Marci: Any thoughts on how far
you'd take the "religious reasons are rejected whereas secular reasons for the
very same conduct are not . . . trigger[s] strict scrutiny" argument? An
example: Title VII generally bars sex discrimination in employment, but
provides a BFOQ exception. That exception has been read to allow sex
discrimination when the reason is, for instance, privacy, or audience preference
for sex-authentic casting. (See generally http://www.law.ucla.edu/volokh/ccri.htm#IIA3b).
But if a non-religious-institution employer wants to engage in the very same
conduct -- hiring discrimination based on sex -- for religious reasons, for
instance because he has a sincere religious belief that men and women ought not
work together (at least in jobs that require them to be alone together), or that
women with young children shouldn't be working, his "religious reasons are
rejected whereas secular reasons for the very same conduct are not." Does
it follow that Title VII should be subject to strict scrutiny, in the views of
everyone at the Court?
Or how about the duty to
testify? Various secular reasons for a person's refusing to testify are
accepted -- just consider the privileges (which also respect one sort of
religious reason, clergy-penitent confidentiality). But a religious
objection to testify against one's parent or child, or for that matter against
any coreligionist, is not. Strict scrutiny, so that everyone at the Court
would apply Sherbert to it?
Eugene
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Monday, October 31, 2005 8:03 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Alito and ReligionOkay, I'll bite. Why is it obvious that SO'C would not join the FOP opinion? Because she applies strict scrutiny with deference, or because FOP appears to extend beyond Sherbert? It's my view that FOP is a straight-on Sherbert decision -- religious reasons are rejected whereas secular reasons for the very same conduct are not, triggering strict scrutiny. Correct me if I'm wrong, but no one at the Court thinks Sherbert is wrong on that reasoning.Marci
-----Original Message-----
From: Marty Lederman <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Mon, 31 Oct 2005 10:59:44 -0500
Subject: Re: Alito and Religion
Yes, but . . .What are the odds that SOC would recognize the Free Exercise claim in FOP v. Newark?And what are the odds that Alito will embrace the O'Connor opinion rather than the Thomas opinion in Mitchell v. Helms?Very, very low on both accounts, I think -- especially the latter. Chip's correct -- no direct evidence; but I know where I'd place my wager.----- Original Message -----From: "Lupu" <[EMAIL PROTECTED]>To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>Sent: Monday, October 31, 2005 10:40 AMSubject: RE: Alito and ReligionI have taken a quick look at Alito's Religion Clause opinions, and I
have two observations:
1. None of them are about funding issues, so we don't know where
he stands on those (i.e., where would he have been in, for example,
Mitchell v. Helms?). (I think it is very difficult to extrapolate from any
other issues to funding issues.)
2. I have found no opinion of Alito's on Religion Clause questions in
which it is apparent that Justice O'Connor would have disagreed
with him. Does anyone on the list have a different take on that
comparison?
Chip
On 31 Oct 2005 at 9:48, Anthony Picarello wrote:
>
> There are even more to choose from:
> -ACLU v Schundler (rejecting EC challenge to holiday display under
> endorsement test) -ACLU v Wall Twp (rejecting EC challenge to holiday
> display fo! r lack of standing) -Blackhawk v PA (upholding FEC challenge
> by Native American bear owner against PA
> policy forbidding keeping animals in captivity)
> -CH v Oliva (dissent in 6-6 split of 3d Cir en banc involving
> viewpoint discrimination
> challenge to prohibition on 1st graderTs choice to read BeginnerTs
> Bible story (containing no reference to God) in response to
> classroom assignment to pick favorite story).
>
> -----Original Message-----
> From:[EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Marty
> Lederman Sent: Monday, October 31, 2005 9:29 AM To: Law & Religion
> issues for Law Academics Subject: Alito and Religion>
> As most of you probably alread y know, Judge Alito has written
> several very interesting opinions on the religion clauses,
> including, most notably, FOP v. Newark (1999), perhaps the
> strongest post-Lukumireading of the Free Exercise Clause in the
> courts of appeals, and Christian Evangelism Fellowship(2004),
> involving whether a religious organization was constitutionally
> entitled to hand out literature to elementary school students (and
> whether the school district would violate the Establishment Clause
> by permitting such activity).
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
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