Whoops, just noticed, after reading this, that one of the names was chosen unwisely: Alan and Betty are my standard names for such hypotheticals, and not intended to be a reference to any real Alans on this thread.
Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene > Sent: Sunday, June 21, 2009 11:34 AM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > A hypothetical: Alan wants to picket an abortion provider's home. > Betty > wants to picket an anti-abortion leader's home. Alan's motivation is > religious, > Betty's is secular philosophical. The city has a content-neutral ban on > residential > picketing, and the state has a RFRA. > > Can it really be the case that Alan would have a right to picket for > religious > reasons, but Betty wouldn't have a right to picket for secular reasons? Or > that > both would have this right, because RFRA would require invalidation of the > entire > scheme, as the least restrictive means of serving both the interest in > protecting > religious objectors and the interest in preventing discrimination between > religious > and secular speakers? (I assume that it's far from clear that a residential > picketing ban would pass strict scrutiny, as opposed to the intermediate > scrutiny > applied in Frisby v. Schultz.) > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > > Sent: Sunday, June 21, 2009 10:53 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Good point, Mark. I think statutes like the one reviewed in Texas Monthly > > that > > facially discriminate in favor of religious speech are going to be struck > > down. A > > more generic religious liberty statute, like a state RFRA, is more > > complicated. > > > > Let's suppose a city is told that it can not enforce its zoning ordinance > > against a > > Bible study group because of a state RFRA. Then a book club challenges the > > application of the zoning ordinance to its activities on the grounds that > > Bible > study > > groups had been held to be exempt from the zoning ordinance under RFRA. > One > > could argue that a court could resolve this dispute by refusing to allow > > the city > to > > enforce the zoning ordinance against the book club without giving the RFRA > > statute a narrow construction. But is that the best result? Now other > > cities in the > > state have to figure out how the state RFRA applies to their content neutral > laws > > that regulate speech and the extent to which exempting religious speech from > > those laws under RFRA requires them to grant additional exemptions to other > > speakers. It might make more sense to construe the RFRA law not to require > > exemptions for religious speech. > > > > As an aside, I might add that when California was considering a state RFRA > law, > > proponents of the law conceded that it would not apply to content neutral > speech > > regulations in part because such applications would be unconstitutional.The > > contrary argument, that RFRA would require the state and cities to privilege > > religious speech, was a very hard sell politically. > > > > Alan Brownstein > > ________________________________________ > > From: religionlaw-boun...@lists.ucla.edu > > [religionlaw-boun...@lists.ucla.edu] > > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > > Sent: Saturday, June 20, 2009 11:18 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Or perhaps to strike down the refusal to extend the exemption to relevantly > > similar nonreligious speech (though I suppose Texas Monthly may be in some > > tension with that approach)? > > > > Mark Scarberry > > Pepperdine > > > > _____ > > > > From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan > > Sent: Sat 6/20/2009 9:14 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > > > > > I agree with Mark that Smith allows the political process to deal with > > religious > > exemptions -- as long as those exemptions do not violate any other > constitutional > > guarantee. It may well be that the state has a choice as to how it can > > respond > to > > a claim that it discriminates in favor of religious speech. Instead of > > standing by > > the discriminatory exemption -- which would require a court to invalidate > > it -- it > > could generalize the exemption to apply to all expressive meetings. But if > > the > > state refuses to extend the exemption, doesn't that require a Court to > > subject > the > > exemption to strict scrutiny and, presumably, to strike it down? > > > > Alan Brownstein > > ________________________________________ > > From: religionlaw-boun...@lists.ucla.edu > > [religionlaw-boun...@lists.ucla.edu] > > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > > Sent: Saturday, June 20, 2009 6:25 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > If Smith is going to be used to justify a constitutional prohibition on > > religious > > exemptions, then it is even worse than I thought. But the point of Smith, > > as I > > understand it, is precisely to allow the political process to deal with > > requests for > > political exemptions. To the extent that land use laws applied in a > > supposedly > > neutral way would prevent religious groups from meeting, it seems that the > > granting of an exemption by the local government would be permitted by > > Smith. > > Whether the granting of such an exemption then would require that similar > > non- > > religious group meetings would need to be permitted is an interesting > > question > > that could affect the outcome of the political process with respect to > > allowing > > exemptions for religious meetings but should not invalidate such exemptions. > At > > least that's my initial take. > > > > Mark Scarberry > > Pepperdine > > > > _____ > > > > From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan > > Sent: Sat 6/20/2009 5:52 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > > > > > If we had a constitutional regime that confers special protections for non- > > expressive religious exercise against neutral laws of general > > applicability, the > > issue of how to treat expressive religious exercise would require some > > difficult > > line drawing and analysis. But since Smith controls the meaning of the free > > exercise clause, there is no special federal constitutional protection for > > religious > > exercise -- whether it is expressive or not. Under this regime a statute > > that > > confers special protection for expressive religious exercise is going to > > confront > > serious and unavoidable establishment clause and free speech clause issues, > > isn't it? > > > > Alan Brownstein > > ________________________________________ > > From: religionlaw-boun...@lists.ucla.edu > > [religionlaw-boun...@lists.ucla.edu] > > On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] > > Sent: Friday, June 19, 2009 9:05 AM > > To: 'Law & Religion issues for Law Academics' > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Let's see ... speech is fully protected, but religious speech is even more > > fully > > protected, indeed advantaged.Can that be right? Yes, if the Free Exercise > > Clause confers special protections for religious speech exercise -- a not > > implausible theory. Yet I have always thought that the non-establishment > clause > > could justify greater or additional limitations on religious speech. Could > > both be > > true? I don't see any reason why not since the two religious clauses are > > often, > > though not always, at war with one another because they serve two distinct > > purposes. > > > > Randy Bezanson > > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene > > Sent: Friday, June 19, 2009 10:05 AM > > To: Law & Religion issues for Law Academics > > Subject: "A Bible study group and a book club are not treated the same" > > > > I haven't read the whole opinion yet, but in my skim I was struck > > by this > line: > > > > "The trial court appears to have been troubled that an operation > > which can > > be and often is conducted for purely secular purposes could be entitled to > > increased protection from government regulation if conducted for religious > > reasons. But TRFRA guarantees such protection. Just as a Bible study group > > and a book club are not treated the same, neither are a halfway house > operated > > for religious purposes and one that is not. Under Smith, the Free Exercise > Clause > > does not require strict scrutiny for religious activity affected by neutral > > laws of > > general application,66 but TRFRA imposes the requirement by statute." > > > > Is it clear that it's constitutional, given the Free Speech Clause > > and the > > Establishment Clause, and the position of 6 of the votes in Texas Monthly v. > > Bullock, for the law to treat Bible study groups better than book clubs? > > > > Eugene > > > > > > > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Douglas Laycock > > Sent: Friday, June 19, 2009 7:58 AM > > To: religionlaw@lists.ucla.edu > > Subject: Texas RFRA > > > > The Supreme Court of Texas has unanimously given the Texas RFRA its > > intended meaning to provide real protection for exercises of religion. > > Barr v. > City > > of Sinton, Link to opinion below. The case involves a religious halfway > > house > in > > a small town in South Texas. The city made no serious effort to prove a > > compelling interest in closing the halfway house; its main argument seemed > > to > be > > that there was no burden because the halfway house could leave town, and > that > > that Texas RFRA should not apply to zoning anyway. > > Most of the opposition to Texas RFRA was from neighborhood associations > > worried about land use. The lead sponsor in the House told me that if > > people > got > > the idea that this meant that black churches could locate in white > neighborhoods, > > the bill would be dead. The compromise was to provide that cities would > > have > no > > less land use authority than they had had under federal law on March 17, > > 1990 > > (the day before Smith.) The land use folks claimed that Sherbert and Yoder > had > > never applied to them; the bill's supporters claimed that Sherbert and Yoder > had > > been a generally applicable test that applied to all regulation, including > > land use > > regulation. The state supreme court just resolved that argument in favor > > of the > > bill's supporters. > > http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm > > > > Douglas Laycock > > Yale Kamisar Collegiate Professor of Law > > University of Michigan Law School > > 625 S. State St. > > Ann Arbor, MI 48109-1215 > > 734-647-9713 > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > > > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > > > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.