Mark: I have been following this issue fairly closely, but I don't recall any opinions involving individualized exemption processes that were "openly critical" of that doctrine. The Newark police case was decided under the normal non-generally applicable rule of Lukumi, not under Sherbert and the "individualized exemption process" doctrine. Which circuit court cases did you have in mind?
By the way, I think Sherbert is now best understood as a categorical rule of non-general-applicability--when government has in place a subjective "individualized process" for determining "good cause" or "hardship" exemptions from some requirement, per se the requirement is not generally applicable and strict scrutiny applies when a religious claimant is denied a "good cause" or "hardship" exemption. Thus, although the normal test for general applicability turns on substantial underinclusion under Lukumi, when government has in place a subjective, ad hoc, "individualized" process for evaluating a claimant's reasons for requesting an exemption or waiver or opt-out, strict scrutiny is triggered when the government decides that religious reasons are insufficient. Rick Duncan --- AJCONGRESS <[EMAIL PROTECTED]> wrote: > It is a matter of some controversy in the circuits > if the sorts of > exemptions you describe would create an > individualized exemption. The Third > Circuit seems to hold that they would (Fraternal > Order of Police v Newark) > but other circuits have been openly critical of that > decision. In the Newark > case, the secular exemption for beards was a health > exemption. > Marc Stern > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] Behalf > Of Rick Duncan > Sent: Friday, March 12, 2004 10:41 AM > To: Law & Religion issues for Law Academics > Subject: RE: Religious history school projects > > One possibility for a free exercise opt-out from a > mandatory field trip to a religious site (or perhaps > to a particular class assignment) is to check to see > if the school has an individualized process for > exemptions. For example, if the school allows > students > to miss a field trip if they are sick, or to attend > the funeral or wedding of a close relative, it must > grant a religious exemption or pass strict scrutiny > under Sherbert (as Sherbert was transfigured in > Smith > and Lukumi). For a very good 10th circuit opinion in > support of this result, see the Axson-Flynn case > (the > case about the girl who refused to curse God when > ordered to do so by her acting class professor). > > Cheers, Rick Duncan > > > --- AJCONGRESS <[EMAIL PROTECTED]> wrote: > > See Leebart v.Harrington,327 F33d 134(2d Cir > > 2003);Altman V. Bedford CSD, > > 245 F3d 49(2d Cir. 2001);Skoros v. City of NY > (EDNY > > 2004);Brown v. Hot, Sexy > > and Safe, 68 F.3d 525(1st Cir 1995).To these > should > > be added the long list > > of cases rejecting parental objections to > particular > > textbooks and assigned > > readings. > > Marc Stern > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] > Behalf > > Of Marty Lederman > > Sent: Thursday, March 11, 2004 7:50 PM > > To: Law & Religion issues for Law Academics > > Subject: Re: Religious history school projects > > > > See generally Kent Greenawalt, Teaching About > > Religion in the Public > > Schools, 18 J.L. & Pol. 329 (2003); Jay D. Wexler, > > Preparing for the Clothed > > Public Square: Teaching About Religion, Civic > > Education, and the > > Constitution, 43 Wm. & Mary L. Rev. 1159 (2002). > > ----- Original Message ----- > > From: Will Linden <mailto:[EMAIL PROTECTED]> > > To: [EMAIL PROTECTED] > > <mailto:[EMAIL PROTECTED]> > > Sent: Thursday, March 11, 2004 3:49 PM > > Subject: Religious history school projects > > > > On another list, folk were bitching about > reported > > attempts to > > "indoctrinate students in Islam". Another > > contributor wrote about a > > fourth-grade class which had an assignment to > "make > > a model of a babylonian > > ziggurat...accurate down to the the altar and > > accutrements used to worship > > the Babylonian gods...including human sacrifice, > > etc... The teacher failed > > him on the project when he refused to do it > because > > the material "scared > > him." When the mother asked if the child could > be > > allowed to do some other > > project, the teacher refused, and assigned the > child > > a zero." > > > > This is, of course, "anecdotal". However, it > drew > > yet another post noting > > that "In California the 4th graders have to do a > > California Missions > > project, and often they go on a field trip to see > a > > Mission. I have never > > heard of anyone of refusing to build a Mission > > project on religious grounds. > > Since the Missions, like the Ziggurats, are part > of > > the history curriculum, > > it would be an interesting question." I agree that > > it would, and herewith > > ask opinions of the list on whether the "Mission" > > unit raises First > > Amendment issues. (And yes, I have permission to > > cite it here.) > > > > _____ > > > > _______________________________________________ > > To post, send message to > [EMAIL PROTECTED] > > To subscribe, unsubscribe, change options, or get > > password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > _______________________________________________ > > To post, send message to > [EMAIL PROTECTED] > > To subscribe, unsubscribe, change options, or get > > password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > ===== > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "When the Round Table is broken every man must > follow Galahad or Mordred; > middle things are gone." C.S.Lewis > > "I will not be pushed, filed, stamped, indexed, > briefed, debriefed, or > numbered." --The Prisoner > > __________________________________ > Do you Yahoo!? > Yahoo! Search - Find what you're looking for faster > http://search.yahoo.com > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get > password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get > password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ===== Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone." C.S.Lewis "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __________________________________ Do you Yahoo!? Yahoo! Search - Find what you’re looking for faster http://search.yahoo.com _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
