I think we agree. Let me say that I strongly support RFRA and state RFRAs, and I don’t think they change the issues you talk about in the first paragraph at all. Government-sponsored religious prayers, symbols, and teachings are still out. RFRA and the state RFRAs explicitly state that they don’t change the Establishment Clause (and they couldn’t even if they tried—it would just make them unconstitutional). RFRA and state RFRAs protect the freedom of individuals and voluntary groups, not the state.
In the second paragraph, you point out how the Establishment Clause protects people from the psychological harms in Schempp and Trunk (the pending case), but not in Elane Photography. I think the explanation lies in state action. The state rejecting your religious beliefs or your sexual orientation is a deep harm, and totally unnecessary to governance. Even without coercion, that should be actionable (I think). But individual people rejecting your religious beliefs or your sexual orientation is different. It’s still an insult and it’s still painful, but they are people with rights too. As for your final paragraph, I cheerfully submit that it’s all a mess, at least somewhat, and that the Court would probably agree. But has it ever been different? =) Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Monday, June 18, 2012 7:36 PM To: Law & Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, >From the Religion Clause blog and the organizations that I belong to, it seems that most of the "action" is in government sponsored prayers (schools and city councils), crosses and other religious icons on public property and schools trying to teach the bible or crationism/ID/anti-evolution, with the kinds of concerns that I mentioned rare. So my fear of RFRA's, especially the simple burden ones, may border paranoia. On the other hand, the religious war between the Christian right and secularists -- while not raging -- is a bit warm. Which brings me to your comments in the last paragraph. Your comparison of the harm of "pure insults" (not protected) with the harm of (non-economic loss) discrimination on the basis of religion has a lot of truth to it -- both psychological harms. But the reality is (at least from my Atheistic perspective) that "religious interests" harms are also psychological (i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad cross case whose petition for cert is pending, or the student who wants to pass out candy canes with a Christian message, if it's not money, its hurt feelings by one side or the other. However, under current law, free speech insults are not actionable but unwelcome contact with a government sponsored prayer or religious symbol is. The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and Free Exercise Clause jurisprudence -- to the extent that those who are asserting the FEC rights are engaging in public services (i.e., as distinguished from acts in their home or in houses of worship) -- is getting messier. What's happened to the bright lines of bar exams questions? I have a good idea of what the religion clauses should mean, but I'm fuzzy what they mean to nine Justices. Best wishes, Bob On June 17, 2012 at 4:15 PM Christopher Lund <l...@wayne.edu> wrote: Bob, I think you’re right that these are the kinds of hot-button controversies where state RFRAs could realistically come into play. It’s not spousal abuse or men marrying 12 year old children, as some of the commercials talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/). Another point worth stressing here, I think, is that the situations you mention make up a large part of the discussion but a small fraction of the actual cases. Elane Photography is the only case like this I remember where the state RFRA claim was the ground of decision. I wish these cases weren’t driving the discussion, but that’s probably inevitable. Maybe we should just aim for state RFRAs with broad “civil rights laws” exceptions. (Texas’s RFRA has such an exception.) To get to your post, I’ve seen claims like #1-#3, though not #4. It seems to me like there could be a “burden” on religious liberty in those cases. Whether there’s a compelling interest will depend on the things that Eugene noted earlier. It would also depend on the facts of the cases. If the pharmacist refuses to dispense plan B but can turn over the job to a pharmacist who will, then a religious exemption seems sensible to me. If not, not. There are very real harms that are present in these cases, though they often aren’t economic harms. In Elane Photography, if I remember right, the lesbian couple sent the inquiry a year in advance of their wedding, and got a negative response from the religious photographer that same night. There’s no actual deprivation there—there’s no reliance, plenty of time to find a new photographer, and the religious photographer apparently wasn’t cheaper or better. But there’s tremendous expressive harm. It’s a terrible insult to be told that your relationship, your marriage, your love is illegitimate. Especially by someone who might be linked to the political groups that have denied your marriage legal recognition and worked for your marginalization. That’s a big part of what makes this insult really hurt. But the American tradition protects pure insults—the religious photographer who says, “I’ll do your wedding because the law compels me to, but I find your relationship morally wrong for the following reasons . . .” can’t be fined or prosecuted, I assume. So the rationale for exemption, I think, depends heavily on the idea that in such cases of mostly expressive harm, the government shouldn’t be overriding the religious interest. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Friday, June 15, 2012 3:19 PM To: Law & Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that "burden" type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a "compelling governmental interest" than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM Christopher Lund <l...@wayne.edu> wrote: Obviously the sexual abuse of children is tragic and criminal. But I still am not getting how state RFRAs have protected it or encouraged it. State RFRA cases are more boring than those opposed to Measure 3 might think. Plaintiffs generally lose their claims; they sometimes win, but they have not won anything remotely like what NARAL was fearing. (In that South Dakota piece—which is a bit dated now—I slog through the cases and provide citations, to the extent people are interested.) I counted somewhere around 25 Florida state RFRA cases, for example. Of those 25, plaintiffs won 1 on state RFRA grounds. That case involved a church that wanted to feed the homeless in a public park, despite a city rule saying that parks could not be used for social-service purposes. The church didn’t win the right to use the park of its choosing, but the trial judge enjoined the city to let them use some park at some time. The case is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001). Of course, plaintiffs sometimes ask for things they can’t possibly get under state RFRAs—the right to use marijuana while driving, for example, keeps coming up. But that’s a frivolous claim by a desperate criminal defendant, and it simply loses. State RFRAs have been asserted as defenses in some of the sex abuse cases. But usually such claims don’t even get separate analysis, and they certainly don’t win. If people like Marci will be more comfortable with a state RFRA with a child safety exception, I’d gladly do it. Not because I think it’s necessary, but because I think it isn’t: A state RFRA with a child safety exception will be treated exactly like a state RFRA without one. Children will be protected in any event. It’s also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed—and that has happened. Concerned with a pending suit by a Muslim to claim a drivers’ license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida’s RFRA. Judging by Florida’s reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. Best, Chris
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