Setting aside the discussion of Hosanna-Tabor and RFRA for a moment, the initial question was about where a person “has a right to be.” As it happens, Virginia has a church trespass statute (Va. Code. § 18.2-128), which provides, "It shall be unlawful for any person, whether or not a church member or student, to enter upon or remain upon any church or school property in violation of (i) any direction to vacate the property by a person authorized to give such direction….” Imprudent as the church’s decision might be here, doesn’t the statutory right of the church to exclude for trespass (without all the difficulties of “excommunication” and so on) give a straightforward answer to the problem?
-- Michael P. Moreland Visiting Professor of Law and Mary Ann Remick Senior Visiting Fellow University of Notre Dame 3101 Eck Hall of Law Notre Dame, Indiana 46556 Tel: 574-631-2306 Email: moreland...@nd.edu<mailto:moreland...@nd.edu> From: <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Thursday, April 27, 2017 at 10:44 PM To: Law Religion & Law List <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Church excludes nursing woman Anyway, to return to my original question, how would this work out under RFRA, it seems that there is no substantial burden on religious exercise unless the church in question considers uncovered breast feeding immodest under its religious teachings. Then, is uncovered breast feeding a compelling state interest? I don’t think so. If it is, there seems to be no less instrusive alternative than to say “allow it.” Under Smith, this would be a neutral, generally applicable law that applies to religious conduct — here allowing uncovered breast feeding during a service in the sanctuary — where the person has a right to be unless the church excommunicates (or whatever term they use to define members) the person. Which then brings us to Hosanna-Tabor. I agree that some aspects of religious practice, e.g., selecting ministers and even choosing who is a “minister” is insulated from governmental regulation. And I agree that a religion can choose who will be admitted as congregants and can impose any rules of modesty and decorum it likes. But can a religion be required to show that it has a rule of modesty that was violated? Or can it exclude anyone for an ad hoc, unknown rule? Does it matter whether it was an officious meddling congregant as opposed to a church official who did the meddling? Or is the exclusion utterly unreviewable. The ecclesiastical immunity of Hossana-Tabor has limits — child abuse, pedophilia, murder, slavery, and so on — but just where is that edge? Surely we can stop trial of faith by serpent’s bite. But what short of that? Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fiipsj.org&data=02%7C01%7Cmoreland%40law.villanova.edu%7Ca3332bbf569a4a35bcbb08d48de09b1f%7C765a8de5cf9444f09cafae5bf8cfa366%7C0%7C0%7C636289443198238321&sdata=fdZN5oqfXicyj2pXK20hW%2FCoR7F2VEvDsS3%2BZ2ncBrE%3D&reserved=0> http://sdjlaw.org "In these words I can sum up everything I've learned about life: It goes on." --Robert Frost
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