All too true! Eric N. Kniffin, Of Counsel
Lewis Roca Rothgerber LLP 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662<x-apple-data-detectors://0/2> (T) 719.386.3017<tel:719.386.3017> (F) 719.386.3070<tel:719.386.3070> eknif...@lrrlaw.com<mailto:eknif...@lrrlaw.com> |www.LRRLaw.com<http://www.lrrlaw.com/> On Dec 11, 2015, at 4:13 PM, Rick Garnett <rgarn...@nd.edu<mailto:rgarn...@nd.edu>> wrote: 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<mailto: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<mailto:jole...@lclark.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto:icl...@law.gwu.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto: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<mailto: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" ( 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<mailto: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. 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