It has certainly made a difference in RLUIPA cases. I have to say I find it a little hard to believe these cases can be generalized across states given how few there are and how different each state operates procedurally, but I look forward to reading your article and will keep an open mind.
Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 1:18 PM, Christopher Lund <ed9...@wayne.edu> wrote: > >> Again I have not seen any evidence that differences in phrasing--"burden," >> "substantial burden," "restriction on religious liberty,"--have caused any >> differences in result (or even reasoning). If you have examples, I'd love >> to know about them. If not, it suggests the differences in phrasing don't >> matter. That's my intuition from the cases I've read. But it may be wrong, >> and I'd like to know if it is. >> >> On Dec 2, 2013, at 12:44 PM, Marci Hamilton <hamilto...@aol.com> wrote: >> >>> Chris-- As I mentioned, CT's has been amended through interpretation You >>> are right about Alabama. >>> >>> I actually think these terms matter and removal of substantial violates >>> the Establishment Clause but it also shows the endless push by religious >>> entities to overcome all laws. I assume the next wave will be a push to >>> interpret compelling to mean absolutely necessary. That is not intended >>> to be snide. Just an observation. The Framers expected all those w power >>> to >>> push it as far as they could. They were right. >>> >>> I look forward to reading your article. >>> >>> Marci A. Hamilton >>> Verkuil Chair in Public Law >>> Benjamin N. Cardozo Law School >>> Yeshiva University >>> @Marci_Hamilton >>> >>> >>> >>> On Dec 2, 2013, at 12:01 PM, Christopher Lund <l...@wayne.edu> wrote: >>> >>>> Connecticut and Alabama use "burden" instead of "substantial burden." New >>>> Mexico, Missouri, and Rhode Island don't use the burden terminology--they >>>> speak of "restrictions on religious liberty." To me, that would seem like >>>> it jettisons the requirement of burden altogether, but others may >>>> disagree. Two of the substantial burden states—Arizona and Idaho—say >>>> explicitly in their statutes that the requirement is only meant to weed >>>> out "trivial, technical, or de minimis burdens." I talk about the >>>> differences, and have a handy though dated chart, in this piece, >>>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. >>>> >>>> >>>> >>>> It's a mess, in other words. And I have to say, I don't know how much any >>>> of these differences matter. When I looked at state RFRA cases a few >>>> years back, I found these differences in wording didn't matter much. They >>>> are rarely even talked about. This may be an issue where academics care >>>> quite a bit, but judges do not. Judges are heavily influenced by the >>>> facts of these cases; the wording of the RFRAs, I think, is secondary. >>>> >>>> From: hamilto...@aol.com >>>> To: religionlaw@lists.ucla.edu >>>> Sent: Monday, December 2, 2013 10:43:51 AM >>>> Subject: Re: Letter of 16 law professors in support of removing >>>> "substantial" as modifier of "burden" in state RFRAs >>>> >>>> The WIs bill was never passed to my knowledge, but if it went through >>>> under the radar, I would be interested. >>>> Conn did not include the term in one of the earliest bills, but the Conn >>>> Supreme Court read it in. To my knowledge, only >>>> KY passed such a bill, and only over the Governor's veto. >>>> >>>> Marci A. Hamilton >>>> Paul R. Verkuil Chair in Public Law >>>> Benjamin N. Cardozo School of Law >>>> Yeshiva University >>>> 55 Fifth Avenue >>>> New York, NY 10003 >>>> (212) 790-0215 > _______________________________________________ > 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.
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