Neither Eugene not Steven has made any attempt to state the principle for which Hosanna-Tabor stands. It certainly does not stand for a broad and free floating principle of church autonomy, subject to some balancing test. It does not assert that broad principle, and it explicitly eschews any balancing of interests.
Hosanna-Tabor is much cleaner that many have made it out to be. It reaffirms a longstanding constitutional principle, resting on both Religion Clauses of the First Amendment, that the state may not resolve exclusively ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017), https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf. Who is fit for ministry is such a question. Another exclusively ecclesiastical question is who is entitled to attend a worship service, and under what conditions. So the church has a First A right to exclude a breast-feeding woman from its worship service. Once the church does so, it is no longer a place where she has a right to be. On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar <stevenja...@gmail.com> wrote: > I assume freedom of association would protect a church in selecting its > membership. And I assume Hosanna-Tabor would protect religion-driven > decorum decisions like separate seating for men and women in synagogues and > mosques. > But this is just a case of people being uncomfortable — not a > religiously-compelled doctrine or code of conduct. I don’t see either > Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just > any activity a church claims and RFRA requires a substantial burden on the > exercise of religion (assuming the VA RFRA is like the federal one — again, > I’m not interested in the particulars of the VA RFRA). > > > -- > Prof. Steven D. Jamar > Assoc. Dir. of International Programs > Institute for Intellectual Property and Social Justice > http://iipsj.org > http://sdjlaw.org > > "In these words I can sum up everything I've learned about life: It > goes on." > > --Robert Frost > > > > > > On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > > 1. Does the principle underlying *Hosanna-Tabor *extend > to churches excluding members (or visitors) based on race, sex, religion, > etc.? I assume it would, which is why, for instance, Orthodox synagogues > could have separate seating for men and women, Nation of Islam events could > be men-only (there are a few cases on the latter, though free speech cases > rather than religious freedom cases), various churches could be racially or > ethnically exclusionary in their membership, and so on. > > 2. If a church can exclude people from membership or > attendance based on race, sex, etc., I assume it would likewise be free to > exclude people who engage in certain behavior. > > 3. Virginia does have a state RFRA, Va Code 57-2.02, but > I assume the *Hosanna-Tabor *principle – if it’s applicable – would > provide categorical protection, not subject to trumping under strict > scrutiny. > > Eugene > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On > Behalf Of *Steven Jamar > *Sent:* Thursday, April 27, 2017 9:49 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Church excludes nursing woman > > If RFRA applied to the state, or if Virginia had a state RFRA that copied > the federal RFRA, would this state law be legal? > > Virginia law provides that a woman can breast feed uncovered anywhere she > has a legal right to be. Can a church then exclude her because breast > feeding uncovered might make some other congregants uncomfortable? > > https://www.washingtonpost.com/local/virginia-politics/ > this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/ > adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c > > -- > Prof. Steven D. Jamar > Assoc. Dir. of International Programs > Institute for Intellectual Property and Social Justice > http://iipsj.org > http://sdjlaw.org > > > "Years ago my mother used to say to me... 'In this world Elwood' ... She > always used to call me Elwood... 'In this world Elwood, you must be Oh So > Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend > pleasant. You may quote me." --Elwood P. Dowd > > - Mary Chase, "Harvey", 1950 > > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) 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 posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
