And, in my experience, it's an uncommon Roman Catholic who remembers/knows
what he or she celebrates on the Feast of the Immaculate Conception (just a
few days ago, on Dec. 8!). I'm aware of a case in Maine in which the
government lawyer attempted to undermine a Catholic plaintiff's
religion-based claim in a tuition-assistance-related case by catching the
plaintiff in a mistake about that Feast. (If I remember correctly, the
government lawyer was wrong about it, too.)
More seriously, though: It doesn't seem to me that the undeniable fact of
many believers' ignorance or forgetfulness regarding theological or
historical details should be seen as weakening the case for (in appropriate
cases) religion-specific asylum claims.
Sincerely (!),
Rick
On Fri, Dec 11, 2015 at 10:28 AM, Rick Duncan <nebraskalawp...@yahoo.com>
wrote:
> I remember Prof. R.C. Sproul once mentioned that he often starts some of
> his theology classes in seminary by asking students to list the 10
> Commandments. Many of these *theology students* can't name more than a
> few!
>
> Probably a majority of Christians could not name all 12 Apostles. Maybe 5
> or 6--but not 12.
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> ------------------------------
> *From:* James Oleske <jole...@lclark.edu>
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
> *Sent:* Thursday, December 10, 2015 8:22 PM
> *Subject:* Re: the unconstitutionality of barring Muslims from entering
> the U.S.
>
> Thanks, Chip. I can see why sincerity might be more difficult to judge in
> the denial-of-affiliation situation than in the claim-of-affiliation
> situation, but I'm not sure a sincerity inquiry is impossible in the former
> situation. And I do wonder how often the line between a permissible
> sincerity inquiry and an impermissible judicial development of a religious
> test gets blurred in the latter situation. In one BIA decision affirmed by
> the Ninth Circuit, an immigration judge included this explanation for why
> it had found that the claimant had not converted to Christianity:
>
> "The respondent cannot even name the 12 apostles of Jesus Christ. With the
> Court's understanding that Christianity begins with the life and teaching
> of Jesus Christ in the New Testament, the 12 apostles have some of the most
> important, if not the most important, writings of Christianity. The Court
> has serious doubt in the respondent's conversion to Christianity when he
> cannot even give the names of the 12 apostles of Jesus Christ."
>
> Toufighi v. Mukasey, 538 F.3d 988, 991 (9th Cir. 2008) (affirming the
> BIA's decision after finding that the court lacked jurisdiction to review
> the IJ's factual findings). But see id. at 1000 (Berzon, dissenting)
> ("[T]he question is *not* what Toufighi believes but what Iran
> understands him to believe—or, more accurately, *not* to believe. It is
> thoroughly plausible that because he attends Christian services and belongs
> to a Christian church, Toufighi will be taken to have renounced Islam.
> Neither the BIA's nor the IJ's 'opinion[s] ... consider[ed] what could
> count as conversion in the eyes of an Iranian religious judge, which is the
> only thing that *would* count as far as the danger to [the petitioner] is
> concerned.' Even if his conversion is not 'genuine,' he remains at risk.")
> (quoting Bastanipour v. I.N.S.*,* 980 F.2d 1129, 1132 (7th Cir.1992)).
>
> Putting aside the dispute between the majority and dissent in Toufighi
> over the relevance of the IJ's factual finding, I think the finding itself
> could be viewed not only as a questionable sincerity finding, but also an
> impermissible assumption of judicial authority to determine the religious
> importance of the 12 apostles.
>
> - Jim
>
>
>
>
> On Thu, Dec 10, 2015 at 3:46 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
> Thanks, Jim, for the kind words about the book.
>
> On the asylum and refugee problem -- someone asked me about this
> yesterday, off-list. I answered with a variation on the following:
> In persecution cases, someone is claiming to be of a certain faith (or at
> least that she fears persecution because others perceive her to be of that
> faith). Sincerity is an appropriate inquiry into either of those
> assertions. But the context of the Trump proposal involves someone denying
> that she is a Muslim. If the person seeking entry denies affiliation, what
> questions can you ask? The government may not assert that anyone who
> believes X is therefore a member of Faith Y. If immigration judges probe
> affiliation, I'll bet they don't ask whether the applicant believes in the
> divinity of Christ, or believes in the inviolability of teachings in the
> Koran. Reaching conclusions based on those questions would involve the
> government taking a position on matters disputed within the faith itself.
>
> On Thu, Dec 10, 2015 at 5:23 PM, James Oleske <jole...@lclark.edu> wrote:
>
> I agree with Marty that this whole discussion is unnerving, but given the
> initial polls showing (1) substantial majority support for Trump's proposal
> among likely Republican primary voters, as well as support from a sizable
> minority of likely Democratic primary voters, and (2) Trump reaching new
> heights in the GOP primary, I think a discussion of the constitutionality
> of Trump's deplorable proposal is inevitable.
>
> And even putting Trump's proposal aside, some of the proposals from more
> "conventional" candidates would seem to raise similar issues to those that
> we've been discussing here. For example, Governor Bush recently indicated
> that Christian refugees from Syria should receive preference over other
> Syrian refugees because there are "no Christian terrorists in the Middle
> East." When asked by a reporter about how the screening process would work,
> Bush responded: "You’re a Christian — I mean, you can prove you're a
> Christian. You can’t prove it, then, you know, you err on the side of
> caution.”
>
> This approach would potentially implicate both the "ecclesiastical
> question" rule and the "denominational discrimination" rule (assuming
> persecuted Christians are given preference over persecuted Yazidis,
> Shiites, etc.). Which brings us back to the question of whether these rules
> are best viewed as structural constraints on the federal government, rather
> than rights-oriented rules, and thus have extraterritorial reach.
>
> On the issue of the Establishment Clause's extraterritorial reach, many
> thanks to Paul and Jesse for the suggested resources. In the meantime, on
> the broader structural-v-rights issue, I went back and took another look at
> the opening chapters of Chip and Bob's book, and I commend to list members
> their discussion of the "evolution of rights talk as a mode of
> Establishment Clause discourse," which they counter with "an alternative
> account of nonestablishment, one framed as a jurisdictional limitation on
> civil authority." (Note: As I was writing this, Chip and Bob posted their ACS
> piece
> <http://www.acslaw.org/acsblog/the-legality-of-muslim-exclusion-part-ii-the-establishment-clause>
> elaborating on the applicability of their approach to the Trump proposal.)
>
>
> Finally, a question for those familiar with asylum and refugee
> proceedings: when addressing claims based on religious persecution, do the
> proceedings typically focus on how a claimant is likely to be treated by
> their home country based on their perceived religion or also on whether the
> claimant actually qualifies as a member of the persecuted religious group?
> To the extent the proceedings focus on the latter question, does that raise
> the problem Chip and Bob have flagged of the government answering
> ecclesiastical questions? (In some initial research, I have found a couple
> Seventh Circuit decisions and one Ninth Circuit dissent indicating that the
> proceedings should not focus on the latter question, albeit without any
> mention of the Establishment Clause).
>
> - Jim
>
> On Thu, Dec 10, 2015 at 7:24 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> This post by Steve Vladeck strikes me as just right:
>
>
> https://www.justsecurity.org/28221/missing-constitutional-analyses-donald-trumps-muslim-immigration-ban/
>
> Three relatively minor additional points:
>
> 1. I don't believe there have ever been any Supreme Court cases in which
> the "plenary power" doctrine was ever applied as to expressly *racial or
> religious* terms of exclusion; so even as a matter of *stare decisis*,
> there's nothing there.
>
> 2. As Paul suggests, when it comes to the EC, there is the additional
> complication of whether and how it applies to aliens overseas -- the old
> *Lamont
> v. Woods* question. This has practical implications, in that the US
> government occasionally spends money overseas to promote certain forms of
> religion that it could never do here in the States.
>
> 3. There's something a bit unnerving, frankly, about so many of us ConLaw
> academics treating this question so seriously. Lends the whole thing an
> air of "Trump has raised a serious, close, contested question," which, of
> course, implies that this is something that should even be a topic of
> public debate, rather than dismissed straight away as an abomination. Not
> saying we shouldn't set the record straight once it's being discussed --
> Steve and Chip are 100% right not to let the Posner/Spiro view go
> unchallenged. But the whole discussion is deeply disturbing (as are the
> Court's precedents, of course!).
>
> On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz <phorw...@hotmail.com>
> wrote:
>
> I'm sorry not to see reference in the discussion to preexisting scholarly
> discussions of the question of the extraterritorial reach of the EC or
> other clauses of the First Amendment. No offense to the worthy statements
> of those who have posted, or written elsewhere, although I do think
> academics generally have a comparative advantage at calm and slow
> reflection, not short-term reactions and predictions, in which they are
> largely as subject to cognitive limitations as all humans are.
>
> To that end, may I commend Timothy Zick's The Cosmopolitan First
> Amendment: Protecting Transborder Expressive and Religious Liberties
> (Cambridge University Press, 2015),
>
> http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210.
> His endnotes point to other relevant and reflective treatments. See also
> this valuable report of a task force on religion and U.S. foreign policy
> sponsored by the Chicago Council on Global Affairs:
> http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf.
> I think everyone will find both sources valuable, interesting, and
> time-consuming.
>
>
> On Dec 9, 2015, at 11:12 PM, James Oleske <jole...@lclark.edu> wrote:
>
> Although Rick and Chip agree that Trump's proposal violates the
> Establishment Clause, they travel different paths to that conclusion, and
> those different paths raise (I think) an interesting question:
>
> Under the Court's precedents, is it clear that the "denominational
> discrimination" rule Rick invokes is, like the "ecclesiastical question"
> rule Chip originally invoked, structural in nature and not rights oriented?
>
> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand
> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of
> language that makes the issue of endorsement or disapproval sound in
> individual rights ("person's standing in the political community" "not full
> members of the political community" “perceived by … nonadherents as a
> disapproval[] of their individual religious choices"). In its latest
> explanation of the denominational-discrimination rule in McCreary, the
> Court wrote that "Manifesting a purpose to favor one faith over another ...
> clashes with the 'understanding, reached ... after decades of religious
> war, that liberty and social stability demand a religious tolerance that
> respects the views of all citizens." If we're talking about non-citizens
> who are not part of the American political community, could one colorably
> argue that the denominational-discrimiantion rule -- as currently
> understood by the Court -- does not apply?
>
> - Jim
>
> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com>
> wrote:
>
> I missed Chip's great post before I asked my question.
>
> I agree completely with what Chip says here. It seems like a clear
> violation of EC limitations on National power. The clearest command of the
> EC forbids denominational discrimination by the National government
> ("Congress shall make no law").
>
> The only problem might be standing. Would a non-citizen-foreign-national
> have standing to challenge the exclusion under the EC?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> ------------------------------
> *From:* Ira Lupu <icl...@law.gwu.edu>
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
> *Sent:* Tuesday, December 8, 2015 7:10 PM
> *Subject:* the unconstitutionality of barring Muslims from entering the
> U.S.
>
> There has been much discussion in the press and on blog posts re: the
> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from
> entering the U.S. Several commentators have suggested the "plenary power"
> doctrine, governing Congressional power over immigration, would insulate
> such a proposal from a finding of unconstitutionality.
> I think the strongest constitutional argument against this proposal is
> based on the Establishment Clause, which severely limits the government's
> power to decide who is and who is not a Muslim. Suppose the person seeking
> entry disputes the label; how will immigration officials adjudicate the
> question? What criteria would the government apply to decide who fits the
> disqualification? This is an ecclesiastical question, the decisions of
> which are off-limits to the government. (See Hosanna-Tabor v. EEOC; more
> generally, see Lupu & Tuttle, Secular Government, Religious People, chaps.
> 1-2.)
> Because the Establishment Clause is structural, and not rights-oriented,
> It does not matter whether or not the decisions pertain to American
> nationals. The plenary power doctrine cannot undo this structural
> limitation, any more than it can undo limitations based on separation of
> powers (e.g., Congress may not delegate to a congressional committee the
> power to process immigration cases).
>
> Reactions from list members to this argument?
>
> --
> 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" ( Wm. B. Eerdmans Pub. Co., 2014))
> 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
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>
> Please note that messages sent to this large list cannot be viewed as
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>
>
>
>
> --
> 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" ( Wm. B. Eerdmans Pub. Co., 2014))
> 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
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> 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
>
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> private. Anyone can subscribe to the list and read messages that are
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>
>
>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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>
_______________________________________________
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