RE: Blackmun Papers
1.The revelation that Kenny switched sides also explains the lengthy Souter concurrence in Lee. IF the original majority opinion had been a Kennedy opinion rooted in coercion (and its absence in that case) an opinion retracing the Establishment Clause makes sense as a dissent. It makes less sense as a concurrence where a brief note that coercion is not the only test would have sufficed. 2. I received a complaint from a prison inmate that chaplains are not excluding non-members of the faith from services. My contact complains that these interlopers disrupt services in various subtle ways. Apparently prison authorities are pressing chaplains not to exclude anyone who shows up. . Two questions: Do chaplains have the right to decide who is a member of the faith? Can inmates insist on the exclusion of non-members over the objections of prison officials/ Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of David Cruz Sent: Thursday, March 04, 2004 1:05 PM To: Law Religion issues for Law Academics Subject: Re: Blackmun Papers On Thu, 4 Mar 2004, Lupu wrote: Nina Totenberg reported on NPR this morning that the Blackmun papers reveal that Kennedy did exactly the same thing in 1992 in Planned Parenthood v. Casey, in which (she claimed) he was originally the fifth vote for an opinion that would have overruled Roe, but switched and joined with Souter and O'Connor in the now- famous troika opinion that preserved Roe with respect to abortion prohibitions. If all these Kennedy switch stories are true, is there any wonder about why Justice Scalia sounded so angry in his dissents in those cases? I would disagree, unless I thought that judges feel they have any entitlement to an early majority vote. [It might be a different matter if Justice Kennedy had misrepresented his degree of commitment to the early majority vote, but nothing in the stories I've seen so far suggests that.] Supreme Court Justices and other judges have a long history of having changed their minds about their conference vote, which any reasonable jurist should consider provisional, IMHO. The federal appellate judge for whom I clerked maintained that sometimes the opinion won't write, which sounds a lot like what Kennedy is reported to have said about his original Lee v. Weisman draft. Given the press of litigation, even with the Supreme Court's greatly reduced argument calendar, I am not convinced one should reasonably expect judges to have reached a thoroughly thoughtful and final position until they see how it writes and even what any dissent says. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
More Moore
Alabama Judicial Building Ten Commandments monument is again the subject of a ruling from the U.S. Court of Appeals for the Eleventh Circuit: You can access today's ruling at this link. An early favorite is this paragraph from the opinion: In this case the appellants contend that the removal of the Ten Commandments monument created empty space, and that this empty space violates the Establishment Clause because it is an endorsement of religion, or in this instance, nontheism. This argument is without merit. If the appellants were correct in their assertion an Establishment Clause violation could never be cured because every time a violation is found and cured by the removal of the statute or practice that cure itself would violate the Establishment Clause by leaving behind empty space. The religion of no religion is very difficult to establish.posted at 11:44 by Howard Bashman McGinley v Houstin, 11th Circuit -- 93-00895-CV-T-N -- March 5, 2004 from Joel Sogol ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Blackmun Papers
For a particularly badly reasoned equal access opinion in a case involving a gay straight alliance club see Caudillo v. Lubbock ISD. It is not yet posted on Westlaw or loislaw, but it is available on the Northern District of Texas website. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Douglas Laycock Sent: Thursday, March 04, 2004 1:28 PM To: Law Religion issues for Law Academics Subject: Re: Blackmun Papers In my student days at Chicago, the formulation the opinion won't write was attributed to Karl Llewellyn. My guess would be it appears in The Common Law Tradition (1960), or Jurisprudence (1962), but possibly much earlier in The Bramblebush (1930). And I would guess that he heard it from some older judge. At 10:04 AM 3/4/2004 -0800, David Cruz wrote: The federal appellate judge for whom I clerked maintained that sometimes the opinion won't write, which sounds a lot like what Kennedy is reported to have said about his original Lee v. Weisman draft. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
A washingtonpost.com article from: [EMAIL PROTECTED]
You have been sent this message from [EMAIL PROTECTED] as a courtesy of washingtonpost.com Justice Intervenes in Boy Scouts Case By SETH HETTENA SAN DIEGO - The government intervened Thursday on behalf of the Boy Scouts of America in a federal lawsuit over whether the Scouts should be evicted from a San Diego park because they discriminate against atheists and gays. The Department of Justice's Civil Rights Division submitted a friend-of-the-court brief supporting the Scouts in a 4-year-old court fight over the Scouts' lease on Fiesta Island, a public park where the organization runs a youth aquatic center. Quite simply, the Boy Scouts of America is not a church, and canoeing, kayaking and swimming are not religious activities, said R. Alexander Acosta, assistant attorney general for the division. Boy Scouts should not be prohibited from using public lands on an equal basis with other youth groups. The American Civil Liberties Union sued the Scouts' local council and the city of San Diego, contending the Scouts should be evicted. It is sadly ironic that the Civil Rights Division of the Department of Justice - which in the '50s and '60s fought on behalf of civil rights for African-Americans - has today come in on the side of an organization that proudly and openly discriminates against people on the basis of their religious non-belief or their sexual orientation, ACLU attorney M. Andrew Woodmansee said. Both sides are scheduled to present arguments in the case next month. A San Diego-area Boy Scouts spokeswoman, Merrilee Boyack, welcomed the government's intervention. They consider this a case of nationwide importance, Boyack said. This is a case where a city government is trying to single out the Boy Scouts because we are a group of people that believe in God. In January, the city agreed to pay the ACLU $950,000 in court costs and to ask a federal judge to void another park lease held by the Boy Scouts. Would you like to send this article to a friend? Go to http://www.washingtonpost.com/ac2/wp-dyn/admin/emailfriend?contentId=A31857-2004Mar4sent=noreferrer=emailarticle Visit washingtonpost.com today for the latest in: News - http://www.washingtonpost.com/?referrer=emailarticle Politics - http://www.washingtonpost.com/wp-dyn/politics/?referrer=emailarticle Sports - http://www.washingtonpost.com/wp-dyn/sports/?referrer=emailarticle Entertainment - http://www.washingtonpost.com/wp-srv/eg/section/main/index.html?referrer=emailarticle Travel - http://www.washingtonpost.com/wp-dyn/travel/?referrer=emailarticle Technology - http://www.washingtonpost.com/wp-dyn/technology/?referrer=emailarticle Want the latest news in your inbox? Check out washingtonpost.com's e-mail newsletters: http://www.washingtonpost.com/ac2/wp-dyn?node=admin/emailreferrer=emailarticle © 2004 The Washington Post Company ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Alan, A state law that conditioned aid on not maintaining a Kosher kitchen would seem to discriminate on the basis of religion and to lack a compelling state interest. The Saturday operation condition might be treated as neutral on its face. If so, wouldn't Smith apply? Brian [EMAIL PROTECTED] 03/02/2004 2:29:47 PM I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought
