Re: The Merits in Newdow

[Marty Lederman]

1.  Section 3 of RLUIPA does not purport to protect Free Exercise rights; i.e., it's not section 5 legislation.  It is, instead, a statute that protects the manner in which federal funds are used.   2.  I agree that CT almost certainly would agree that certain religious accommodations are not forbidden by the Establishment Clause -- e.g., Virginia's own provision of kosher meals to some religious prisoners.   3.  Virginia's argument, however, is that the Establishment Clause in addition places restraints on the manner in which the federal government may dictate the accommodation policies of state governments.  I do not agree with this argument, nor do I think that RLUIPA section 3 "dictates" anything (the Virginia Department of Corrections can avoid the operation of RLUIPA simply by declining federal funds -- at least where, as here, there is no allegation that its denial of accommodation affects interstate commerce).  But there are distinct echoes of that argument in Justice Thomas's federalism-based theory of the Establishment Clause in his opinion today. ----- Original Message ----- From: marc stern To: 'Law & Religion issues for Law Academics' Sent: Monday, June 14, 2004 2:41 PM Subject: RE: The Merits in Newdow Why? It is Virginia that has set up an establishment clause defense to the federal act. The Act itself purports to protect Free Exercise rights and Thomas does not contend these are not incorporated .And Thomas ash also joined opinions suggesting that what is permitted accommodation is not necessarily forbidden by the Establishment Clause. The prisoner plaintiff( respondent)is not contending that Virginia’s’ limited accommodation policy establishes religion by preferring main line faiths. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Monday, June 14, 2004 1:36 PM To: Law & Religion issues for Law Academics; David Cruz; [EMAIL PROTECTED] Subject: Re: The Merits in Newdow   Justice Thomas, by the way, would also hold that the Fourteenth Amendment does not incorporate the Establishment Clause:  "Quite simply, the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right."  This suggests that Justice Thomas might be very sympathetic to the State of Virginia's federalism-based Establishment Clause argument in the (likely-to-be) upcoming case challenging the constitutionality of RLUIPA, Bass v. Madison.   ----- Original Message ----- From: Marty Lederman To: David Cruz ; [EMAIL PROTECTED] ; Law & Religion issues for Law Academics Sent: Monday, June 14, 2004 11:56 AM Subject: The Merits in Newdow   The collection of concurrences on the merits are quite interesting.  The Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the Pledge is OK in schools because "under God" is "not endorsement of any religion," but instead "a simple recognition of the fact [that] '[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'"    Justice O'Connor joins the Chief's opinion, but writes separately to suggest that the Pledge in schools is ok only because of a confluence of "four factors" that will virtually never again appear in combination in any other case.  This result derives directly from pages 24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.   Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if Lee v. Weisman was correctly decided, then public schools may not lead students in daily recitation of the words "under God."  Thomas, however, would overrule Lee.       ----- Original Message ----- From: "Marty Lederman" <[EMAIL PROTECTED]> To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> Sent: Monday, June 14, 2004 11:42 AM Subject: Links to Newdow Opinions   > It appears that those links did not work.  All of the opinions can be found > here: > > http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html > _______________________________________________ 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

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