Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are "against the government" Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to "fix" this aspect of the state RFRAs.
There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? Marci 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 http://sol-reform.com -----Original Message----- From: Ira Lupu <icl...@law.gwu.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark <mark.scarbe...@pepperdine.edu> wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group might, for sincere religious reasons, refuse to place children with unmarried couples and might prefer to place children with married couples rather than single adults. (Put aside any Free Exercise claim.) A court would violate the statute if it recognized a common law cause of action under which unmarried couples and single people could sue the religious group for damages or for an injunction. Similarly, a county ordinance providing for such a private cause of action would be inconsistent with the state statute (a superior source of law), and the religious organization would have a good defense against such ! a suit. And a general state antidiscrimination statute providing a private right of action for marital status discrimination ought to be unavailable as against the religious group, because the state RFRA would create an exception to the general statute. Along the same lines, a state RFRA that would prevent a state human rights commission from fining a religiously dissenting wedding photographer, one who refuses to create celebratory art for a same sex wedding, should be read to limit a general antidiscrimination law that might otherwise provide the same sex couple a private right of action. Of course there have to be limits to this analysis under state RFRAs. I should not have to show that I have a compelling interest in keeping my neighbor off of my property, just because the neighbor sincerely believes he has a religious duty to worship an oak tree that is in my back yard (and to do so every morning at dawn while kneeling in front of the tree). That is, I should be able to sue the neighbor and seek an injunction, if necessary, or damages if there are any, without the neighbor being able to raise a RFRA defense (though it would be possible to treat the state's interest in letting me sue to protect my property rights as a compelling interest). So what is the difference? Is it a traditional private right/liberty/property baseline difference? Perhaps a state RFRA shouldn't be interpreted to apply to private suits brought to vindicate traditional background rights. (Cf. the treatment of takings in Lucas v. So. Car. Coastal Council, in which the court relied on background property/nuisance principles.) Legislators wouldn't have expected such an application. They don't think of the right to keep someone off your property as a government-granted right, whatever political philosophers and law professors might believe. But a RFRA could have been expected otherwise to rein in state regulation of religious conduct, including regulation by way of statutorily or judicially created private rights of action (such as the dramatic expansion of " public accommodation" principles beyond hotels, restaurants, common carriers, etc.). Reining in that kind of regulation as applied to religious conduct is the main point of a RFRA, isn't ! it? Thoughts? Citations to relevant discussions? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law _______________________________________________ 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg _______________________________________________ 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.
