's only available to a minority of 
taxpayers.  Unconstitutional?

   As to the possibility of sect discrimination in Trinity 
Lutheran, it seems extremely remote to me – as we’ve discussed on the list, the 
program there (like the Earned Income Tax Credit) relies on objective factors.

   Eugene

Chip Lupu writes:

Equality cannot be the only prism for measuring Religion Clause norms.  
Non-establishment does at times mandate different treatment -- favorable to 
religion in the context of the ministerial exception, and unfavorable in the 
context of public school sponsored speech.  A public school may sponsor a 
morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, 
the Lord's Prayer, etc.

Whether government funding should be seen the same way as state sponsored 
speech is a question, and "equal treatment is not establishment" cannot be the 
simple answer.  We have a deep and abiding constitutional principle that the 
government may not pay to build houses of worship or to pay the salaries of 
clergy in private faith communities.  So if a state sets up a direct funding 
program to help build structures for valuable community institutions, 
longstanding principles would say the program can help pay to build an art 
museum or musical venue, but cannot offer money to build a church, mosque, or 
synagogue.

I understand that we can always debate whether to maintain that settlement.  
And the Trinity Lutheran Church case, involving grants for safe surfaces in 
playgrounds, hardly tests the core of it -- rather, it tests whether the states 
can expand the periphery of that no funding principle.  The rationale for the 
principle -- fear of sect discrimination; fear of government control over the 
subsidized church; fear over politicization of the church's teachings so as to 
curry favor with appropriators; fear of rivalry among sects for public 
resources -- may or may not be implicated in a given case.  The grant system 
for safe surfaces in playgrounds in Missouri at least touches on the 
possibility of sect discrimination -- would mosques be treated equally with 
popular Protestant denominations?  If we fear otherwise, should we have a 
prophylactic anti-funding rule, or just closely monitor for sect 
discrimination? These are subtle questions, not answered adequately by claims 
for formal equality.

___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

   Well, let’s test that principle against paying the salaries of 
clergy in private faith communities, when it comes to an equal-treatment 
system.  I posted about this in January, but I don’t think there were any 
reactions to it:

It turns out that the government actually does offer salary supplements for 
ministers, alongside other employees who earn under a threshold amount, via the 
Earned Income Tax Credit.  For instance, if a minister is a head of household, 
has two children, and earns $20,000 (think some assistant pastor, perhaps 
part-time, at some poor church), he will get a substantial net payment from the 
government.  That's taxpayer money going to subsidize ministers (again, 
alongside the other earners in the same boat).  Does this violate the 
Establishment Clause, on the grounds that the government is paying part of a 
clergy member’s salary?
   Note that this isn't a program that's available to everyone, the 
way police or fire protection is: it's only available to a minority of 
taxpayers.  Unconstitutional?

   As to the possibility of sect discrimination in Trinity 
Lutheran, it seems extremely remote to me – as we’ve discussed on the list, the 
program there (like the Earned Income Tax Credit) relies on objective factors.

   Eugene

Chip Lupu writes:

Equality cannot be the only prism for measuring Religion Clause norms.  
Non-establishment does at times mandate different treatment -- favorable to 
religion in the context of the ministerial exception, and unfavorable in the 
context of public school sponsored speech.  A public school may sponsor a 
morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, 
the Lord's Prayer, etc.

Whether government funding should be seen the same way as state sponsored 
speech is a question, and "equal treatment is not establishment" cannot be the 
simple answer.  We have a deep and abiding constitutional principle that the 
government may not pay to build houses of worship or to pay the salaries of 
clergy in private faith communities.  So if a state sets up a direct funding 
program to help build structures for valuable community institutions, 
longstanding principles would say the program can help pay to build an art 
museum or musical venue, but cannot offer money to build a church, mosque, or 
synagogue.

I understand that we can always debate whether to maintain that settlement.  
And the Trinity Lutheran Church case, involving grants for safe surfaces in 
playgrounds, hardly tests the core of it -- rather, it tests whether the states 
can expand the periphery of that no funding principle.  The rationale for the 
principle -- fear of sect discrimination; fear of government control over the 
subsidized church; fear over politicization of the church's teachings so as to 
curry favor with appropriators; fear of rivalry among sects for public 
resources -- may or may not be implicated in a given case.  The grant system 
for safe surfaces in playgrounds in Missouri at least touches on the 
possibility of sect discrimination -- would mosques be treated equally with 
popular Protestant denominations?  If we fear otherwise, should we have a 
prophylactic anti-funding rule, or just closely monitor for sect 
discrimination? These are subtle questions, not answered adequately by claims 
for formal equality.
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Hobby Lobby dissent

[Volokh, Eugene]

I was just rereading the principal Hobby Lobby dissent, and was struck again by 
this passage:

There is an overriding interest, I believe, in keeping the courts "out of the 
business of evaluating the relative merits of differing religious claims," Lee, 
455 U.S., at 263, n. 2, 102 S.Ct. 1051 (Stevens, J., concurring in judgment), 
or the sincerity with which an asserted religious belief is held. Indeed, 
approving some religious claims while deeming others unworthy of accommodation 
could be "perceived as favoring one religion over another," the very "risk the 
Establishment Clause was designed to preclude."

How can this be reconciled, though, with Justice Ginsburg's and Justice 
Breyer's (and Justice Stevens') votes in O Centro, or Justice Ginsburg's, 
Breyer's, Sotomayor's, and Kagan's votes in Holt v. Hobbs?  After all, all RFRA 
claims require judgments about "the sincerity with which an asserted religious 
belief is held."  And all cases "approv[e] some religious claims" - e.g., about 
hoasca or about short beards - while deeming others (e.g., related to marijuana 
or long hair) "unworthy of accommodation."  Indeed, Justice Stevens' argument 
in Lee was for abandoning religious exemptions altogether, except perhaps in 
Sherbert-like "individualized exemptions" cases.  If one accepts it, wouldn't 
the same argument counsel in favor of rejecting the exemptions in cases like O 
Centro and Holt?  (I realize that many of Justice Ginsburg's other arguments 
are limited to Hobby Lobby, but here I just focus on this one.)

Eugene
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RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

Here’s how I understand the state of play with regard to 
discrimination in favor of and against religious institutions and beliefs.

1.  When it comes to government spending, the Court has already 
generally taken the view that religious institutions can’t get special 
benefits.  See Texas Monthly v. Bullock and the implications of the old funding 
cases, even as modified by Mitchell and Zelman.  The question in Trinity 
Lutheran is where we should move more towards equal treatment – no special 
money for religious institutions, but no special exclusion from generally 
available money (subject to Locke) – or have a rule in which discrimination in 
favor of religious institutions in funding is forbidden, but discrimination 
against them is allowed.

2.  When it comes to direct regulation, the law is already 
pretty clear.  The government may not discriminate against religious practices 
and institutions, see Lukumi; I don’t think anyone is challenging that in 
Trinity.  But the government may (in some instances) exempt only religious 
practices and institutions, see Yoder; Frazee; Cutter, and in a few situations 
must exempt religious practices and institutions, even if it doesn’t exempt 
similar secular ones, see Hosanna-Tabor and what remains of Yoder and Frazee.  
I’m not sure this is right; perhaps the rule should be mandatory equal 
treatment when it comes to regulation and exemption, as Harlan argued in Welsh 
and as Stevens argued in Boerne.  But the rule we have is pretty well settled.

It may be theoretically possible that this clear state of the 
law in item 2 will somehow be undermined by equal treatment for religious 
institutions in item 1.  But I don’t see that as especially likely – and I thus 
don’t see why it makes sense for religious institutions to give up the 
opportunity for equal treatment with regard to funding, on the hope that 
somehow this will preserve favorable treatment with regard to exemptions.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, May 05, 2016 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal 
protection" to all when it comes to use?

As I understood Michael's observation, it was that the topside briefs in 
Trinity Lutheran argue at great length that churches, as such, can virtually 
never be disfavored vis-a-vis similarly situated secular institutions, under 
both the Free Exercise and Equal Protection Clauses -- whereas the writers of 
those briefs would, of course, strongly argue that a legislature generally can, 
and sometimes must, treat churches more favorably than such secular 
institutions.  His fear, as I understood it (but perhaps I misunderstood him), 
was that the emphasis on formal equality in the briefs might prompt the Court 
to settle upon a holding closer to strict formal equality than it has ever 
previously announced -- which could be damaging to claims for permissive 
accommodations (akin to the fears raised by the "HHS can't favor churches" 
argument of the petitioners in Zubik).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-<mailto:religionlaw->
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Michael 
> Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.ed

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> Subject: Trinity Lutheran Church - will churches have to extend "equal
> protection" to all when it comes to use?
> 
> In reading the briefs on the Trinity Lutheran Church case, I see a lot of 
> reference
> to churches being denied "equal protection" when state laws specifically 
> prohibit
> them from participating in otherwise neutral state aid programs that are
> available to other civic institutions. Yet churches often vigorously argue 
> that
> they are exempt from "equal protection" when it comes to access to their
> facilities.
> 
> But in turn, let's say that Trinity wins the case - does that mean that 
> churches
> that receive the funding could be subject to discrimination claims brought by
> citizens who are prohibited from accessing the infrastructure, or are
> discriminated against while on the infrastructure, because the church teaches
> against their protected class (i.e. religion, gender, sexual orientation, 
> etc.)?
> 
> I'm thinking that churches that argue for equal protection when it comes to
> compelling state funding of their institutions, and claim that they should be 
> on
> an equal footing when it comes to similar secular civic organizations, should
> recognize that civic organizations are also held to a higher standard when it
> comes to discrimination claims.
> 
> Churches that receive funding and simultaneously seek to reserve the right to
> discriminate should expect that they will be held to the same 
> non-discrimination
> standards as other civic organizations as a condition of receiving such 
> funding
> and that they will need to take "equal protection" into account when it comes 
> to
> people and other organizations which seek to access and use churches' state-
> funded infrastructure.
> 
> Put simply, could Trinity Lutheran Church be a Trojan Horse?
> 
> I would be interested in your thoughts.
> 
> Michael Peabody, Esq.
> ReligiousLiberty.TV
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RE: speech and religion hypothetical

[Volokh, Eugene]

   No and no.  A content-neutral restriction forbidding the 
disruption of speakers who have been invited by a group that has booked a room, 
and thus gotten exclusive access to the room for that time, is certainly 
constitutional.  And religious speakers are no more and no less protected here.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Thursday, April 21, 2016 9:41 PM
To: Law & Religion issues for Law Academics 
Subject: speech and religion hypothetical


I recognize this hypothetical, based very indirectly on a real incident, is 
more speech than religion, but I hope Eugene will allow my post to go forward 
in any case.



Suppose a LGBT student group at a public university invites a guest speaker to 
present a scheduled lecture in a university classroom. The campus 
administration allows student groups to invite speakers and to sign up to use 
campus facilities with few restrictions.  It is a common practice. A group of 
religious students strongly opposed to the speaker's message disrupt the 
speaker's presentation after it has begun. They commandeer the front of the 
room and chant anti-LGBT messages for 3 - 4 minutes. Then they leave. 
(Alternatively, we can reverse the facts and have  the presentation of a 
religious speaker invited by a religious group of students disrupted by gay 
rights proponents to a similar extent.)



I have two questions for list members.



1. Is the conduct of the protestors protected by the Free Speech Clause of the 
First Amendment? Does the First Amendment prevent the university from 
prohibiting this kind of protest through content neutral time, place and manner 
regulations and from punishing the protestors' conduct if the regulations are 
disobeyed? (If you think that this is or is not protected speech, are there 
particular cases you rely on to support this conclusion?)



2. Does the answer to the first question change in any way because religious 
speakers, protestors, and messages are involved in these incidents.



Alan Brownstein








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RE: questions re zubik oral argument

[Volokh, Eugene]

Mary Anne Case asked:



1) Why does everyone on the Court seem so blithely to agree with Paul Clement 
that for the government to take over a room in the Little Sisters' facility to 
operate a Title X clinic, even if they paid market price for the room, would of 
course be impermissible?  Couldn't such a government action be seen as a taking 
for public use with just compensation?  Are RFRA and/or RLUIPA thought more 
generally to protect religiously motivated property owners from what would 
otherwise be permissible takings?  If so, are there cases? And specifically 
with respect to access to contraception, might it not sometimes be the less 
restrictive alternative for a government, for example, to use eminent domain to 
take over space in, for example, a Catholic health care facility, in which 
medical goods and services which the facility objects to providing might be 
made available?



2) When Roberts says, "Well, the way constitutional objections work is you 
might have to change current law,"  why is the response merely "laughter" 
rather than the observation that a RFRA objection is not a constitutional 
objection?


Two quick reactions:

1.  I think that RFRA may well protect religiously motivated property owners 
from what would otherwise be permissible takings.  Indeed, one of the few 
Sherbert/Yoder-era appellate court victories (however tentative) for a 
religious exemption claim was Pillar of Fire v. Denver Urban Renewal Authority, 
509 P.2d 1250 (Colo. 1973), which held that a church might be able to prevail 
under the Free Exercise Clause in its challenge to a government action 
condemning the church that formed the birthplace of plaintiff's religious 
denomination.  I recognize, though, that this sort of claim (our property is of 
special religious significance to us) may be different, for substantial burden 
purposes, from the claim contemplated by the question (we don't want our 
property used for sinful purposes, even if it's taken by the government).

2.  Zubik, like other RFRA cases, are - at least ostensibly - about 
implementing Congress's will, including its will in enacting RFRA.  But 
Congress, when it enacted RFRA, expressly took the view that religious 
accommodation claims should be treated as akin to constitutional objections 
(since it disagreed with the majority opinion in Smith).  So "the way 
constitutional objections work is you might have to change current law" was 
likely intended (and understood) as shorthand for (a) the way constitutional 
objections work is that you might have to change current law, (b) Congress 
meant to incorporate a constitutional-objection way of thinking into RFRA, and 
(c) RFRA objections thus work the same way.

Eugene


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A follow-up to our transgender rights / religious freedom discussion

[Volokh, Eugene]

   Howard Friedman notes a case in which a female prison inmate 
argued that her religious freedom rights were violated because she was patted 
down by a male prison guard.  (The inmate is a devout Muslim.)  The claim is 
likely to progress under RFRA.

(1)  Should such a claim prevail, so long as there’s no evidence that the 
accommodation would materially undermine prison security?

(2)  Say that the prison guard was biologically male, but viewed himself or 
herself (as you prefer) as female.  But the inmate viewed the guard as male, 
because she interpreted her religion’s ban on contact between unmarried adult 
males and females as turning on the other person’s biological sex, not the 
other person’s self-perception.  Should the accommodation request then be 
rejected?

Eugene

Feed: Religion Clause
Posted on: Sunday, April 10, 2016 10:17 AM
Author: Howard Friedman
Subject: 2 Particularly Interesting Prisoner Free Exercise Cases

... In Brown v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 44755 (D CT, March 31, 
2016), a Connecticut federal district court dismissed a female federal 
prisoner's 1st Amendment claim, but allowed her to move ahead on her claim 
under RFRA that her rights were infringed when she was searched by a male 
correctional officer.  This suit is unusual because it was filed by a female 
inmate.  For reasons I have been unable to explain, almost all reported 
prisoner free exercise cases are filed by male inmates.  Perhaps it is related 
to differences in the way that women's prisons are administered.  If readers 
have other explanations, I would appreciate receiving them
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Common changing rooms, shower rooms, transgender men and women, privacy, and religion

[Volokh, Eugene]

   A quick question (or rather a set of closely related questions), 
with apologies in case it's already been covered:

   1.  Let's set aside the question of restrooms with individual 
stalls, and focus on common changing rooms - in gyms, high schools, and the 
like - and shower rooms.  Am I right that there are plenty of such spaces still 
around in which people would commonly see each other naked or near naked?  
(It's been a while since I've been in a gym, sorry to say.)

   2.  Am I right that the transgender rights movement would 
generally require such places to let self-identified transgender women use the 
women's spaces, even if the women appear physically male?

   3.  Some cases suggest that there is a constitutional right to 
privacy that generally protects people from government action that requires 
them to be seen naked or perhaps even near-naked by the opposite sex.  (This 
arises at times in prisons, for instance.)  Would such a right be trumped by 
the interest in treating transgender people the same as the sex with which they 
identify?  Or is it the theory that the constitutional right protects women 
from being required to be seen naked by self-identified men, and doesn't 
protect women from being required to be seen naked by people who are 
physiologically male but view themselves as female?

   4.  My understanding is that members of some religious groups - 
conservative Muslims, likely many conservative Christians, likely many 
conservative or Orthodox Jews - also feel a religious obligation not to be seen 
naked or near-naked by the opposite sex (setting aside the usual exceptions: 
spouses, doctors in emergency situations, and the like).  And I assume that, 
for purposes of deciding what counts as "the opposite sex," these people focus 
on physiological sex, not on the other person's view of him- or herself.  What 
may the government do, and what should the government do, to accommodate such 
preferences?

   A concrete hypothetical:  A Muslim woman has been using a gym 
(whether private or public), and has been changing and showering there.  Now 
state or local law requires the gym to let people who are physiologically male 
but identify as female use the changing and shower rooms in all such gyms.  The 
woman now concludes that, because of this law, she is unable to use such gyms 
(or perhaps can only use such gyms until the first such person arrives there, 
at which point she needs to switch).  Is there anything that the state can or 
should do to accommodate her and others like her?

   Eugene
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School changes yoga class to not include certain elements

[Volokh, Eugene]

   I wonder whether my colleagues at the Post may have been 
imprecise with the word "banned."  As best I can tell, the school is simply 
deciding what to include as part of its own class:



Among the elements of the program that will be eliminated: the Sanskrit 
greeting "Namaste," placing hands "to heart center" and coloring pages with the 
symbol of the Mandala (a spiritual symbol in Indian religions representing the 
cosmos).



   I'm not sure how I would have chosen to have a yoga class be 
taught, if the choice were up to me; but such decisions about the content of 
the curriculum strike me as different from "bann[ing]" "namaste and yoga."



   Eugene





> -Original Message-

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

> boun...@lists.ucla.edu] On Behalf Of Steven Jamar

> Sent: Friday, March 25, 2016 12:35 PM

> To: Law & Religion issues for Law Academics 

> Subject: namaste and yoga banned

>

> https://www.washingtonpost.com/news/morning-mix/wp/2016/03/24/ga-

> parents-offended-by-the-far-east-religion-of-yoga-get-namaste-banned-from-

> school/

>

> --

> Prof. Steven D. Jamar

> Assoc. Dir. of International Programs

> Institute for Intellectual Property and Social Justice http://iipsj.org

> http://sdjlaw.org

>

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

>

> William Blake

>

> ___

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> Religionlaw@lists.ucla.edu To subscribe, 
> unsubscribe,

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>

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RE: In re Tam and CLS

[Volokh, Eugene]

   How I am ignoring the other statements?  CLS v. Martinez is 
internally quite consistent; it reasons:

   1.  The registered student organization program is a limited 
public forum, because it provides a form of subsidy to the groups who 
participate in the program.

   2.  In such a limited public forum, the government may impose 
reasonable, viewpoint-neutral restrictions, but not viewpoint-based ones.

   3.  The requirement that student groups take all comers is a 
viewpoint-neutral – indeed a content-neutral restrictions.

   4.  Indeed, the program leaves student groups free to “express 
any viewpoint they wish – including a discriminatory one,” which protects “the 
freedom to express ‘the thought that we hate.’”

   If CLS is viewed as applicable here – if trademark law is viewed 
as a limited-public-forum-like subsidy – then it would follow that the 
exclusion of “disparaging” marks, if it’s seen as viewpoint-based (and I think 
it should be), is unconstitutional.

   Now of course some may say that CLS shouldn’t apply.  The In re 
Tam en banc majority concludes that the trademark system shouldn’t be viewed as 
a limited public forum, but that the disparaging mark exclusion should be 
viewed as more akin to a direct regulation of speech, and that strict scrutiny 
should apply instead.  Others conclude that the trademark system shouldn’t be 
viewed as a limited public forum, but that the government should be entitled to 
choose which trademarks it will support, even in a viewpoint-based way.  But if 
CLS applies, then it bars viewpoint-discriminatory conditions on trademark 
registration, rather than empowering to freely decide which speech to “subvent.”

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 19, 2016 7:29 AM
To: Law Religion & Law List <religionlaw@lists.ucla.edu>
Subject: Re: In re Tam and CLS

I think CLS has something for everyone on this case.  We just cannot really 
predict with confidence what tack the Court will take.  I agree that the court 
could decide that disparagement is the sort of viewpoint regulation that it 
said was not at stake in CLS.  But you cannot ignore all the other statements 
and reasoning of the court and think that just one aspect will surely control.

Steve

On Mar 19, 2016, at 10:04 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   If CLS is applicable, it would actually cut the other way.  The 
rationale of the court’s decision is that, though the government must be 
viewpoint-neutral in funding student groups, a requirement that groups take all 
comers is actually content-neutral:  “It does not reflect a judgment by school 
officials about the substance of any student group's speech. Nor does it 
exclude any would-be groups on the basis of their convictions. Indeed, it does 
not regulate expression or belief at all. The policy is ‘directed at the 
organization's activities rather than its philosophy.’”

“Although registered student groups must conform their conduct to the Law 
School's regulation by dropping access barriers, they may express any viewpoint 
they wish—including a discriminatory one. Cf. Rumsfeld v. Forum for Academic 
and Institutional Rights, Inc., 547 U.S. 47, 60 (2006) (‘As a general matter, 
the Solomon Amendment regulates conduct, not speech. It affects what law 
schools must do— afford equal access to military recruiters—not what they may 
or may not say.’). Today's decision thus continues this Court's tradition of 
"protect[ing] the freedom to express ‘the thought that we hate.'”  And of 
course the opinion is stressing here that even registered student groups, which 
is to say groups that get “what is effectively a state subsidy,” must be free 
from viewpoint discrimination.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 19, 2016 4:27 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: In re Tam and CLS

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

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

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

And how often does anyone get to use t

RE: In re Tam and CLS

[Volokh, Eugene]

   If CLS is applicable, it would actually cut the other way.  The 
rationale of the court’s decision is that, though the government must be 
viewpoint-neutral in funding student groups, a requirement that groups take all 
comers is actually content-neutral:  “It does not reflect a judgment by school 
officials about the substance of any student group's speech. Nor does it 
exclude any would-be groups on the basis of their convictions. Indeed, it does 
not regulate expression or belief at all. The policy is ‘directed at the 
organization's activities rather than its philosophy.’”

“Although registered student groups must conform their conduct to the Law 
School's regulation by dropping access barriers, they may express any viewpoint 
they wish—including a discriminatory one. Cf. Rumsfeld v. Forum for Academic 
and Institutional Rights, Inc., 547 U.S. 47, 60 (2006) (‘As a general matter, 
the Solomon Amendment regulates conduct, not speech. It affects what law 
schools must do— afford equal access to military recruiters—not what they may 
or may not say.’). Today's decision thus continues this Court's tradition of 
"protect[ing] the freedom to express ‘the thought that we hate.'”  And of 
course the opinion is stressing here that even registered student groups, which 
is to say groups that get “what is effectively a state subsidy,” must be free 
from viewpoint discrimination.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 19, 2016 4:27 AM
To: Law & Religion issues for Law Academics 
Subject: In re Tam and CLS

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

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

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

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

Steve

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







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RE: help wanted

[Volokh, Eugene]

   I agree that there might be Eleventh Amendment problems here, as 
there may well be with regard to the Title VII religious accommodation 
requirement, see Holmes v. Marion County Office of Family and Children, 349 
F.3d 914 (7th Cir. 2003); but a statute could avoid them by allowing lawsuits 
by the federal government, or (I take it) by authorizing Ex-parte-Young-like 
injunctions, no?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, February 22, 2016 12:07 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: help wanted

What about Seminole Tribe?

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 22, 2016 11:39 AM
To: Law & Religion issues for Law Academics
Subject: RE: help wanted

   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

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

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

So, help wanted.

Steve



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

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

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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RE: help wanted

[Volokh, Eugene]

   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

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

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

So, help wanted.

Steve



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

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

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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To post, send message to Religionlaw@lists.ucla.edu
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RE: help wanted

[Volokh, Eugene]

   As Cutter v. Wilkinson unanimously held, laws that create 
religious accommodations are not necessarily seen as “respecting an 
establishment of religion” (though some particular accommodations might indeed 
be unconstitutional establishments).  You can agree with that conclusion or 
not, but it’s pretty well settled.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Monday, February 22, 2016 10:50 AM
To: Law & Religion issues for Law Academics 
Subject: Re: help wanted

How does Congress get around the first requirement of laws on religion, that 
"Congress shall make no law?"

Interesting question, but like the computer said in War Games, perhaps "the 
only way to win is not to play."
Ed Darrell
Dallas


From: Steven Jamar >
To: Law Religion & Law List 
>
Sent: Monday, February 22, 2016 10:38 AM
Subject: help wanted

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

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

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

So, help wanted.

Steve



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

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

Miles Davis


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Religionlaw@lists.ucla.edu
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RE: landlord/tenant law and RFRA

[Volokh, Eugene]

Fair enough - the wedding vendors' track record has indeed been 
poor, though at least two of the leading cases haven't involved a strict 
scrutiny analysis:  In the New Mexico photographer case, the court concluded 
that the state RFRA didn't apply to lawsuits filed by nongovernmental actors; 
in the Colorado bakery lawsuit, no RFRA or other Sherbert/Yoder regime was in 
play.  In the Washington florist case, the court did hold that applying 
antidiscrimination law passed strict scrutiny.

I should note, by the way, that one recent antidiscrimination 
law case did come out in favor of a business claimant, under RFRA and under a 
First Amendment compelled speech analysis:  Hands on Originals, a Kentucky case 
(now on appeal) in which a printer refused to print T-shirts promoting a local 
gay pride festival.  See 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/27/printing-business-has-first-amendment-and-rfra-right-to-refuse-to-print-gay-pride-festival-t-shirts/?tid=a_inl,
 which also links to the full opinion.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Thursday, February 04, 2016 10:28 AM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA

Thanks Eugene; I had forgotten some of those cases.

For whatever reason, the litigation shifted from landlords to wedding vendors. 
And the wedding vendors have all lost, although most of those cases are still 
pending on appeal. I was reacting as much to the current hostility to such 
claims as to the track record from the 90s, when the landlord cases were being 
litigated.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Thursday, February 04, 2016 1:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA
Wasn't Jasniowski also vacated, there by the state supreme 
court, 174 Ill. 2d 563 (1997) ("In the exercise of this Court's supervisory 
authority, the Appellate Court, First District, is directed to vacate the 
judgment entered in 287 Ill.App.3d 655, 222 Ill.Dec. 871, 678 N.E.2d 743 
(1997), to vacate the judgment entered by the circuit court in case No. 
94-CH-5546 (December 22, 1994), and to set aside the order entered by the 
Chicago Commission on Human Relations in case No. 92-H-127 (May 18, 1994).")?  
Also, State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990), came out in favor 
of the landlord.

So, as I count it, landlords won in Illinois, Michigan, and 
Minnesota (though in Illinois and Michigan the court opinions were quite 
opaque).  In Massachusetts, the court seemed to say that the landlords could 
win if it appeared that "the rental housing policies of people such as the 
defendants can be accommodated, at least in the [local] area, without 
significantly impeding the availability of rental housing for people who are 
cohabiting or wish to cohabit."  The landlords lost in Alaska under strict 
scrutiny.  And in Smith, the court split 3-3 in applying strict scrutiny, 
though the swing vote (Justice Mosk) concluded that the landlords should lose 
because RFRA violated the separation of powers.

I don't quite see, then, an anti-claimant general trend in the 
marital status discrimination in housing cases.  Rather, it seems like a pretty 
mixed bag, on balance slightly in favor of the landlord claimants, though far 
from uniformly so.  Or am I missing something?

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Thursday, February 04, 2016 9:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA

McCready v, Hoffius was vacated on rehearing and remanded for further 
consideration of the compelling interest issue.

But I agree with Marty on the general trend. For-profit entities have not won 
exemptions from discrimination laws under the RFRA standard. Most of them 
should not win; for the few situations in which they should, specific 
exemptions are needed to provide any protection that is at all likely to work.

From: 
religionlaw-boun...@lists.ucla.edu<redir.aspx?REF=0kHekX3XxiVvGgHALoix3toIKyWGhklW6O4mpoeOhzGFRd5zkC3TCAFtYWlsdG86cmVsaWdpb25sYXctYm91bmNlc0BsaXN0cy51Y2xhLmVkdQ..>
 [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Thursday, February 04, 2016 8:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: landlord/tenant law and RFRA
Roberta:  This would almost certainly be ex

RE: landlord/tenant law and RFRA

[Volokh, Eugene]

Wasn't Jasniowski also vacated, there by the state supreme 
court, 174 Ill. 2d 563 (1997) ("In the exercise of this Court's supervisory 
authority, the Appellate Court, First District, is directed to vacate the 
judgment entered in 287 Ill.App.3d 655, 222 Ill.Dec. 871, 678 N.E.2d 743 
(1997), to vacate the judgment entered by the circuit court in case No. 
94-CH-5546 (December 22, 1994), and to set aside the order entered by the 
Chicago Commission on Human Relations in case No. 92-H-127 (May 18, 1994).")?  
Also, State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990), came out in favor 
of the landlord.

So, as I count it, landlords won in Illinois, Michigan, and 
Minnesota (though in Illinois and Michigan the court opinions were quite 
opaque).  In Massachusetts, the court seemed to say that the landlords could 
win if it appeared that "the rental housing policies of people such as the 
defendants can be accommodated, at least in the [local] area, without 
significantly impeding the availability of rental housing for people who are 
cohabiting or wish to cohabit."  The landlords lost in Alaska under strict 
scrutiny.  And in Smith, the court split 3-3 in applying strict scrutiny, 
though the swing vote (Justice Mosk) concluded that the landlords should lose 
because RFRA violated the separation of powers.

I don't quite see, then, an anti-claimant general trend in the 
marital status discrimination in housing cases.  Rather, it seems like a pretty 
mixed bag, on balance slightly in favor of the landlord claimants, though far 
from uniformly so.  Or am I missing something?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Thursday, February 04, 2016 9:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA

McCready v, Hoffius was vacated on rehearing and remanded for further 
consideration of the compelling interest issue.

But I agree with Marty on the general trend. For-profit entities have not won 
exemptions from discrimination laws under the RFRA standard. Most of them 
should not win; for the few situations in which they should, specific 
exemptions are needed to provide any protection that is at all likely to work.

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Thursday, February 04, 2016 8:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: landlord/tenant law and RFRA
Roberta:  This would almost certainly be exclusively a question of state law, 
wherever it arises (if it ever does).  There first would have to be a state or 
local ordinance prohibiting such discrimination; and then also a state RFRA, or 
a state constitutional free exercise provision that has been construed to be 
more restrictive than the federal FEC in Smith.  If and when a state has both 
of these sorts of state laws, and if any landlord invokes a RFRA exemption, I 
expect, based largely upon past practice, that most or all state courts would 
reject the landlords' claims.  But, of course, there might be some state 
judiciaries that go the other way, especially if the Supreme Court in Zubik 
applies RFRA's "compelling interest"/"least restrictive means" test much more 
stringently than it has construed that "test" since 1963.

Here's a quick string-cite that I recently threw together on the earlier 
landlord cases [if I missed any, please let me know]:

Landlords brought several such claims seeking religious exemptions that would 
permit them to disregard state and local laws prohibiting discrimination 
against unmarried tenants in non-owner-occupied units.  The courts typically 
rejected these claims.  See, e.g., Smith v. Fair Emp't & Hous. Comm'n, 913 P.2d 
909 (Cal. 1996) (federal RFRA); Swanner v. Anchorage Equal Rights Comm'n, 874 
P.2d 274 (Alaska 1994) (state free exercise clause); McCready v. Hoffius, 586 
N.W.2d 723, 729 (Mich. 1998) (state free exercise clause); Jasniowski v. 
Rushing, 678 N.E.2d 743, 748-51 (Ill. App. Ct. 1997) (federal RFRA).  In one 
such case, however, two judges on the U.S. Court of Appeals for the Ninth 
Circuit would have recognized an exemption if the merits of a so-called Smith 
"hybrid" claim were reached, see Thomas v. Anchorage Equal Rights Comm'n, 165 
F.3d 692 (9th Cir. 1999) (majority opinion of O'Scannlain, J., joined by 
Farris, J.), vacated on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc); 
and in another case, Justice Thomas hinted that he, too, was sympathetic to 
such claims under RFRA, see Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 
979 (1994) (Thomas, J., dissenting from denial of petition for writ of 
certiorari).  See also Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) 
(reversing 

Religious exemptions, antidiscrimination law, and businesses

[Volokh, Eugene]

If the question is more broadly cast as "for-profit entities" 
and antidiscrimination law, we might also add Rasmussen v. Glass, 498 N.W.2d 
508 (Minn. Ct. App. 1993).  Tim Glass's Beach Club Deli delivered food to local 
customers, but refused to deliver to an abortion clinic.  The clinic's director 
complained, claiming this violated the Minnesota ban on discrimination based on 
"creed."  The Minneapolis Commission on Human Rights concluded that Glass's 
actions were indeed illegal.

The Minnesota Court of Appeals reversed, by a 2-to-1 vote.  
First, it held that the ban on discrimination based on "creed" was limited to 
discrimination based on the customer's religious beliefs, and not the 
customer's political and philosophical beliefs and the actions that were based 
on those beliefs.  (The dissenting judge thought the ban on discrimination 
based on creed indeed covered discrimination based on a customer's being 
involved in abortions.)

Second, the court held that, "Even if it could be soundly 
argued that the term 'creed' contained in the Minneapolis ordinance should be 
defined by this court to include a nonreligious philosophy such as that held by 
respondents Rasmussen and [the abortion clinic], this court would still be 
required to reverse the Commission's decision" under the Minnesota 
Constitution's religious freedom provision, which the Minnesota Supreme Court 
had been read to basically follow Sherbert/Yoder.  (The dissenting judge 
disagreed with this as well.)

Eugene
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"Islam, at heart, is a peaceful religion"

[Volokh, Eugene]

I'm largely unpersuaded by the Complaint in Wood v. Charles County Public 
Schools, 
https://www.thomasmore.org/wp-content/uploads/2016/01/Thomas-More-Law-Center-Files-Lawsuit-On-Behalf-of-Marine-Dad-Banned-from-Schoo-After-He-Objected-to-Islamic-Indoctrination-Complaint-Time-Stamped.pdf,
 but I was wondering about one item in the school materials plaintiffs object 
to, 
https://www.thomasmore.org/wp-content/uploads/2016/01/Thomas-More-Law-Center-Files-Lawsuit-On-Behalf-of-Marine-Dad-Banned-from-Schoo-After-He-Objected-to-Islamic-Indoctrination-Complaint-Time-Stamped.pdf:
  The public high school materials say that "Islam, at heart, is a peaceful 
religion."

Is that an impermissible governmental announcement about which one of several 
rival approaches to Islam is the "true" version of Islam?  To offer an analogy, 
consider a statement that "Christianity, at heart, is a pro-sexual-equality 
religion," or "Judaism, at heart, is a religion that condemns homosexuality."  
Or is it a constitutionally permissible claim (whether or not one thinks it's 
factually accurate) about the attitudes of the average Muslim in the world?  Or 
is it a governmental announcement about which stream of Islam is the "true" 
version of Islam, but permissible because it has a worthy purpose (promoting 
non-Muslims' tolerance for Muslims, and Muslims' acceptance of the more 
peaceful interpretations of Islam)?

Eugene
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RE: The Establishment Clause question in the Trinity Lutheran case

[Volokh, Eugene]

   I’d prefer, generally speaking, a version of Justice Harlan’s 
view in Welsh and Walz is basically right:  The government should neither 
discriminate in favor of or against religion; if religious exemptions are 
given, they should also be given to comparable secular objectors.

I think the result in Hosanna-Tabor is largely right, but I think (not quite 
consistently the Court, I realize) that the best approach would have been to 
focus on a conclusion that similar rights would be available for secular groups 
as well, under the Free Speech Clause.  The KKK has to be free to choose its 
leaders based on race and religion; the Sierra Club has to be free to bar 
leaders from speaking out in ways that it views as anti-environmentalist, even 
when a state (such as my own California) categorically bars employers from 
setting up rules limiting their employees’ political activity.  I realize that 
Hosanna-Tabor provides more protection than cases such as Boy Scouts v. Dale, 
because it doesn’t require a showing that the employment law substantially 
burdens the institution’s speech.  If that is justifiable (and I think it 
probably is), it would simply because of the principle that the government may 
not decide the reasonableness of religious claims; inquiring what is the true 
reason for a religious institution’s dismissal of a ministerial employee would 
often risk violating that principle, so it may make sense to just categorically 
immunize employment decisions related to churches’ ministerial employees.

But I realize that the Court has not taken my view on this, see Hosanna-Tabor 
and Cutter v. Wilkinson.  The question then is what effect this should have on 
the general principle of no discrimination against religious people, practices, 
and institutions.  It seems to me that it shouldn’t.  That all religious groups 
get a rather modest special benefit in the form of a few constitutionally 
compelled exemptions (see Hosanna-Tabor) and that some religious people end up 
benefiting from religion-only exemption says quite little, I think, about the 
possible exclusion of religious people and institutions from the massive 
benefits offered by the modern welfare state, potentially ranging into the 
billions of dollars’ worth (e.g., when it comes to school choice funding 
programs).

The better analogy, I think, is to ask how we deal with the question here – 
funding.  Texas Monthly v. Bullock tells us that, given the Establishment 
Clause, the government can’t discriminate in favor of religious institutions 
when it comes to funding.  (That’s one reason I’m skeptical about the parsonage 
exemption, one of the few really religion-preferential tax exemptions.)  It 
seems to  me quite consistent with that to read the Lukumi / McDaniel principle 
broadly as barring government discrimination against religion, including when 
it comes to funding.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, January 17, 2016 5:19 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: The Establishment Clause question in the Trinity Lutheran case

An equal treatment theory also does not fit the "ministerial exception" 
constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I wonder 
if Eugene, and others who question the Trinity Lutheran Church outcome, think 
that unanimous decision is incorrect.

Sent from my iPhone

On Jan 17, 2016, at 5:33 PM, James Oleske 
<jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote:
To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit 
legislative exemptions available to religion but not non-religion, or just 
legislative burdens placed on religion but not non-religion? If only the 
latter, is it really a maximalist equal treatment theory? If both the former 
and the latter, is it remotely reconcilable with either current doctrine or 
longstanding tradition allowing legislative accommodation of religion? See 
Cutter ("Religious accommodations ... need not 'come packaged with benefits to 
secular entities'").

- Jim

On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   I share Sandy’s skepticism about the “play in the joints” 
locution, but I wonder why equal treatment doesn’t make sense as a maximalist 
theory?

Consider Sandy’s auditoria hypothetical.  It’s hard to infer 
much based on it, I think, because it’s hard to imagine the government actually 
building auditoria for private organizations.  But let’s consider two more 
plausible versions:


1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
R

Salary supplements for ministers

[Volokh, Eugene]

   I've sometimes heard that surely the Establishment Clause 
wouldn't allow the government just to pay the salary of ministers, and that 
therefore other kinds of benefits - even ones available to a substantial range 
of people or institutions, without regard to religiosity - are 
unconstitutional, too.

   Now I agree that the government can't pay the salary of 
ministers just because they are ministers.  But the government actually does 
offer salary supplements for ministers, alongside other employees who earn 
under the threshold amount, and that's the Earned Income Tax Credit.  For 
instance, if a minister is a head of household, has two children, and earns 
$20,000 (think some assistant pastor, perhaps part-time, at some poor church), 
he will get a substantial net payment from the government.  That's taxpayer 
money going to subsidize ministers (again, alongside the other earners in the 
same boat).  Would those who take a hard separationist position call this an 
Establishment Clause violation?  Say the government decided to continue to 
offer this benefit to all poor earners, but exclude those who chose to earn 
their living by the ministry; would that be consistent with the Free Exercise 
Clause?  Locke v. Davey suggests it would be, but that doesn't seem right to me.

   Note that this isn't a program that's available to everyone, the 
way police or fire protection is: it's only available to a minority of 
taxpayers.  To be sure, the objective criteria - income level, investment 
income level, number of children, filing status - are yes-or-no, while in 
Trinity Lutheran it's points for each criterion, and benefits to those in the 
top X of applicants.  But I don't see what constitutional significance that 
difference should have.

   Eugene










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RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Indeed they are; but does it follow that the government should be 
required to, or even allowed to, refuse to offer health and safety grants on an 
evenhanded basis to such preschools?  Again, asbestos remediation, earthquake 
retrofitting, mosquito abatement, and protection against criminal attack all in 
some measure improve the preschool, and make it more appealing to parents -- at 
least as much, I think, as playground resurfacing would.

Eugene

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, January 17, 2016 12:38 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark" <mgra...@law.umaryland.edu> 
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
> [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I suppose it's possible, but it doesn't seem that likely.  From 
> what I've seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like - not the optimal place for an "'old 
> time religion' tent revival" or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don't use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they're standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety 
> benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law 
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of 
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene" 
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I'm not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don't care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that's more earthquake safe, or th

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: RE: Excluding religious institutions from public safety benefits
> 
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
> 
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
> 
>Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene"
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religious instruction on the playground.
> 
> And a building that's more earthquake safe, or that has asbestos removed, or
> that has a security guard, or lacks dangerous mosquitoes outside, actually is
> slightly more attractive as space for worship and religious instruction:  Some
> people might be more willing to send their kids to a school or a church that's
> earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to
> a church or school that seems dangerous.  The effect won't be vast, but again
> it's not like the extra benefit of a rubberized surface for worship and 
> religious
> instruction is vast, e

RE: The Establishment Clause question in the Trinity Lutheran case

[Volokh, Eugene]

   I share Sandy's skepticism about the "play in the joints" 
locution, but I wonder why equal treatment doesn't make sense as a maximalist 
theory?

Consider Sandy's auditoria hypothetical.  It's hard to infer 
much based on it, I think, because it's hard to imagine the government actually 
building auditoria for private organizations.  But let's consider two more 
plausible versions:


1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
Rector.



2.   The government offers property tax exemptions for a wide range of 
nonprofits, and makes contributions to such nonprofits tax-deductible.  Thus, 
if a nonprofit is building an auditorium, it in effect gets a massive 
matching-grant subsidy from the government.  There's nothing nonsensical, it 
seems to me, about churches being entitled to use this subsidy for building 
their churches.  Indeed, they get such a subsidy now, and it's seen as 
constitutional.  See Walz.  And I think that, if some government decided to 
exclude churches from such subsidies (while making them available to a vast 
range of comparable nonprofits), that would indeed violate the Free Exercise 
Clause.


Now one can argue that, as a matter of history, police, or what have you, the 
Free Exercise Clause should not be read as mandating equal treatment for 
religious observers in general, as to funding, as to some kinds of funding, or 
what have you.  But I just don't see why the equal access rule wouldn't "make[] 
sense."

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, January 17, 2016 9:58 AM
To: Law & Religion issues for Law Academics 
Subject: Re: The Establishment Clause question in the Trinity Lutheran case

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

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

Sandy

Sent from my iPhone

On Jan 17, 2016, at 7:45 AM, Steven Jamar 
> wrote:
It seems to me that the play-in-the-joints theory and providing accommodations 
between exercise and establishment shoiuld win out in this instance thereby 
upholding the Missouri Constitutional ban on direct and indirect financial 
support for religious organizations.

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

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

Steve

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

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



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Religionlaw@lists.ucla.edu
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Please note that 

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

So if there is a gang violence problem at schools, and the 
government gives grants to schools with the most serious problems to hire a 
security guard, the government may - indeed, it sounds like "must" - refuse to 
do the same for religious schools?

What about tax deductibility of contributions, and the property 
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock, 
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as 
involving a form of subsidy?  May (and must) the government refuse to extend 
these benefits, available to a vast range of secular nonprofits, to religious 
institutions?

What about in-kind benefits, such as free or subsidized sewer 
access, trash pickup, fire protection, or police protection?  May (and must) 
the government refuse to provide equal access to such things to churches and 
religious schools?

If it is really objectionable to take one penny of a citizen's 
money to support any church or religion even through an evenhanded benefit 
program, then wouldn't the government have to exclude religion from all these 
benefits?  Conversely, if the government can offer such benefits, it seems to 
me that this is because the prohibition is on taking money to support religion 
because of its religiosity, rather than to offer religious people and 
institutions equal access to broadly available benefits.

Eugene

From: Finkelman, Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene <vol...@law.ucla.edu>; Law & Religion issues for Law 
Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits


Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?



Sent from my T-Mobile 4G LTE device



-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Graber, 
> Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, Janua

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   I suppose it’s possible, but it doesn’t seem that likely.  From 
what I’ve seen, the springy recycled-tire surface tends to be used by swing 
sets, monkey bars, slides, and the like – not the optimal place for an “’old 
time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
field, a baseball diamond, or tennis courts might be a better place, but I 
think they generally don’t use rubber surfaces (since that would throw off the 
play of the game).

   But in any event, if such a service is held on a resurfaced 
playground, the resurfacing would have done little to help the service; the 
service can be held on all kinds of surfaces.  Resurfacing is important when 
kids are running, climbing, and tumbling, not when they’re standing still.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





Call
Send SMS
Call from mobile
Add to Skype
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________
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimi

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state constitutional problem.  There's 
the play in the joints.  This is not how Missouri argued this case below, but 
it is how it should argue in the Supreme Court


On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:

   1.  Removing potentially cancer-causing asbestos.

   2.  Retrofitting for earthquake safety.

   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).

   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).

(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that 

Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:

   1.  Removing potentially cancer-causing asbestos.

   2.  Retrofitting for earthquake safety.

   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).

   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).

(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that religious institutions - and thus the children who go to 
those institutions - can't benefit from such grants.

   If you think that the exclusion in Trinity Lutheran is 
constitutional, do you think all these exclusions would be, too?

   If you think that the exclusion in Trinity Lutheran is actually 
mandated by the First Amendment, do you think all these exclusions would be, 
too?

   Eugene
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Anyone can subscribe to the list and read messages that are posted; people can 
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The funding criteria in Trinity Lutheran

[Volokh, Eugene]

   People can debate to what extent this should matter, but I 
should note that the funding criteria in Trinity Lutheran seem to be pretty 
nondiscretionary as these things go, see http://dnr.mo.gov/pubs/pub2425.pdf .  
Of course, all systems can be enforced in discretionary ways (police protection 
and judicial enforcement of legal rules are classic examples); but these seem 
to leave relatively little wiggle room, especially for evaluation of religious 
or ideological doctrine.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 2:15 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert Granted in Blaine Amendment case

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

[Volokh, Eugene]

   Wouldn't the Justices know all this?  And, especially given 
this, why would the Justices be that upset at the possibility that - of the 
money that goes to religious institutions - 1% would go to madrasa child care 
centers and 99% would go to seemingly nice church/synagogue/etc. child care 
centers?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, January 15, 2016 9:13 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Funds for madrasas

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

Sandy

Sent from my iPhone

On Jan 15, 2016, at 6:46 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   It seems to me that taxpayers routinely subsidize speech the 
majority disapproves of:

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

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

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

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

   Eugene

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

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

Sandy ...

Sent from my iPhone



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

sandy ...
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High school athlete disqualified under uniform code for wearing headband with religious writing on it

[Volokh, Eugene]

Any thoughts on this story?  A variant of this issue - though as to 
nonreligious speech - has also come up at times in other places, see, e.g., 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/05/high-school-teams-allowed-to-practice-in-slogan-bearing-shirts-i-cant-breathe/
 .  I assume the GHSA would be a state actor, under Brentwood Academy, 
https://scholar.google.com/scholar_case?case=2890003226740495113 .  Georgia 
doesn't have a state RFRA, and Georgia courts haven't considered whether the 
state constitution's religious freedom clause should be interpreted to follow 
Sherbert / Yoder or instead to follow Smith.

Eugene


http://www.npr.org/sections/thetwo-way/2015/11/12/455766673/high-school-runner-disqualified-after-3rd-place-finish-for-headband-with-writing


A high school runner was disqualified after finishing third in the Georgia 
cross-country A state championship race for wearing a headband with writing 
on it.

John Green, a senior at West Forsyth High School, ran the race wearing a white 
headband with a Bible verse written on it. After the race, he was disqualified 
for a uniform violation. Though the school appealed the disqualification, the 
Georgia High School Association has said the decision will stand.

Now a discussion is taking place about the fairness of the rule and its 
enforcement, unnecessary bureaucracy, and even religious freedom.
...


The GHSA released a statement disputing the series of 
events and saying the decision 
to disqualify Green was a matter of uniform code only.

"First, let's be completely clear that this disqualification had nothing to do 
with what was written on the athlete's headband. The fact that it was of a 
religious nature did not enter into the decision whatsoever.

"Also, despite published reports to the contrary, the athlete and his coach 
were informed before the start of the race that the headband in question was 
illegal and could not be worn during the race.

"After being informed that the headband was illegal, the athlete removed the 
headband and the meet referee assumed he would run the race without it. 
However, at some point after that, the coach and the athlete made the decision 
to ignore the warning and the headband was put back on. Since the athlete then 
ran the race with apparel that had already been ruled illegal, there was no 
choice but to issue a disqualification."

It also included a quote from the referee who disqualified him:

"I was called to the start line by the clerk concerning the headband. It was a 
white headband with large black letters written on it. The coach said he could 
turn it inside-out and make it legal. He did so, and the writing was still very 
visible. The rule said the item had to be unadorned except for a logo, and this 
clearly was not the case. I told the coach and the athlete that he could not 
wear the headband during the competition. The athlete took it off - neither the 
coach nor athlete were happy - and I left. When I got back to the finish area, 
I noticed the athlete had a white headband on. So, when I saw him come down the 
finish hill, I went inside the finish corral to watch him finish, and he had 
the same headband on. I told the timer to DQ him, I paged the coach, and told 
the coach of the disqualification."

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RE: Muslim-focused "reflection room" in airport

[Volokh, Eugene]

Ed:  Is this based on specific knowledge of how Orlando 
International runs these things, or based on an inference about how other 
airports do it.  According to the Orlando Sentinel story, it is the airport 
that is publicly taking credit for the reflection room, as well as for another 
planned chapel.  (“In addition to the reflection room, airport spokeswoman 
Carolyn Fennell said, Orlando International also intends to build another 
chapel and place in the main terminal, where it can be reached without going 
through security.”)  Is that mistaken?  Is it that the airlines actually get 
together and decide such construction questions between them, and the airport 
just takes credit for it.

As to this being “non-tax money,” I’m still not sure what the 
constitutional significance of that is.  The great bulk of UCLA law school’s 
operating expenses, for instance, come from students.  Does that mean that 
there’s no Establishment Clause scrutiny if we build a chapel at the law 
school?  I don’t of any authority for any difference in treatment between 
government funds raised through taxes and government funds raised through user 
fees, though I’d be happy to be enlightened if I’m missing it.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Thursday, October 29, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

Orlando is managed by the Greater Orlando Aviation Authority, which does not 
make decisions on allocating space in the terminals. It's the airlines that 
make those decisions, and the money spent is not from taxes, but comes 
exclusively from airline and concession rentals (generally the concession 
rentals offset the high costs of the airlines; still no tax money involved).

Not sure how non-tax money gets put into a pool labeled "government." I can 
tell you terminals like O'Hare probably couldn't get built were a government 
making the decisions -- just as Grand Central Station was built with private 
money (is it government now?).

A better analogy might be the great sports stadia, which have bonds nominally 
issued by a municipality, but generally with no tax contributions; and the 
management of the stadium  is left to a semi-governmental entity, or to the 
biggest lease holder (like Cowboy Stadium  -- AT Stadium -- in Arlington, 
Texas).

Does government have a say in whether the New York Giants gather for prayer at 
midfield before or after a game?

It's not a First Amendment-free zone, but it's not the same as government 
speech, nor the same as government accommodation of speech or religion.

Ed Darrell
Dallas


________
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, October 28, 2015 7:53 PM
Subject: RE: Muslim-focused "reflection room" in airport

   I much appreciate the background on how airports make their 
money, but I don’t think this matters for Establishment Clause purposes, so 
long as the decisions are made by a government entity, using money at the 
disposal of government entity (whether it comes from taxes or user fees).  The 
Orlando airport is managed by a government entity, the Greater Orlando Aviation 
Authority, http://www.orlandoairports.net/about.htm, and as best I can tell 
from the stories, it’s making the decision to create the reflection room, using 
money that is in its fisc.  I don’t think that’s any different from, say, a 
public university using student fees to build such a room – perhaps 
permissible, but very far removed from “religious verse citations listed on the 
soft-drink cups at In-n-Out Burgers.”

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Wednesday, October 28, 2015 2:31 PM
To: Alan E Brownstein; Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

Alan, there's a difference between public space and the space people pay rent 
on. Every chapel I know of falls into the private area (there may be others); 
the questions tend to revolve around whether the public spaces of terminals are 
truly public like a public street. At O'Hare we had secular war over whether 
the Chicago newspapers could put boxes up to sell newspapers outside the 
newsstands (airline issue was that newsstands pay very high rents, newspapers 
argued they had a First Amendment right to sell anywhere without paying rent . 
. .).  Many of those issues fell away after the first magnetometers went in, 
and I suspect the rest went away after 9/11 

Muslim-focused "reflection room" in airport

[Volokh, Eugene]

   A blog reader asked me about this, and I thought I’d pose the 
question to the list.  Orlando Airport is apparently spending $250,000 to build 
a “reflection room” where Muslim travelers can more conveniently pray, 
especially given the expansion of the airline Emirates at the airport.  See 
http://www.orlandosentinel.com/business/os-orlando-international-airport-reflection-room-20150808-story.html
 .  The reflection room is in addition to “the small, nondenominational chapel 
tucked away on Airside B, just past the security checkpoint,” where Muslim 
travelers sometimes now go (and where there are some prayer rugs available for 
them).  The reflection room would be open to all religious groups, as I 
understand it, but will be primarily designed with Muslim travelers in mind.

   Now I don’t think this should be a problematic accommodation, 
any more than serving kosher meals (or halal meals) in those government 
cafeterias in which there is sufficient demand.  But I wonder whether there 
might nonetheless be a First Amendment problem under the 1970s cases barring 
the use of government funds for physical places where religious services will 
be held.  (I realize the issue arises as to “reflection rooms” more broadly as 
well.)  What do people on the list think about it?  Thanks,

   Eugene
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RE: Muslim-focused "reflection room" in airport

[Volokh, Eugene]

   I much appreciate the background on how airports make their 
money, but I don’t think this matters for Establishment Clause purposes, so 
long as the decisions are made by a government entity, using money at the 
disposal of government entity (whether it comes from taxes or user fees).  The 
Orlando airport is managed by a government entity, the Greater Orlando Aviation 
Authority, http://www.orlandoairports.net/about.htm, and as best I can tell 
from the stories, it’s making the decision to create the reflection room, using 
money that is in its fisc.  I don’t think that’s any different from, say, a 
public university using student fees to build such a room – perhaps 
permissible, but very far removed from “religious verse citations listed on the 
soft-drink cups at In-n-Out Burgers.”

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Wednesday, October 28, 2015 2:31 PM
To: Alan E Brownstein; Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

Alan, there's a difference between public space and the space people pay rent 
on. Every chapel I know of falls into the private area (there may be others); 
the questions tend to revolve around whether the public spaces of terminals are 
truly public like a public street. At O'Hare we had secular war over whether 
the Chicago newspapers could put boxes up to sell newspapers outside the 
newsstands (airline issue was that newsstands pay very high rents, newspapers 
argued they had a First Amendment right to sell anywhere without paying rent . 
. .).  Many of those issues fell away after the first magnetometers went in, 
and I suspect the rest went away after 9/11 and the advent of TSA.

Some airports successfully put up boxes from which the Hare Krishnas could 
sing, dance, and ask for converts.  I am unaware that any other faiths ever 
used the boxes.

I'm working from memory, but my recollection is that the airlines agreed to put 
up $200,000 to build and furnish a couple of chapels, nominally under the 
direction of a Catholic priest who somehow wangled O'Hare as his area of 
influence. One of the questions the airlines had was whether those chapels 
would be open to all faiths, and Father Jamnicky assured us they would be.  
When I checked later that's what I found.

Generally it's the airport committee of airlines that sets those policies.  
Most major airports have a "board" to oversee the administration of the airport 
apart from the terminals and runways, and to coordinate activities, and those 
boards, made up of people from the community (as at DFW, and MCO if I read that 
news article correctly).  The community boards generally rubber stamp decisions 
of the airport committee, if they do anything at all.

When the suing starts, it's the airlines that bear the burden of costs, 
usually.  Sometimes those suits are done with coordination of the local 
municipality, but the airlines pay the lawyers and are named in the suits.

If Emirates Air has a sizable presence, they may have some influence; I think 
most airports would go out of their way to accommodate reasonable requests of 
airlines who pay massive landing fees.

All commercial airports in the U.S. are built with bond money, the bonds issued 
on guarantee the airlines will be paying rents for a long time -- most of the 
agreements are 30-years to start out. European airports are usually 
nationally-managed.  Canada has a little greater control on the airport, but 
the structure is much the same as the U.S.

Airlines are generally too cheap to put up a facility for just one faith.  
Would it be constitutional? Probably, but it makes little commercial sense 
because of the possibility of offense to someone. Airlines like to keep 
customers happy and coming back often. In Orlando (MCO), this seems pretty 
clearly a concession for Islam that matches concessions already made to other 
faiths.

Maybe we can find some airport people who know better what's going on in Europe 
now, and in the Middle East.

I came through Beijing a couple of weeks ago, and I looked for a chapel there, 
and found none. Considering how heavily used most of the Buddhist shrines in 
China are, as religious practice locations, I thought that a little surprising. 
 I don't speak Chinese at all, and couldn't find anyone to ask. All other 
public spaces I saw have signs of codes of conduct, which prohibit 
"superstitious activities."

Perhaps we could all call our local airports, and ask about chapels.  We might 
discover something that way.

Ed Darrell
Dallas



From: Alan E Brownstein 
>
To: Ed Darrell >; Law & 
Religion issues for Law Academics 
>
Sent: Wednesday, October 28, 2015 

RE: Muslim-focused "reflection room" in airport

[Volokh, Eugene]

   Alan is right as a matter of general principles, and as a matter 
of precedent, see Board of Regents v. Southworth (2000).

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Wednesday, October 28, 2015 4:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Muslim-focused "reflection room" in airport

I would hope that no court would hold that allocating access to public property 
or allocating public funds on the basis of majority approval or votes would 
constitute neutral criteria for constitutional purposes. A regulation allowing 
the community to vote on which speakers would be allowed to hold a rally in a 
public park (the top five get a permit) would not be a content neutral speech 
regulation. I do not think the problem in Rosenberger would be avoided if the 
University of Virginia allowed students to vote to determine which students 
periodicals would receive support from the University and no religious 
periodicals received sufficient votes to receive funds. If funds are to be 
allocated according to neutral criteria between religious and non-religious 
uses, asking the majority how it would allocate funds should not satisfy that 
standard.

If the room is designated for expressive purposes without any special regard 
for religious uses, then majority ranking might be acceptable. I know no 
constitutional constraint preventing majorities from favoring expressive uses 
over fast food restaurants.

Alan

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Justin Butterfield
Sent: Wednesday, October 28, 2015 2:35 PM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

The former, but not that rooms are provided for a wide range of expressive 
groups so much as that the use of the funds is grounded in neutral criteria 
(the Sixth Circuit goes on to explain that they upheld Detroit's downtown 
refurbishment program, which provided funds to refurbish churches, because the 
funds were given out according to facially neutral criteria and there was no 
evidence that the facially neutral criteria were chosen to "stack the deck in 
favor of groups that engage in religious indoctrination." Am. Atheists, 567 
F.3d at 291, 302. For example (and assuming that the airport's funds are 
governmental funds), suppose that the airport polled frequent fliers in a 
terminal as to what accommodations the terminal was lacking and promised to 
provide $250,000 each to build the top 5 most-requested accommodations. The 
results are two fast-food restaurants, the reflection room, a gym, and a luxury 
seating area, each of which is provided $250,000. This dispersement would be 
based on neutral criteria, even though there is only one "expressive group."

Justin
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RE: Kim Davis announcement about what she'll do at work today

[Volokh, Eugene]

   It will make the license a collector’s item.

   Eugene

From: James Oleske [mailto:jole...@lclark.edu]
Sent: Monday, September 14, 2015 9:15 AM
To: Law & Religion issues for Law Academics
Cc: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Michael Dorf; Samuel Bagenstos
Subject: Re: Kim Davis announcement about what she'll do at work today

Update:

Unlike the licenses previously issued by deputy clerk Brian Mason to same-sex 
couples, which included "in the office of Rowan County," the license he issued 
this morning has the words "in the office of" crossed out and the language 
"Pursuant to the Federal Court Order" in the place where ordinarily the names 
of the clerk and the county would be inserted (image here: 
https://twitter.com/alanblinder/status/643447815641899008).

So Davis appears to have imposed her position from the deposition (that both 
her name AND the name of her county must be removed from the form). As several 
of us have noted on the religionlaw list, this approach raises both 
establishment and equal protection questions, but the more immediate question 
is whether it is consistent with Judge Bunning's non-interference order.

- Jim


On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
summarizing:

http://balkin.blogspot.com/2015/09/kim-davis-developments.html

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Real-life effects of Kim Davis's actions

[Volokh, Eugene]

   1.  Unless I’m mistaken, one can get a license from a 
neighboring county.  One neighboring county seat, for instance, seems to be 20 
miles from the Rowan County seat.  To be sure, there’s a good argument that, as 
a matter of principle, one shouldn’t have to go outside one’s home county.  But 
if the concern is about “real life questions,” wouldn’t a real life answer be 
pretty readily available?

   2.  Relatedly, I’m pretty sure that Kim Davis’s actions are 
neither intended to nor likely to actually “prevent all traditional marriages,” 
any more than (say) a strike by teachers is an attempt to “prevent all 
education.”  Indeed, if I’m right that people can go to neighboring counties, 
Davis’s actions are much less likely to have such an effect (whatever the 
symbolic meaning one might ascribe to them might be).  Rather, their only 
immediate practical, as opposed to symbolic, effect seems to be to make things 
a bit more of a hassle for most people (and maybe considerably more of a hassle 
for a few people).

   None of this is an endorsement of Davis’s actions.  Whatever 
accommodation she might or might not be entitled to, she should not have just 
refused to do her duty altogether, as opposed to properly seeking an 
accommodation beforehand.  But I do think that, if we’re talking about 
practical effects, they ought to be evaluated practically.

   Eugene

From: Paul Finkelman [mailto:paul.finkel...@yahoo.com]
Sent: Wednesday, September 09, 2015 7:34 PM
To: Law & Religion issues for Law Academics; Volokh, Eugene; Dellinger, Walter; 
Douglas Laycock; Howard Wasserman; conlawp...@lists.ucla.edu; Michael Dorf
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses 
BUT ARE THEY VALID?

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

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

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


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
To: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>; 
"Dellinger, Walter" <wdellin...@omm.com<mailto:wdellin...@omm.com>>; Douglas 
Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>>; Howard Wasserman 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>; 
"conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" 
<conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>>; Law & Religion 
issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Michael Dorf 
<miked...@gmail.com<mailto:miked...@gmail.com>>
Sent: Tuesday, September 8, 2015 1:06 PM
Subject: Kim Davis released, given that her Deputies are issuing licenses

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html



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

[Volokh, Eugene]

   How would that argument fit with the Court's rejection of the 
Griffin analogy in Palmer v. Thompson?  Griffin involved a system in which 
there were still state-funded - though privately operated - schools that were 
racially segregated.  In Palmer, the Court stressed that this wasn't so as to 
the swimming pools.  "[T]he Griffin case simply treated the school program for 
what it was -- an operation of Prince Edward County schools under a thinly 
disguised 'private' school system actually planned and carried out by the State 
and the county to maintain segregated education with public funds.  That case 
can give no comfort to petitioners here.  Unlike Prince Edward County, Jackson 
has not pretended to close public pools only to run them under a 'private' 
label."

Likewise, under Kim Davis's approach, there was no discriminatory marriage 
system that is being run in parallel with government funding (discriminatory, 
that is, between same-sex and opposite-sex marriages).  All couples in Rowan 
County had to travel out of the county to get their marriage licenses and 
certificates, regardless of whether they were same-sex or opposite-sex couples. 
 Again, that might be an unconstitutional burden on the right to marry.  But I 
don't see how Griffin can, in light of Palmer, make it into an Equal Protection 
Clause violation.

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 10:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties

Another possible analogy, perhaps, is Griffin v. County School Board, where the 
Court said: "Prince Edward's public schools were closed and private schools 
operated in their place with state and county assistance, for one reason, and 
one reason only: to ensure, through measures taken by the county and the State, 
that white and colored children in Prince Edward County would not, under any 
circumstances, go to the same school. Whatever nonracial grounds might support 
a State's allowing a county to abandon public schools, the object must be a 
constitutional one, and grounds of race and opposition to desegregation do not 
qualify as constitutional ".  While the assistance there to private schools 
is not paralleled here, the underlying principle seems parallel:  a county may 
not suspend issuance of marriage licenses based on opposition to same sex 
marriage.

Sent from my iPad
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No second-class citizenship for the religious

[Volokh, Eugene]

   If the question is how the refusal to issue alcohol licenses not 
an Establishment Clause violation, given the religious purpose for the action, 
the answer is the same as that given in Bob Jones Univ. and Harris v. McRae:  
That government officials – whether legislators or executive officials – 
implement a facially secular rule (no alcohol, no funding for abortions, no 
race discrimination) because of their religion doesn’t make their actions 
Establishment Clause violation.

   The Establishment Clause doesn’t relegate Muslims (or Baptists 
or others) to being second-class citizens, who are unable to implement their 
beliefs into law while more favored secular citizens are able to implement 
beliefs on precisely the same questions into law.  If secular people are 
allowed to ban alcohol because of their philosophical judgment (whether 
utilitarian, based on their philosophical views of how to reckon the utility, 
or deontological), then religious people are equally allowed to ban alcohol 
because of their religious judgment.  Of course, if secular people aren’t 
allowed to ban alcohol (e.g., because state law provides for a right to alcohol 
licenses, without giving clerks the discretion to deny licenses), then 
religious people aren’t, either.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 11:02 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene

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

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


On Sep 7, 2015, at 1:13 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   1.  If the county clerk refuses to issue restaurant licenses to 
any restaurant that was not halal, that might constitute discrimination based 
on the religious practices followed by a restaurant, and would violate the 
Establishment Clause’s “no religious decisions” principle by requiring a 
government official to decide what is halal and what is not.

   2.  If the county clerk simply refuses to issue licenses to any 
establishment that serves alcohol, he might be violating state law, assuming 
that he has a nondiscretionary duty to issue licenses.  But he isn’t violating 
the federal constitution, any more than a county clerk who disapproves of 
alcohol for secular purposes is violating the federal constitution.  What 
secular people are free to do based on their philosophical judgment, Muslims 
are free to do based on their religious judgment.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 10:04 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene

How about this hypothetical:
Let's say we elected a very conservative Muslim as a county clerk.  Assume the 
county clerk is the only one who issues licenses for restaurants and issues 
liquor licenses.  Assume this clerk refused to issue restaurant licenses to any 
restaurant that was not halal or or to any establishment that served alcohol. 
Non-halal restaurants are legal as is serving alcohol in the state.
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--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

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

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

[Volokh, Eugene]

   1.  If the county clerk refuses to issue restaurant licenses to 
any restaurant that was not halal, that might constitute discrimination based 
on the religious practices followed by a restaurant, and would violate the 
Establishment Clause’s “no religious decisions” principle by requiring a 
government official to decide what is halal and what is not.

   2.  If the county clerk simply refuses to issue licenses to any 
establishment that serves alcohol, he might be violating state law, assuming 
that he has a nondiscretionary duty to issue licenses.  But he isn’t violating 
the federal constitution, any more than a county clerk who disapproves of 
alcohol for secular purposes is violating the federal constitution.  What 
secular people are free to do based on their philosophical judgment, Muslims 
are free to do based on their religious judgment.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, September 07, 2015 10:04 AM
To: Law Religion & Law List
Subject: Re: What's happening in KY? -- my differences with Eugene

How about this hypothetical:
Let's say we elected a very conservative Muslim as a county clerk.  Assume the 
county clerk is the only one who issues licenses for restaurants and issues 
liquor licenses.  Assume this clerk refused to issue restaurant licenses to any 
restaurant that was not halal or or to any establishment that served alcohol. 
Non-halal restaurants are legal as is serving alcohol in the state.
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RE: What's happening in KY? -- wrong case, wrong parties

[Volokh, Eugene]

sible. Of course we don't have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn't the plaintiffs' call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt - the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don't see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis's 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis's religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That's about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

Mark Scarberry:

> The only real questions for the federal court should be whether her 
> even-handed
> refusal to authorize issuance of any licenses violates the 14th Amendment's
> equal protection clause and whether her refusal impermissibly burdens the 
> right
> of all couples to marry (when they can get licenses from other counties by
> driving an hour). Perhaps if one of those issues is decided against her, then 
> the
> federal court could exercise jurisdiction to decide the state law issue, but
> otherwise it seems to me that the federal court should leave the issues to 
> state
> officials and state courts.

   I appreciate that the right-to-marry issue isn't open and shut, 
but the district court did decide it against her:

The state action at issue in this case is Defendant Davis' refusal to issue any 
marriage licenses. Plaintiffs contend that Davis' "no marriage licenses" policy 
significantly interferes with their right to marry because they are unable to 
obtain a license in their home county. Davis insists that her policy does not 
significantly discourage Plaintiffs from marrying because they have several 
other options for obtaining licenses: (1) they may go to one of the seven 
neighboring counties that are issuing marriage licenses; (2) they may obtain 
licenses from Rowan County Judge Executive Walter Blevins; or (3) they may 
avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from 
one of the surrounding counties; thus, they are not totally precluded from 
marrying in Kentucky. However, this argument ignores the fact that Plaintiffs 
have strong ties to Rowan County. They are long-time residents who live, work, 
pay taxes, vote and conduct other business in Morehead. Under these 
circumstances, it is understandable that Plaintiffs would prefer to obtain 
their marriage licenses in their home county. And for other Rowan County 
residents, it may be more than a preference. The surrounding counties are only 
thirty minutes to an hour away, but there are individuals in this rural region 
of the state who simply do not have the physical, financial or practical means 
to 
travel.5<https://a.next.westlaw.com/Document/I95b9b473446c11e5b86bd602cb8781fa/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad60407014fa46fad50b54f9c63%3FNav%3DCASE%26fragmentIdentifier%3DI95b9b473446c11e

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

[Volokh, Eugene]

Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issues to 
> state

> officials and state courts.



   I appreciate that the right-to-marry issue isn't open and shut, 
but the district court did decide it against her:


The state action at issue in this case is Defendant Davis' refusal to issue any 
marriage licenses. Plaintiffs contend that Davis' “no marriage licenses” policy 
significantly interferes with their right to marry because they are unable to 
obtain a license in their home county. Davis insists that her policy does not 
significantly discourage Plaintiffs from marrying because they have several 
other options for obtaining licenses: (1) they may go to one of the seven 
neighboring counties that are issuing marriage licenses; (2) they may obtain 
licenses from Rowan County Judge Executive Walter Blevins; or (3) they may 
avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from 
one of the surrounding counties; thus, they are not totally precluded from 
marrying in Kentucky. However, this argument ignores the fact that Plaintiffs 
have strong ties to Rowan County. They are long-time residents who live, work, 
pay taxes, vote and conduct other business in Morehead. Under these 
circumstances, it is understandable that Plaintiffs would prefer to obtain 
their marriage licenses in their home county. And for other Rowan County 
residents, it may be more than a preference. The surrounding counties are only 
thirty minutes to an hour away, but there are individuals in this rural region 
of the state who simply do not have the physical, financial or practical means 
to 
travel.5
This argument also presupposes that Rowan County will be the only Kentucky 
county not issuing marriage licenses. While Davis may be the only clerk 
currently turning away eligible couples, 57 of the state's 120 elected county 
clerks have asked Governor Beshear to call a special session of the state 
legislature to address religious concerns related to same-sex marriage 
licenses.6
 (Doc. # 29–9). If this Court were to hold that Davis' policy did not 
significantly interfere with the right to marry, what would stop the other 56 
clerks from following Davis' approach? What might be viewed as an inconvenience 
for residents of one or two counties quickly becomes a substantial interference 
when applicable to approximately half of the state.
As for her assertion that Judge Blevins may issue marriage licenses, Davis is 
only partially correct. KRS § 
402.240
 provides that, “[i]n the absence of the county clerk, or during a vacancy in 
the office, the county judge/executive may issue the license and, in so doing, 
he shall perform the duties and incur all the responsibilities of the clerk.” 
The statute does not explicitly define “absence,” suggesting that a traditional 
interpretation of the term is appropriate. See Merriam–Webster Online 
Dictionary, 2015, http:// www.merriam-webster.com/, (describing “absence” as “a 
period of time when someone is not present at a place, job, etc.”). However, 
Davis asks the Court to deem her “absent,” for purposes of this statute, 
because she has a religious objection to issuing the licenses. While this is 
certainly a creative interpretation, 

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

[Volokh, Eugene]

   1.  I think the substantial burden question turns on whether an 
objector sincerely believes that what she is ordered to is against her 
religion.  If she sincerely believes that distributing licenses with her name 
is, in God’s eyes, putting her name to an authorization of sinful conduct and 
therefore against God’s will, that’s what matters for substantial burden 
purposes – not that this doesn’t count as “authorization” for purposes of 
secular law or secular reason.

   2.  Davis’s stay petition, filed in the Supreme Court, says, 
among other things, “In this matter, even if the ‘desired goal’ is providing 
Plaintiffs with Kentucky marriage licenses in Rowan County, numerous less 
restrictive means are available to accomplish it without substantially 
burdening Davis’ religious freedom and conscience, such as ... Modifying the 
prescribed Kentucky marriage license form to remove the multiple references to 
Davis’ name, and thus to remove the personal nature of the authorization that 
Davis must provide on the current form.”  
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (PDF pp. 39-40).  To be sure, we might not view the presence of her name as 
“personal nature of the authorization,” or the removal of her name as at all 
morally or religiously significant under our understanding of a rational theory 
of complicity in sin.  But of course religious exemption rules apply even to 
people who don’t operate in ways that we think are rational or sensible.

   3.  It seems to me that the Kentucky Legislature has already 
potentially authorized religious exemptions from the statute that requires that 
marriage certificates and licenses bear the clerk’s name – as well as from 
virtually all other Kentucky statute.  It did so by enacting the Kentucky RFRA. 
 The very point of a RFRA (right or wrong) is that religious objectors 
shouldn’t have to wait for the Legislature to expressly amend statutes to 
include religious exemptions; instead, they could go to court to ask for an 
exemption, and the court could grant such an exemption if it concludes that the 
law substantially burdens religious practice and denying the exemption isn’t 
the least restrictive means of serving a compelling government interest.  (The 
legislature could of course then overrule the court decision, if it thinks the 
court got the strict scrutiny or substantial burden analysis wrong, by 
expressly exempting the statute from the RFRA.)

   A simple analogy:  Say someone objects to having a photograph of 
her face on a driver’s license, whether because she thinks that’s an 
impermissible graven image, or because she thinks she must always appear veiled 
in front of men who aren’t family members.  A court applying a RFRA might be 
able to reject the exemption request on strict scrutiny grounds related to the 
need for visual identification as a means of protecting public safety.  (Back 
in the Sherbert/Yoder era, courts considering this question were split, and the 
Court split 4-4 on it in Jensen v. Quaring.)  But if a court concludes that not 
having a photo wouldn’t materially undermine public safety, and thus that 
strict scrutiny isn’t satisfied, it wouldn’t have to wait for the legislature 
to amend the statute that requires photographs on driver’s licenses: the state 
RFRA would itself authorize the court to require that the license be issued 
without the photograph, as a less restrictive means of serving the broader 
interest in making sure that drivers have at least some sort of license.  
Again, state RFRA has potentially authorized religious exemptions from the 
driver’s license photo requirement just as it has potentially authorized 
religious exemptions from peyote bans, the duty to serve as a juror, and so on. 
 Likewise for the requirement that marriage licenses and certificates contain 
the county clerk’s name.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 10:32 AM
To: Cohen,David; Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: What's happening in KY? -- my differences with Eugene

Sorry, I had not previously seen Eugene's post on the VC:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

Eugene argues that perhaps Davis is entitled under the Kentucky RFRA to have 
her office (that is, her deputies) issue licenses without her name appearing on 
them.  For reasons I've already offered, I don't think this is right, because I 
don't think there's a substantial burden on her religious exercise.

But more to the point, and even if I'm wrong about the substantial burden 
point:  Davis doesn't think the Kentucky RFRA permits that resolution, either.  
She is not trying to have her 

RE: What's happening in KY?

[Volokh, Eugene]

   Sandy:  Why would the standards be the same for the 
Establishment Clause endorsement test and the religious exemption substantial 
burden test?  The endorsement test is supposed to be "objective" in the sense 
of asking how a reasonable observer would perceive an action.  The substantial 
burden test is supposed to be subjective in the sense of what the religious 
adherent sincerely believes is religiously forbidden (among other things) to 
her.  How a "reasonable observer" would perceive things seems to me as 
irrelevant as whether a "reasonable observer" would read the Torah as 
forbidding the eating of chicken with cream sauce.

   Indeed, let's work with the religious symbolism cases.  A 
government employer puts up a Christmas tree - no Establishment Clause 
violation, says the majority in Allegheny (and correctly so, I think, since a 
reasonable observer wouldn't perceive the Christmas tree as having a religious 
message.  But now the employer asks the employees to decorate the tree, and one 
of them objects, saying that she perceives the Christmas tree as a religious 
symbol of a religion to which she doesn't subscribe, and the decoration ritual 
as conveying her endorsement of the symbol, which she believes to be 
religiously forbidden to her.  Would there be any basis for rejecting her Title 
VII reasonable accommodation claim on the grounds that a reasonable person 
wouldn't view the decoration of a Christmas tree that way?  I would think not, 
right?  (I say this as a non-Christian of Jewish ancestry who loves to have a 
Christmas tree.)

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Saturday, September 05, 2015 8:02 AM
To: Marty Lederman
Cc: Cohen, David; Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: What's happening in KY?

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

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
> wrote:
FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

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

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

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

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

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

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

Is the case now moot and the clerk can get out of jail because she'd no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn't capable of repetition at this point for the plaintiffs, as they now 
have a license and can't get another (until divorced, which may never 

"Authorizing," in law and in religious belief

[Volokh, Eugene]

   1.  Here’s my understanding of the matter:  Kim Davis is looking 
at a document that says “marriage license,” with the text “You are hereby 
authorized to join together in the state of matrimony” two men (or two women).  
She looks at a document that says “marriage certificate,” with the text “I do 
certify that” two men or two women “were united in marriage.”  But she 
apparently thinks that same-sex unions are not “marriage” under God’s law.  She 
therefore thinks it’s against God’s will to have her name attached to documents 
that on their face “authorize[]” such marriages or “certif[y]” such marriages.

   Now it may well be that Kentucky law actually doesn’t treat her 
signature as authorizing such marriages.  But it strikes me as not at all odd 
(not that oddity should matter in such cases) that someone would look at those 
documents and conclude that, given her “sincerely-held religious belief that 
marriage is a union between a man and a woman, only,” she would think it’s 
religiously wrong for her to have her name attached to such documents.  That’s 
a judgment of what her duty to God requires, not a judgment about how Kentucky 
marriage license statutes should be interpreted.

   2.  I read Davis’s stay application as saying that the state of 
Kentucky can give her the accommodation she wants by “[m]odifying the 
prescribed Kentucky marriage license form to remove the multiple references to 
Davis’ name, and thus to remove the personal nature of the authorization that 
Davis must provide on the current form”; I don’t read it as saying that the 
Kentucky Legislature, as opposed to the Kentucky courts applying the Kentucky 
RFRA, must do that.  If she is insisting on a legislative change, then I agree 
that there’s no basis for saying that such a change would be required in order 
for her name to be removed (whether she’s saying it or others on the list are 
saying it).

   3.  I agree that Davis had no right to just stop issuing 
marriage licenses altogether, in violation of state law and of the federal 
constitution (assuming the district court was right in concluding that the 
right to marry includes a right to get a marriage license from your home 
county).  As a government official, she has a duty to try to follow the law (at 
least the law that imposes ministerial, nondiscretionary duties on her) to the 
maximum extent possible; it would be incumbent on her to try to get an 
accommodation worked out beforehand, or to comply with the law while she’s 
getting the accommodation worked out, at least when she could have sought an 
emergency accommodation but didn’t.  I express no opinion on how that interacts 
with Justice Alito’s arguments.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 12:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

1.  I don't understand Kim Davis to claim "that God would view her issuing such 
licenses with her name on them as authorization."  I can't even imagine what 
that would mean:  That God has a view of when the appearance of a name on the 
"issued in" line of a state licensing form constitutes one human being 
"authorizing" another to perform a marriage?  That God has a view about the 
actual legal operation of Kentucky law?  Of course not.  Davis instead argues 
that she would be sinning because her name would provide legal authorization to 
the minister, under KY law.  That's a secular question.

2. As I understand it, Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her! -- but instead is asking the court to grant her the right to prevent 
all licenses from being issued in the county, on the theory that the 
legislature could, in theory, create the just-not-with-my-name-on-them 
accommodation.

3.  Most importantly, you seem to agree, Eugene, that the very possibility of 
such a legislative fix is not sufficient to give Davis a RFRA right to 
cessation of all issuance of marriage licenses in her county.  Does this mean 
that you disagree with the Alito view of "least restrictive means" -- to 
include all possible legislative alternatives -- which the plaintiffs are 
pressing hard in the contraception cases?

On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Marty doesn’t view her issuance of the licenses as 
authorization.  He may well be right that Kentucky law doesn’t view it as 
authorization.  But, as I understand it, Kim Davis claims that God would view 
her issuing such licenses with her name on them as authorization.  If that is 
indeed Kim Davis’s claim, which it seems to be, then I don’t think it matter

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

[Volokh, Eugene]

 in one of your earlier posts, Marty.  Can you fill 
me in on just how the court has already provided this relief?  I thought the 
forms were pre-printed with her name and title.  Did the court authorize her to 
print new forms? Or to black out her name with a magic marker?
Thanks,
Art Spitzer


Warning:  This email is subject to monitoring by the NSA.

On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
1.  I don't understand Kim Davis to claim "that God would view her issuing such 
licenses with her name on them as authorization."  I can't even imagine what 
that would mean:  That God has a view of when the appearance of a name on the 
"issued in" line of a state licensing form constitutes one human being 
"authorizing" another to perform a marriage?  That God has a view about the 
actual legal operation of Kentucky law?  Of course not.  Davis instead argues 
that she would be sinning because her name would provide legal authorization to 
the minister, under KY law.  That's a secular question.

2. As I understand it, Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her! -- but instead is asking the court to grant her the right to prevent 
all licenses from being issued in the county, on the theory that the 
legislature could, in theory, create the just-not-with-my-name-on-them 
accommodation.

3.  Most importantly, you seem to agree, Eugene, that the very possibility of 
such a legislative fix is not sufficient to give Davis a RFRA right to 
cessation of all issuance of marriage licenses in her county.  Does this mean 
that you disagree with the Alito view of "least restrictive means" -- to 
include all possible legislative alternatives -- which the plaintiffs are 
pressing hard in the contraception cases?

On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Marty doesn't view her issuance of the licenses as 
authorization.  He may well be right that Kentucky law doesn't view it as 
authorization.  But, as I understand it, Kim Davis claims that God would view 
her issuing such licenses with her name on them as authorization.  If that is 
indeed Kim Davis's claim, which it seems to be, then I don't think it matters 
that Kentucky's view is not Kim Davis's view of God's view.

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

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 11:47 AM
To: Law & Religion issues for Law Academics

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

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

The more important point for present purposes, however, is No. 3:  And on that, 
I basically agree with Eugene that if there were a substantial burden here (but 
see above), then perhaps Kentucky law, viewed as a whole (including RFRA), 
could be read to provide that the issuance of a license by Deputy Clerk Mason, 
without Davis's name, is both permissible and results in a valid marriage 
license.  The problem, however, is that Davis herself is strongly resisting 
this reading of Kentucky law.  If she agreed 

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

[Volokh, Eugene]

   I don't think the form displays the name of the current 
officeholder at all prominently, and I doubt that people look enough at their 
marriage licenses and certificates to notice them.  But (1) the proposed 
accommodation would make it possible for Ms. Davis not to have her name listed 
on the form, without stopping other counties' clerks from listing theirs, and 
(2) I agree that it's hard to see building incumbent name recognition as a 
compelling government interest.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 4:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

It is often the case that forms issued by offices of state and local officials 
prominently display the name of the current office holder. My impression is 
that this is a way of creating name recognition for the next election. I would 
guess that many incumbent office holders think there is a compelling interest 
in having the office holder's name on the form-- though maybe it is not a 
compelling "governmental" interest.  And of course Ms. Davis has found another 
way to get name recognition for the next election.

Howard

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene
   It would depend on whether there's a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommo

"Absurd complicity claims"

[Volokh, Eugene]

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

   Eugene

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

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

Sandy

Sent from my iPhone

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

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

   Eugene

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

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

The more important point for present purposes, however, is No. 3:  And on that, 
I basically agree with Eugene that if there were a substantial burden here (but 
see above), then perhaps Kentucky law, viewed as a whole (including RFRA), 
could be read to provide that the issuance of a license by Deputy Clerk Mason, 
without Davis's name, is both permissible and results in a valid marriage 
license.  The problem, however, is that Davis herself is strongly resisting 
this reading of Kentucky law.  If she agreed with that reading, she would be 
thrilled, satisfied, with the current outcome -- Mason issuing licenses without 
Davis's name.  Win-win!  Indeed, before she was held in contempt she would not 
have prohibited Mason from doing just that--citing Kentucky RFRA--and thereby 
avoided prison.

But her attorney instead insists that such licenses are invalid, and Davis 
contends that, under Kentucky law, Mason may not issue them.  The outcome she 
is seeking is not for the court to rule that the issuance of such 
name-of-Davis-free licenses are lawful, but instead that there are to be no 
marriage licenses in Rowan Co

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

[Volokh, Eugene]

 beliefs, cannot 
facilitate (let alone be responsible for the authorizing of the wedding). 
Again, what is the federal judge’s role in determining the meaning of state 
statutes?

Davis has a duty under Kentucky law – she can certainly say she has a duty, it 
seems plain that she does, and it would seem strange for a federal judge to 
hold otherwise – to make sure that licenses issued through her office be valid 
licenses under Kentucky law. If she believes that an altered form of license is 
not valid, she has every reason to prohibit a deputy clerk from issuing such a 
license.

That brings us back them to whether she is entitled to an exemption under the 
KY RFRA from her statutory duty to issue licenses. If so, then her actions make 
perfect sense.

Then the remaining question is whether she is obligated under the US 
Constitution to issue licenses. I don’t think the swimming pool closure cases 
clearly lead to the conclusion that she has an obligation to issue licenses, 
though I need to go back and review them; I disagree with Steve on that point 
if I understand him correctly. Assuming her treatment of all couples the same 
is not unconstitutional discrimination against same-sex couples, then the issue 
would be whether it is an unconstitutional burden on the right to marry for a 
state to ask couples to drive an hour to another office to get a license. That 
seems unlikely.

With regard to Steve’s argument that only animus could be behind Davis’s 
actions, the majority in Obergefell rejected the notion that opposition to 
same-sex marriage was necessarily motivated by animus. Of course, the dissent 
said that the majority didn’t really mean that, and perhaps we are now seeing 
that people think the majority didn’t mean it.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, September 05, 2015 4:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

   It would depend on whether there’s a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA clai

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

[Volokh, Eugene]

e NSA.

On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
1.  I don't understand Kim Davis to claim "that God would view her issuing such 
licenses with her name on them as authorization."  I can't even imagine what 
that would mean:  That God has a view of when the appearance of a name on the 
"issued in" line of a state licensing form constitutes one human being 
"authorizing" another to perform a marriage?  That God has a view about the 
actual legal operation of Kentucky law?  Of course not.  Davis instead argues 
that she would be sinning because her name would provide legal authorization to 
the minister, under KY law.  That's a secular question.

2. As I understand it, Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her! -- but instead is asking the court to grant her the right to prevent 
all licenses from being issued in the county, on the theory that the 
legislature could, in theory, create the just-not-with-my-name-on-them 
accommodation.

3.  Most importantly, you seem to agree, Eugene, that the very possibility of 
such a legislative fix is not sufficient to give Davis a RFRA right to 
cessation of all issuance of marriage licenses in her county.  Does this mean 
that you disagree with the Alito view of "least restrictive means" -- to 
include all possible legislative alternatives -- which the plaintiffs are 
pressing hard in the contraception cases?

On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Marty doesn’t view her issuance of the licenses as 
authorization.  He may well be right that Kentucky law doesn’t view it as 
authorization.  But, as I understand it, Kim Davis claims that God would view 
her issuing such licenses with her name on them as authorization.  If that is 
indeed Kim Davis’s claim, which it seems to be, then I don’t think it matters 
that Kentucky’s view is not Kim Davis’s view of God’s view.

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

   Eugene
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The clerk of court / death warrant hypothetical

[Volokh, Eugene]

   Let me bring up again something that I think I mentioned 
earlier.  Say that in the state of Kennessee, death warrants have to be filed 
in a county clerk's office together with a county clerk's "acknowledgment of 
filing of death warrant" form, and by statute that acknowledgment form has to 
include the county clerk's name (though not her signature).

Say that Jane Smith, a county clerk, believes that the death penalty is murder, 
and thus a grave sin.  She also believes that complicity with the death penalty 
is itself sinful.  She realizes, though, that everyone in society is in some 
measure connected with everything - through paying taxes, through providing 
staple goods and services (such as selling the paper on which a death warrant 
will be printed), and so on.  That is especially so of government employees and 
officials.  So, after reflection, prayer, and fasting, she concludes that it 
would be permissible for her office to file the death warrant, but that having 
her name on an acknowledgement of a warrant authorizing a man's killing would 
be unacceptable complicity.  This is purely symbolic, of course, but she thinks 
this symbolism matters to God, just as symbolism matters in many other contexts 
to many other people.  She goes to state court, arguing that under the state 
RFRA, she should be allowed to have her office file the warrants with a form 
that excludes her name.

Why wouldn't that be a standard, relatively straightforward application of the 
state RFRA?  There is indeed a compelling government interest in making sure 
that the democratically authorized death penalty is implemented, 
notwithstanding the objection of one elected official.  But the requirement 
that the clerk have her office file documents with her name isn't necessary to 
serving that compelling interest; a court order stating that, under the state 
RFRA, the clerk can have her office file the documents without her name 
included, would make clear that the documents without the name are valid.  The 
compelling government interest is served.  The religious objector's religious 
beliefs, however unreasonable some might view them as being, are satisfied.  
Isn't that precisely what state RFRAs are supposed to do?

(Of course, I realize that many people have a very different view of the 
morality of the death penalty and of same-sex marriage - but I take it that 
those differences shouldn't affect the state RFRA analysis.)

Eugene
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RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

 I appreciate Alan’s questions, but isn’t that the sort of thing 
that would arise with virtually every RFRA claim, and virtually every Title VII 
religious accommodation claim?  It’s the same “spectral march,” to borrow Chip 
Lupu’s phrase quoted by Justice Blackmun in Employment Division v. Smith, that 
helped prompt the Smith majority.  It’s the argument that Justice Stevens gave 
in Goldman v. Weinberger.  But RFRAs reject that argument (as does Title VII’s 
religious accommodation claim), and leave it to courts to draw fair lines here. 
 To quote Justice Blackmun in Smith,

That the State might grant an exemption for religious peyote use, but deny 
other religious claims arising in different circumstances, would not violate 
the Establishment Clause. Though the State must treat all religions equally, 
and not favor one over another, this obligation is fulfilled by the uniform 
application of the “compelling interest” test to all free exercise claims, not 
by reaching uniform results as to all claims.

Nor do I see the Clerk’s Office much different from, say, the operation of the 
criminal law (Smith, O Centro) or any other area where we would normally expect 
neutrality.  Indeed, RFRAs and Title VII are expected to be enforced by judges, 
who are likewise supposed to be “scrupulously neutral.”

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

 Eugene



Alan Brownstein writes:

Sorry to be late joining this discussion, but I had two idiosyncratic , left 
field thoughts on this issue.

If an accommodation is created (either through a separate statute or a RFRA 
decision) that permits the county clerk to delete his or her name from marriage 
licenses to mitigate the burden on clerks who oppose same-sex marriage for 
religious reasons, would that decision require similar accommodations for other 
government employees who object on religious grounds to having their name on 
other documents issued by their office. Under establishment clause doctrine 
prohibiting religious favoritism in the granting of accommodations, just how 
broad would an accommodation have to be (either initially or eventually) to 
avoid religious preferentialism concerns.

Also, do the functions of the county clerk’s office make it a government agency 
in which religious accommodations based on substantive disagreements with the 
law might be considered particularly problematic. If the county clerk’s office 
in Kentucky conducts and supervises elections as the clerk’s office does in 
California, we might reasonably require that individuals who hold that office 
must be prepared to set their personal beliefs aside and operate their office 
under scrupulously neutral criteria. Of course, one might distinguish between 
different functions performed by the clerk’s office. Issuing marriage licenses 
might be distinguished from certifying the results of elections.  But this may 
be an office where the appearance of impartiality is particularly important. 
Just a thought.

Alan
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Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I was wondering what list members thought – as a legal matter – 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that’s quite correct.

   But as I understand it, Kim Davis’s stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-to file above).  In particular, 
she says that she would accept the option of “Modifying the prescribed Kentucky 
marriage license form to remove the multiple references to Davis’ name, and 
thus to remove the personal nature of the authorization that Davis must provide 
on the current form” (PDF p. 40); presumably those forms might say “Clerk of 
Rowan County” or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I’m not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign) would sign instead.  Should she prevail, again under a state 
RFRA?

   Finally, say that the County Clerk was an employee rather than 
an elected officeholder, so that Title VII would apply (it doesn’t apply to 
elected officeholders).  Would the County Clerk have a right under Title VII’s 
reasonable accommodation mandate to this sort of exemption?  Compare, e.g., 
American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 
1986) (concluding that government employer had a duty to reasonably 
accommodate, by arranging transfers to other jobs, postal workers who had a 
religious objection to processing draft registration forms); McGinnis v. United 
States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the 
government had a duty to reasonably accommodate, by offering a transfer to 
another window that wasn't used for registration materials); Haring v. 
Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an 
obligation to exempt an employee from having to work on tax-exempt status 
applications from abortion clinics and other organizations that the employee 
thought it sinful to deal with); Best v. California Apprenticeship Council, 207 
Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training 
organization--which was treated by state law as an employer--had an obligation 
to accommodate an apprentice's religious objection to working in a nuclear 
power plant); David Haldane, Panel Backs Fired Vegetarian Bus Driver, L.A. 
Times, Aug. 24, 1996, at A18 (discussing a case in which the EEOC concluded 
that a transportation agency must accommodate a vegetarian bus driver's 
religious objections to handing out hamburger coupons as part of the agency's 
promotion aimed at boosting ridership); Felhaber et al., Bits and Pieces, Minn. 
Employment L. Letter, Sept. 1997 (reporting that the case against the 
transportation agency was settled for $50,000).

   Eugene
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RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>

____
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about the Kentucky County Clerk controversy

   I was wondering what list members thought - as a legal matter - 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that's quite correct.

   But as I understand it, Kim Davis's stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-to file above).  In particular, 
she says that she would accept the option of "Modifying the prescribed Kentucky 
marriage license form to remove the multiple references to Davis' name, and 
thus to remove the personal nature of the authorization that Davis must provide 
on the current form" (PDF p. 40); presumably those forms might say "Clerk of 
Rowan County" or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I'm not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   1.  As best I can tell, County Clerk positions have quite modest 
discretionary authority.  The County Clerk’s job is mostly to administer the 
office effectively.

   2.  But in any event, I’m not sure why the overall nature of the 
elected position should affect much here.  Without a doubt, Title VII’s 
reasonable accommodation requirement doesn’t allow ordinary employees to veto 
office policy generally; at most, it requires the employer to offer low-cost 
accommodations that would still let the job get done.  State RFRAs might or 
might not require more, but probably not much more.  The same, I take it, would 
apply to policymaking employees, or to elected officials.

   The question then is the particular kind of accommodation that 
is sought.  I agree that Davis shouldn’t get an accommodation that would 
involve shutting down marriage licenses in the county.  But if Davis sues under 
the Kentucky RFRA, asking simply that the form not include her name, how is 
that “a veto”?  Why wouldn’t that be precisely the sort of low-cost 
accommodation that a state RFRA would authorize?

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen
Sent: Wednesday, September 02, 2015 9:57 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

"I agree that the key question is how hard it is to provide an accommodation.  
But as I understand the claim, here the accommodation would be easy:  She 
doesn’t demand that marriage licenses be unavailable from her office, or even 
that same-sex marriage licenses be unavailable from her office.  She just wants 
a deputy’s name (or perhaps even the generic “Court Clerk”) to appear on the 
form instead of hers.  How hard is that?"

Fairly? It may be simple from a word processing stand point, but it bakes an 
injury into every marriage license that the county issues from that point 
forward by creating two separate classes of license, one which has the approval 
 of the appropriate minister and one that has it conspicuously absent. This is 
unlike the individual governmental employee in a large office who moves from 
one end of the office to the other to avoid processing a particular kind of 
paperwork - the office as a whole produces the same product, the burdens are 
simply shifted among the various constituent parts of the entity. Here, the 
"product" if you will, is altered significantly. Is it all that different than 
her demanding an accommodation to have the county clerk's office issue civil 
union licenses instead of marriage licenses? There is a distinct difference 
between requesting an accommodation and overriding policy. KRS 402.100 
 requires clerks to "use 
the form prescribed by the Department for Libraries and Archives".

While I suppose one can be elected for a purely ministerial position, there is 
a general assumption that elected positions have significant discretionary and 
therefore policy making powers. Granting accommodations to such persons does 
not grant them an accommodation so much as it grants them a veto, as can be 
seen in Davis shutting down the office entirely.

Kevin Chen, Esq.
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I appreciate Jim’s “separate-but-equal feel” point; but as I 
understand it, the County Clerk would want her name removed from all marriage 
licenses and certificates, not just same-sex ones.  The reason for that, to be 
sure, will be known to be her opposition to same-sex marriage.  But the 
certificates would be the same for all married couples in Rowan County, under 
the accommodation she is suggesting.

   Eugene


Jim Oleske writes:


I'm not sure the distinction would affect the analysis of the hypothetical 
Kentucky RFRA claim you posit. I think if we still had a federal constitutional 
exemption regime, the Court might utilize the distinction to disallow certain 
free exercise claims by government employees, analogizing to the speech 
context. And some state courts might do likewise with state constitutional free 
exercise claims. But to the extent Congress or state legislatures give 
government employees additional protections statutorily, whether through Title 
VII, RFRA, or other similar measures, the distinction might not be a barrier, 
especially given the examples you've found from the Title VII context.

As for the reasonableness of providing the requested accommodation, telling one 
group of citizens that they don't get the certification that state law requires 
all other citizens of their county to receive has a separate-but-equal feel to 
me that I don't think is implicated in any of the Title VII cases cited below.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I agree that the key question is how hard it is to provide an 
accommodation.  But as I understand the claim, here the accommodation would be 
easy:  She doesn't demand that marriage licenses be unavailable from her 
office, or even that same-sex marriage licenses be unavailable from her office. 
 She just wants a deputy's name (or perhaps even the generic "Court Clerk") to 
appear on the form instead of hers.  How hard is that?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Wednesday, September 02, 2015 9:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

But, Eugene, isn't your bearded sheriff different from a clerk refusing to do 
hers job.  The analogy would not be to the beard but to the pacifist sheriff 
who refuses to carry a gun, or the animal rights sheriff who refuses to use 
police dogs, or even the person who believes saving the environment is a 
religious obligation and so as sheriff mothballs all the police cruisers.   An 
accommodation could easily be made for a beard, or halal or kosher food, or 
different Sabbaths.  It is hard do so when the official flat out refuses to do 
the job.

In this case it is beyond marriage equality.  The clerk will not give marriage 
licenses to anyone.  So much for being in favor of marriage, traditional or 
otherwise.

Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law, University of 
Saskatchewan College of Law (2016)
and
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 02, 2015 11:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)&q

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   1.  Lots of employees, elected or otherwise, have substantial 
discretionary authority.  I’m not sure that affects whether a state RFRA should 
apply to them.

   2.  As I understand it, under Kentucky law the documents just 
have to have her name on them because she is the County Clerk.  She doesn’t 
have to hand-sign each one; they are instead signed by the deputy clerks who 
would normally handle such documents.

   3.  The particular proposed accommodation I’m discussing 
wouldn’t involve her name on opposite-sex marriage licenses but not same-sex 
ones – as I understand it, it’s that her name just wouldn’t appear on the 
licenses in that county.

   4.  I don’t think the “currying disfavor” objection really works 
here.  One way or another, the deputies know that their superior is clearly 
against same-sex marriages.  They’d have known it even if she had simply 
publicly said that she’s complying with the law but she thinks same-sex 
marriage is an abomination (something that she would have a First Amendment 
right to say, see Bond v. Floyd).  Whatever the reasons might be for denying 
her an accommodation, I don’t see how concerns about deputies’ worries about 
her disapproving of same-sex marriages would qualify as one such reason.

   Eugene

From: K Chen [mailto:tzn...@gmail.com]
Sent: Wednesday, September 02, 2015 10:29 PM
To: Law & Religion issues for Law Academics
Cc: Volokh, Eugene
Subject: Re: Question about the Kentucky County Clerk controversy

1. Modest or otherwise, there is still that authority. I'm suggesting that as 
the underlying reason that Title VII does not apply to elected officials.

2. The change isn't low cost at all. In the scenario where she simply stops 
signing one set of documents (for same sex couples) and not the other (for 
opposite sex couples), she's discriminating, and baking that discrimination 
into each document. Another way to think about it that, if the county was in 
instead Acme Widget Corporation and Davis a QA specialist, she's not requesting 
Acme's HR change their internal forms on which she signs off on QA so much as 
changing the widgets themselves so they no longer have a QA signature on them. 
Whatever the fiscal cost of such a change, it is a significant one impacting 
the corporation's whole line.

In the situation where she has her deputy sign the other set of documents /can/ 
create that discrimination in a visible way, but even if it doesn't, it 
increases the burden on her deputy clerks significantly. Are they going to have 
to get more deputies? Are there now going to be worries for the deputies about 
currying disfavor for processing something their superior is so clearly against?

I suppose I am begging the question of whether having /anyone/ sign any 
marriage license has a governmental purpose, but I don't imagine it'd be hard 
to find a good one.

Kevin Chen, Esq.

On Thu, Sep 3, 2015 at 1:06 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   1.  As best I can tell, County Clerk positions have quite modest 
discretionary authority.  The County Clerk’s job is mostly to administer the 
office effectively.

   2.  But in any event, I’m not sure why the overall nature of the 
elected position should affect much here.  Without a doubt, Title VII’s 
reasonable accommodation requirement doesn’t allow ordinary employees to veto 
office policy generally; at most, it requires the employer to offer low-cost 
accommodations that would still let the job get done.  State RFRAs might or 
might not require more, but probably not much more.  The same, I take it, would 
apply to policymaking employees, or to elected officials.

   The question then is the particular kind of accommodation that 
is sought.  I agree that Davis shouldn’t get an accommodation that would 
involve shutting down marriage licenses in the county.  But if Davis sues under 
the Kentucky RFRA, asking simply that the form not include her name, how is 
that “a veto”?  Why wouldn’t that be precisely the sort of low-cost 
accommodation that a state RFRA would authorize?

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of K Chen
Sent: Wednesday, September 02, 2015 9:57 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

"I agree that the key question is how hard it is to provide an accommodation.  
But as I understand the claim, here the accommodation would be easy:  She 
doesn’t demand that marriage licenses be unavailable from her office, or even 
that same-sex marriage licenses be unavailable from her office.  She just wants 
a deputy’s name (or perhaps even the generic “Court Clerk”) to appe

RE: Question about the Kentucky County Clerk controversy

[Volokh, Eugene]

   I agree in general, but how would that affect the analysis here? 
 For example, processing draft registration forms is official government 
conduct, as is the IRS’s working on tax-exempt status applications from various 
groups.  But the cases I cited show that Title VII’s religious accommodation 
mandate apply to that, too.  Likewise, if a County Clerk simply wants an 
exemption from the requirement that her own name appear on marriage 
certificates – or death warrants – and a deputy is fine with having his name 
appear instead, why wouldn’t that be a reasonable accommodation, and thus 
mandated by the Kentucky RFRA?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 02, 2015 9:09 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I agree with Eugene that being elected doesn't disqualify one from getting 
exemptions that lower-level officials might get, but I read Howard's email to 
be raising a different distinction that might have an analog in the free speech 
context.

Some speech by a government employee is the employee's speech, and potentially 
protected, but other speech by a government employee is on behalf of the 
government, and not protected. See Garcetti. Likewise, a police officer's 
conduct in growing a beard may qualify as his religious conduct, while a police 
officer's conduct in issuing tickets may qualify as official government conduct 
(even if the police officer signs his name to the tickets, as he's doing so in 
his government capacity).

This might not resolve the RFRA issue, but I do think its a distinction worth 
thinking about.

- Jim

On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That’s certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn’t he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>


From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>)" 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about th