Rational Basis v. Intermediate Scrutiny
Marci, I agree that the Court's review categories are "not susceptible to scientific calculation," and I further agree that, in practice, the Court's decisions fall at a variety of points along the scrutiny spectrum, not just in the three main categories (rational basis review; intermediate scrutiny; strict scrutiny). That said, I don't understand how these points help provide an explanation for your categorical assertion that the word "legitimate" is a "buzzword for intermediate scrutiny." More fundamentally, it seems to me that your acknowledgment of a wide scrutiny spectrum undermines your earlier attempt to read the Turner standard as equivalent to the RLUIPA standard. If there were only three categories of scrutiny, one could plausibly argue that anything more than rational basis and anything less than strict scrutiny must both be intermediate scrutiny. But if, as you now posit, there are various levels of rational basis review, various levels of intermediate scrutiny, and various levels of strict scrutiny, it is much more likely that there is a legally significant gap between heightened rational basis and relaxed strict scrutiny. Moreover, you appear to be ignoring the critical difference between the Court's heightened application of rational basis in particular cases (e.g., Cleburne, Turner) and the Court's establishment of a heightened standard that will be applied in future cases. In the end, your argument that the Turner standard is equivalent to the RLUIPA standard strikes me as very similar to an argument that the standard for classifications based on disability is equivalent to the standard for classifications based on gender. - Jim __ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ___ 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.
RE: Rick Perry and separation of church and state
Agreed on point one, though the question of constitutionality is very much up in the air. As to the second point, I was actually thinking of insurance coverage requirements, which were put in place in Texas (as in many states) by the legislature, though signed into law by the governor (in this case, Perry). My guess here is that he was willing to offend many supporters on the issue, and the fact that they might be religious "conservatives" seemed to make no difference. Richard Dougherty -- Original Message -- From: "Sanford Levinson" <[EMAIL PROTECTED]> Date: Mon, 6 Jun 2005 22:35:50 -0500 >I think we are in substantial agreement about "the character of Perry's >act," which is something different from his understanding of what >restraints he might properly feel under when he acts as Governor (by >signing a bill). > >As to your second question, I have some sympathy with it. I think the >obvious problem is how, if at all, we could possibly construct "moral >opt outs" with regard to payment of taxes. I would allow you to avoid >subsidizing abortion if you'd allow me to avoid subsidizing the current >interrogation practices of the U.S. government, and so on. I don't mean >to make light of your question. It raises the deepest question about >the ways we construct a political life together (including the payment >of taxes) in a truly pluralistic social order. > >sandy > >-Original Message- >From: [EMAIL PROTECTED] >[mailto:[EMAIL PROTECTED] On Behalf Of Richard >Dougherty >Sent: Monday, June 06, 2005 11:28 PM >To: Law & Religion issues for Law Academics; Law & Religion issues for >Law Academics; Law & Religion issues for Law Academics >Subject: RE: Rick Perry and separation of church and state > >Sandy: >Doesn't your point here indicate the character of Perry's act? That is, >he is apparently trying to score political points with a sector of the >party. The fact that it is a religious group is interesting, but >otherwise not very noteworthy. As you note, someone like Jim Wallis >(and lots of other Protestants and others) is not likely to be hired by >Perry as a speechwriter or consultant, but that's not because of his >religious views but because of his political views. In other words, >there's no reliable religious majority. > >To your understanding of the spirit of the First Amendment, to "avoid >using one's official position to give needless offense to persons with >different religious views by making them feel marginal members of the >community" -- would that include not requiring adherents to religions >that reject abortion and contraception to pay for others to have access >to such? > >Richard Dougherty > > -- Original Message -- >From: "Sanford Levinson" <[EMAIL PROTECTED]> >Reply-To: Law & Religion issues for Law Academics > >Date: Mon, 6 Jun 2005 18:31:24 -0500 > >>Mark raises an interesting point. Would it have been objectionable for >Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably >not. Not only is there a "close fit" between RFRA and religion, but one >could also use the occasion for a general civics lecture on the >importance of accommodating those whose religious observances would >otherwise make it difficult to participate fully in the economy or >American life more generally (a little bit like the defense of >reproductive rights, as a matter of fact!). But Perry's bill has >nothing whatsoever to do with defending the rights of the religious as >such, unless one argues that "a special right of the religious" is to >have some special say in depriving others of their rights (to >reproductive choice). I know this is a completely tendentious way of >putting it, not least because a) there are lots of religious people who >support reproductive choice; and b) there are in fact a fair number of >secularists who have been p! > ersuaded that abortion is murder and support limting reproductive >choice. >> >>sandy >> >> >___ >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 o
RE: Rick Perry and separation of church and state
I think we are in substantial agreement about "the character of Perry's act," which is something different from his understanding of what restraints he might properly feel under when he acts as Governor (by signing a bill). As to your second question, I have some sympathy with it. I think the obvious problem is how, if at all, we could possibly construct "moral opt outs" with regard to payment of taxes. I would allow you to avoid subsidizing abortion if you'd allow me to avoid subsidizing the current interrogation practices of the U.S. government, and so on. I don't mean to make light of your question. It raises the deepest question about the ways we construct a political life together (including the payment of taxes) in a truly pluralistic social order. sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard Dougherty Sent: Monday, June 06, 2005 11:28 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state Sandy: Doesn't your point here indicate the character of Perry's act? That is, he is apparently trying to score political points with a sector of the party. The fact that it is a religious group is interesting, but otherwise not very noteworthy. As you note, someone like Jim Wallis (and lots of other Protestants and others) is not likely to be hired by Perry as a speechwriter or consultant, but that's not because of his religious views but because of his political views. In other words, there's no reliable religious majority. To your understanding of the spirit of the First Amendment, to "avoid using one's official position to give needless offense to persons with different religious views by making them feel marginal members of the community" -- would that include not requiring adherents to religions that reject abortion and contraception to pay for others to have access to such? Richard Dougherty -- Original Message -- From: "Sanford Levinson" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Mon, 6 Jun 2005 18:31:24 -0500 >Mark raises an interesting point. Would it have been objectionable for Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably not. Not only is there a "close fit" between RFRA and religion, but one could also use the occasion for a general civics lecture on the importance of accommodating those whose religious observances would otherwise make it difficult to participate fully in the economy or American life more generally (a little bit like the defense of reproductive rights, as a matter of fact!). But Perry's bill has nothing whatsoever to do with defending the rights of the religious as such, unless one argues that "a special right of the religious" is to have some special say in depriving others of their rights (to reproductive choice). I know this is a completely tendentious way of putting it, not least because a) there are lots of religious people who support reproductive choice; and b) there are in fact a fair number of secularists who have been p! ersuaded that abortion is murder and support limting reproductive choice. > >sandy > > ___ 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.
RE: Rick Perry and separation of church and state
Sandy: Doesn't your point here indicate the character of Perry's act? That is, he is apparently trying to score political points with a sector of the party. The fact that it is a religious group is interesting, but otherwise not very noteworthy. As you note, someone like Jim Wallis (and lots of other Protestants and others) is not likely to be hired by Perry as a speechwriter or consultant, but that's not because of his religious views but because of his political views. In other words, there's no reliable religious majority. To your understanding of the spirit of the First Amendment, to "avoid using one's official position to give needless offense to persons with different religious views by making them feel marginal members of the community" -- would that include not requiring adherents to religions that reject abortion and contraception to pay for others to have access to such? Richard Dougherty -- Original Message -- From: "Sanford Levinson" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Mon, 6 Jun 2005 18:31:24 -0500 >Mark raises an interesting point. Would it have been objectionable for >Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably not. >Not only is there a "close fit" between RFRA and religion, but one could also >use the occasion for a general civics lecture on the importance of >accommodating those whose religious observances would otherwise make it >difficult to participate fully in the economy or American life more generally >(a little bit like the defense of reproductive rights, as a matter of fact!). >But Perry's bill has nothing whatsoever to do with defending the rights of the >religious as such, unless one argues that "a special right of the religious" >is to have some special say in depriving others of their rights (to >reproductive choice). I know this is a completely tendentious way of putting >it, not least because a) there are lots of religious people who support >reproductive choice; and b) there are in fact a fair number of secularists who >have been p! ersuaded that abortion is murder and support limting reproductive choice. > >sandy > > ___ 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.
RE: Rick Perry and separation of church and state
I continue to think the sermon is an easy case, because it does not involve an official act. But let me focus on Eugene's second point. I think there is a distinction between what we used to call sectarian religious beliefs and what we might call ethical religious precepts. Today, I would use the term distinctly religious or denominational, rather than sectarian, but the idea is the same. I am neither surprised nor offended if a governor who adheres to a religion that opposes same-sex marriage supports public policy consistent with his faith -- even though my religious beliefs support a contrary conclusion. People of various faiths or no faith may similarly oppose same-sex marriages. And the governor may make it clear that he is aligned with constituencies, religious or otherwise, that support his position on same-sex marriage. But I don't expect the governor to do things that suggest the official policy of the state conforms to the views of people who hold specific theological or denominational views -- or to perform official acts that suggest that these kinds of religious precepts and the communities that adhere to them are held in special regard by government. That raises Establishment Clause concerns. Is this a line that can always be easily identified? No. But I think there is a difference between the President singing a hymn at a Church service, delivering a sermon at a Church, and delivering the State of the Union address from the pulpit of a Church. And I think there is a difference between a Governor who invites various public and private leaders, religious or otherwise, to a bill signing ceremony at a government building -- and a governor who signs a bill in a house of worship surrounded by people of only one religious persuasion. Alan Brownstein UC Davis At 12:57 PM 6/6/2005 -0700, you wrote: But a sermon by the Governor, or other statements by the Governor, would leave the same impression. Moreover, if one simply knows that the Governor is a devout Christian who views Christianity as an important guide to what is right and what is wrong, then it would seem pretty likely from that alone that the Governor's public policy will be made, generally speaking, in a way that conforms with the tenets of those the Governor deems Christians. I'd assume that if a governor were a deeply committed feminist, environmentalist, libertarian, Marxist, or whatever else, I would get the impression that public policy will be made in a way that conforms with those tenets (subject to the unavoidable compromises created by the political process). Why should I expect anything different if the governor is a deeply committed Christian? And this, I think, ties to a broader point. People who belong to religious minority groups known that they are in the minority. And to the extent that religious views are tied to public policy prescriptions -- quite likely when the religions deal with morality as well as abstract theology -- those minority groups must surely realize, even without the Governor's saying anything, that in their jurisdiction public policy will generally be made in a way that conforms with the tenets of the majority religious groups. So the impression mentioned in the first sentence of Sandy's message would, I think, be there quite independently of the governor's bill-signing practices; it's hard for me then to see why these bill-signing practices are particularly violative of the spirit of the Establishment Clause. One may well say that government officials should try to avoid rubbing the minority's nose in this fact of politics. At the same time, as I mentioned before, even government officials who would honor this guideline, if all else is equal, may find that all else is not equal, and that it's politically important -- both personally and to their ideological projects -- to public convey kinship to a certain politico-religious group even when it reminds the religious minority of what I presume the religious minority has known all along. Eugene Sandy Levinson writes: > This "reasonable Texan" has the impression that only > Christians are treated as "friends" by the Governor of Texas > and that public policy will be made in a way that conforms > with the tenets of those the Governor deems Christians. But, > then, like Homer Plessy, I'm undoubtedly too quick to take > offense, and I should realize that I'm being treated equally > even if I'm most definitely in the back of Rick Perry's > particular bus. (Though, in fairness to Perry, if I were a > right-wing Republican like a member of our synagogue in > Austin, who eagerly collaborated with the DeLay gerrymander, > I'm sure I'd be welcome into the inner sanctum. Just as I > doubt that Jim Wallis is one of the "Christian friends" of > Rick Perry.) > > Sandy > > > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > S
RE: Rick Perry and separation of church and state
I'm not sure how much of a difference there is, and I'm not sure which way it cuts. But it may well matter for constitutional purposes, (1) whether the government official is acting himself, or whether this requires a decision of a group of officials as an institution, and for "political ethics" purposes, (2) whether the official is a judge. 1. The actions of a Governor, or of one Justice -- imagine that Chief Justice Scalia literally simply announced the decision in a local Catholic church, in the sense of being the first to publicize the result -- are much more credibly seen as the actions of one government official, expressing his views of what's the right thing to do. If I heard about a Chief Justice Scalia announcing the Court's views in a Catholic church, I would infer that this just reflected Scalia's own view (albeit a view that may well have animated his legally significant vote in the decision). On the other hand, the actions of the Court or the Senate as a collective body may be more reasonably imputed to the body as a whole, partly because it's hard to see this as just the personal viewpoint of the Justices. 2. Judges are supposed to be less political than other officials, which is why we'd probably balk at the Court announcing its decisions at the NRA headquarters, the ACLU headquarters, or the Sierra Club headquarters (in a way that we wouldn't necessarily balk at a Governor doing the same thing). So perhaps even if one Justice announces the Court's views -- in the sense of being the first to publicize the Court's decision -- it may well be best if the Justice avoided ideologically charged venues. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Sanford Levinson > Sent: Monday, June 06, 2005 4:32 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > > I'm wondering what Eugene would think if Chief Justice > Scalia, on that happy day when Roe is overturned, decided to > hold the announcement of that decision in a local Catholic > church. Obviously, there is no legal consequence as to where > decisions are announced, and I already know Scalia's view on > the matter. Is the difference between Scalia and Perry the > fact that one is a judge and the other a governor? Or that > opinions are ALWAYS (as opposed to usually) announced at the > Supreme Court building, whereas bills are not in fact always > signed at the governor's office? > > sandy > > -Original Message- > From: [EMAIL PROTECTED] on behalf of Volokh, Eugene > Sent: Mon 6/6/2005 2:57 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > But a sermon by the Governor, or other statements by > the Governor, would leave the same impression. Moreover, if > one simply knows that the Governor is a devout Christian who > views Christianity as an important guide to what is right and > what is wrong, then it would seem pretty likely from that > alone that the Governor's public policy will be made, > generally speaking, in a way that conforms with the tenets of > those the Governor deems Christians. I'd assume that if a > governor were a deeply committed feminist, environmentalist, > libertarian, Marxist, or whatever else, I would get the > impression that public policy will be made in a way that > conforms with those tenets (subject to the unavoidable > compromises created by the political process). Why should I > expect anything different if the governor is a deeply > committed Christian? > > And this, I think, ties to a broader point. People who > belong to religious minority groups known that they are in > the minority. And to the extent that religious views are > tied to public policy prescriptions -- quite likely when the > religions deal with morality as well as abstract theology -- > those minority groups must surely realize, even without the > Governor's saying anything, that in their jurisdiction public > policy will generally be made in a way that conforms with the > tenets of the majority religious groups. So the impression > mentioned in the first sentence of Sandy's message would, I > think, be there quite independently of the governor's > bill-signing practices; it's hard for me then to see why > these bill-signing practices are particularly violative of > the spirit of the Establishment Clause. > > One may well say that government officials should try > to avoid rubbing the minority's nose in this fact of > politics. At the same time, as I mentioned before, even > government officials who would honor this guideline, if all > else is equal, may find that all else is not equal, and that > it's politically important -- both personally and to their > ideological projects -- to public convey kinship to a certain > politico-religious
RE: Rick Perry and separation of church and state
Now I'm really puzzled by this. I had thought that Sandy was upset about a governor going into a house of worship to perform an official act (signing a bill). Now it seems like the "spirit of the Establishment Clause" is not violated when the governor signs laws that have a "close fit" with "religion," or when the governor profitably "use[s] the occasion for a general civics lecture" on tolerance. That doesn't quite work, it seems to me. What's more, surely one can say that the governor's signing the bill has a "close fit" with the doctrine that ""[T]he 'Establishment' Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions," or that the governor "could . . . use the occasion for a general civics lecture on the importance of" recognizing the equal right of religious people to implement laws based on religious principles as of nonreligious people to implement laws based on secular moral principles (contrary to the views of some -- likely *not* including Sandy -- who try to deligitimize certain laws on the grounds that they were backed by religious people for religious reasons). So it seems to me that the proposed doctrine turns primarily on the observer's affection or respect for the proposed law. Eugene Sandy Levinson writes: Mark raises an interesting point. Would it have been objectionable for Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably not. Not only is there a "close fit" between RFRA and religion, but one could also use the occasion for a general civics lecture on the importance of accommodating those whose religious observances would otherwise make it difficult to participate fully in the economy or American life more generally (a little bit like the defense of reproductive rights, as a matter of fact!). But Perry's bill has nothing whatsoever to do with defending the rights of the religious as such, unless one argues that "a special right of the religious" is to have some special say in depriving others of their rights (to reproductive choice). I know this is a completely tendentious way of putting it, not least because a) there are lots of religious people who support reproductive choice; and b) there are in fact a fair number of secularists who have been persuaded that abortion is murder and support limting reproductive choice. sandy -Original Message- From: [EMAIL PROTECTED] on behalf of Scarberry, Mark Sent: Mon 6/6/2005 3:15 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Rick Perry and separation of church and state With regard to politicians attempting to gain favor with religious groups, I was interested to learn that we may have a Bill of Rights only because a particular politician did so. Without Madison's efforts in the first House of Representatives, there might not have been a Bill of Rights. Madison faced a "tough election campaign" in a "district with an anti-federalist majority." McConnell, Garvey & Berg, Religion and the Constitution 73. Madison sought and received the support of the Baptists in his district by writing a letter to a Baptist minister stating that he would support provisions (apparently constitutional amendments) protecting "essential rights." See id. In part as a result of a political rally held at a Baptist church -- complete with an address from the Baptist minister who had received the letter -- the Baptists shifted their support to Madison, and he won the election. Id. With regard to Rep. DeLay, I have heard that he was helpful to Jewish "refusedniks" in the old Soviet Union. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Monday, June 06, 2005 12:46 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state This "reasonable Texan" has the impression that only Christians are treated as "friends" by the Governor of Texas and that public policy will be made in a way that conforms with the tenets of those the Governor deems Christians. But, then, like Homer Plessy, I'm undoubtedly too quick to take offense, and I should realize that I'm being treated equally even if I'm most definitely in the back of Rick Perry's particular bus. (Though, in fairness to Perry, if I were a right-wing Republican like a member of our synagogue in Austin, who eagerly collaborated with the DeLay gerrymander, I'm sure I'd be welcome into the inner sanctum. Just as I doubt that Jim Wallis is one of the "Christian friends" of Rick Perry.) Sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, June 06, 2005 3:29 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state I agree that giving a sermon at a church isn't i
RE: Rick Perry and separation of church and state
I'm wondering what Eugene would think if Chief Justice Scalia, on that happy day when Roe is overturned, decided to hold the announcement of that decision in a local Catholic church. Obviously, there is no legal consequence as to where decisions are announced, and I already know Scalia's view on the matter. Is the difference between Scalia and Perry the fact that one is a judge and the other a governor? Or that opinions are ALWAYS (as opposed to usually) announced at the Supreme Court building, whereas bills are not in fact always signed at the governor's office? sandy -Original Message- From: [EMAIL PROTECTED] on behalf of Volokh, Eugene Sent: Mon 6/6/2005 2:57 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state But a sermon by the Governor, or other statements by the Governor, would leave the same impression. Moreover, if one simply knows that the Governor is a devout Christian who views Christianity as an important guide to what is right and what is wrong, then it would seem pretty likely from that alone that the Governor's public policy will be made, generally speaking, in a way that conforms with the tenets of those the Governor deems Christians. I'd assume that if a governor were a deeply committed feminist, environmentalist, libertarian, Marxist, or whatever else, I would get the impression that public policy will be made in a way that conforms with those tenets (subject to the unavoidable compromises created by the political process). Why should I expect anything different if the governor is a deeply committed Christian? And this, I think, ties to a broader point. People who belong to religious minority groups known that they are in the minority. And to the extent that religious views are tied to public policy prescriptions -- quite likely when the religions deal with morality as well as abstract theology -- those minority groups must surely realize, even without the Governor's saying anything, that in their jurisdiction public policy will generally be made in a way that conforms with the tenets of the majority religious groups. So the impression mentioned in the first sentence of Sandy's message would, I think, be there quite independently of the governor's bill-signing practices; it's hard for me then to see why these bill-signing practices are particularly violative of the spirit of the Establishment Clause. One may well say that government officials should try to avoid rubbing the minority's nose in this fact of politics. At the same time, as I mentioned before, even government officials who would honor this guideline, if all else is equal, may find that all else is not equal, and that it's politically important -- both personally and to their ideological projects -- to public convey kinship to a certain politico-religious group even when it reminds the religious minority of what I presume the religious minority has known all along. Eugene Sandy Levinson writes: > This "reasonable Texan" has the impression that only > Christians are treated as "friends" by the Governor of Texas > and that public policy will be made in a way that conforms > with the tenets of those the Governor deems Christians. But, > then, like Homer Plessy, I'm undoubtedly too quick to take > offense, and I should realize that I'm being treated equally > even if I'm most definitely in the back of Rick Perry's > particular bus. (Though, in fairness to Perry, if I were a > right-wing Republican like a member of our synagogue in > Austin, who eagerly collaborated with the DeLay gerrymander, > I'm sure I'd be welcome into the inner sanctum. Just as I > doubt that Jim Wallis is one of the "Christian friends" of > Rick Perry.) > > Sandy > > > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Monday, June 06, 2005 3:29 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > I agree that giving a sermon at a church isn't > identical to signing a bill at a religious gathering. But > the only "official" effect of signing a bill flows from its > having been signed. Perry's signing it at a religious > gathering in no way affects the contents of the bill, or any > other legal obligation that anyone possesses. The choice of > where and how to sign the bill is a political decision, aimed > at sending a political message to a political constituency. > > Both a sermon and the signing convey the impression > that the governor holds certain religious views, and thinks > they are right. Neither the sermon nor the signing should, I > think, lead a reasonable person to conclude that the State of > Texas -- as an entity, as opposed to a group of people -- > holds certain religious views, whatever that might mean. And > to say that Perry is conveyin
RE: Rick Perry and separation of church and state
Title: RE: Rick Perry and separation of church and state
Mark raises an interesting point. Would it have been objectionable for Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably not. Not only is there a "close fit" between RFRA and religion, but one could also use the occasion for a general civics lecture on the importance of accommodating those whose religious observances would otherwise make it difficult to participate fully in the economy or American life more generally (a little bit like the defense of reproductive rights, as a matter of fact!). But Perry's bill has nothing whatsoever to do with defending the rights of the religious as such, unless one argues that "a special right of the religious" is to have some special say in depriving others of their rights (to reproductive choice). I know this is a completely tendentious way of putting it, not least because a) there are lots of religious people who support reproductive choice; and b) there are in fact a fair number of secularists who have been persuaded that abortion is murder and support limting reproductive choice.
sandy
-Original Message-
From: [EMAIL PROTECTED] on behalf of Scarberry, Mark
Sent: Mon 6/6/2005 3:15 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Rick Perry and separation of church and state
With regard to politicians attempting to gain favor with religious groups, I
was interested to learn that we may have a Bill of Rights only because a
particular politician did so.
Without Madison's efforts in the first House of Representatives, there might
not have been a Bill of Rights. Madison faced a "tough election campaign" in
a "district with an anti-federalist majority." McConnell, Garvey & Berg,
Religion and the Constitution 73. Madison sought and received the support of
the Baptists in his district by writing a letter to a Baptist minister
stating that he would support provisions (apparently constitutional
amendments) protecting "essential rights." See id. In part as a result of a
political rally held at a Baptist church -- complete with an address from
the Baptist minister who had received the letter -- the Baptists shifted
their support to Madison, and he won the election. Id.
With regard to Rep. DeLay, I have heard that he was helpful to Jewish
"refusedniks" in the old Soviet Union.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Sanford Levinson [mailto:[EMAIL PROTECTED]]
Sent: Monday, June 06, 2005 12:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
This "reasonable Texan" has the impression that only Christians are
treated as "friends" by the Governor of Texas and that public policy
will be made in a way that conforms with the tenets of those the
Governor deems Christians. But, then, like Homer Plessy, I'm
undoubtedly too quick to take offense, and I should realize that I'm
being treated equally even if I'm most definitely in the back of Rick
Perry's particular bus. (Though, in fairness to Perry, if I were a
right-wing Republican like a member of our synagogue in Austin, who
eagerly collaborated with the DeLay gerrymander, I'm sure I'd be welcome
into the inner sanctum. Just as I doubt that Jim Wallis is one of the
"Christian friends" of Rick Perry.)
Sandy
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2005 3:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of
RE: Rational Basis v. Intermediate Scrutiny .:.
In Marci's defense, the Turner standard is somewhat more demanding that traditional rational basis review and hence can quite fairly be referred to as a form of intermediate scrutiny. Rather than being defensible on the basis of any governmental interest, Turner restricts the supporting interests the more narrow set of penological interests. Turner also requires consideration of alternative means to exercise the restricted right and the feasibility of alternative means to advance the supporting interest, neither of which are considered in regular rational basis review. Indeed, that's why counsel representing correctional defendants tried after Smith (w/ mixed success) to convince the courts that Smith, rather than O'Lone, governed prisoner Free Exercise claims. From: Menard, Richard H. [mailto:[EMAIL PROTECTED] Sent: Monday, June 06, 2005 4:16 PMTo: Law & Religion issues for Law AcademicsSubject: RE: Rational Basis v. Intermediate Scrutiny .:. Stop digging. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Monday, June 06, 2005 3:55 PMTo: religionlaw@lists.ucla.eduSubject: Re: Rational Basis v. Intermediate Scrutiny .:. I think we're trying to make a science out of an arena we all agreed ages ago was not susceptible to scientific calculation. But in response to your question: There is rationality review, there is rationality review with bite, there is intermediate review that is relaxed, there is stronger intermediate review, etc., etc. The Williamson v. Lee Optical standard makes it IMPOSSIBLE to invalidate a law, because the irrational satisfies a "rational standard." Williamson is clearly not the standard in Turner, which puts some force behind the question whether the penological interest is sufficiently legitimate. If one looks at the Turner case itself, you can see it. Perhaps I should have said that the Turner standard is the rationality standard of Cleburne in the Equal Protection context -- rationality with real bite? That standard is in the intermediate range, as opposed to either end of the spectrum. It is not the Williamson, its only-unconstitutional-if-you-actually-die-laughing-when-you-read-it standard. Marci In a message dated 6/6/2005 3:21:24 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Prof. Hamilton writes:"'Legitimate' is one of the buzz words forintermediate scrutiny."This came as quite a surprise to me. I always thoughtit was black-letter law that "legitimate" was part ofthe rational-basis standard. As recently as 2000, in Kimel v. Florida Bd ofRegents, the Supreme Court explicitly described"rational basis review" as requiring government actionto be "rationally related to a legitimate stateinterest."Am I missing something about the word "legitimate"?I also found Prof. Hamilton's subsequent messageperplexing, where she writes:"[The Turner 'reasonably related to a legitimatepenological interest' standard] is not rationalityreview, either. Once again, read Williamson. Thereis a difference of opinion here on interpretation ofSupreme Court opinions. I believe that is where weshould leave it."I've read Williamson, and I've looked carefully at thelanguage used in Turner and the rational basis cases,and I'm still not understanding Prof. Hamilton'sargument. Is she arguing that the Turner standard is notrationality review because it says "reasonablyrelated" instead of "rationally related"? But seeWashington v. Glucksburg (using the terms "reasonable"and "rational" interchangeably: "reasonable relationto a legitimate state interest"; "rationally relatedto legitimate government interests"; "Congress couldreasonably have determined"; "at least reasonablyrelated").If not, what is the argument? Sidley Austin Brown & Wood LLP mail server made the following annotations on 06/06/2005, 03:16:22 PM-This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ___ 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.
RE: Rational Basis v. Intermediate Scrutiny .:.
Stop digging. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Monday, June 06, 2005 3:55 PMTo: religionlaw@lists.ucla.eduSubject: Re: Rational Basis v. Intermediate Scrutiny .:. I think we're trying to make a science out of an arena we all agreed ages ago was not susceptible to scientific calculation. But in response to your question: There is rationality review, there is rationality review with bite, there is intermediate review that is relaxed, there is stronger intermediate review, etc., etc. The Williamson v. Lee Optical standard makes it IMPOSSIBLE to invalidate a law, because the irrational satisfies a "rational standard." Williamson is clearly not the standard in Turner, which puts some force behind the question whether the penological interest is sufficiently legitimate. If one looks at the Turner case itself, you can see it. Perhaps I should have said that the Turner standard is the rationality standard of Cleburne in the Equal Protection context -- rationality with real bite? That standard is in the intermediate range, as opposed to either end of the spectrum. It is not the Williamson, its only-unconstitutional-if-you-actually-die-laughing-when-you-read-it standard. Marci In a message dated 6/6/2005 3:21:24 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Prof. Hamilton writes:"'Legitimate' is one of the buzz words forintermediate scrutiny."This came as quite a surprise to me. I always thoughtit was black-letter law that "legitimate" was part ofthe rational-basis standard. As recently as 2000, in Kimel v. Florida Bd ofRegents, the Supreme Court explicitly described"rational basis review" as requiring government actionto be "rationally related to a legitimate stateinterest."Am I missing something about the word "legitimate"?I also found Prof. Hamilton's subsequent messageperplexing, where she writes:"[The Turner 'reasonably related to a legitimatepenological interest' standard] is not rationalityreview, either. Once again, read Williamson. Thereis a difference of opinion here on interpretation ofSupreme Court opinions. I believe that is where weshould leave it."I've read Williamson, and I've looked carefully at thelanguage used in Turner and the rational basis cases,and I'm still not understanding Prof. Hamilton'sargument. Is she arguing that the Turner standard is notrationality review because it says "reasonablyrelated" instead of "rationally related"? But seeWashington v. Glucksburg (using the terms "reasonable"and "rational" interchangeably: "reasonable relationto a legitimate state interest"; "rationally relatedto legitimate government interests"; "Congress couldreasonably have determined"; "at least reasonablyrelated").If not, what is the argument? Sidley Austin Brown & Wood LLP mail server made the following annotations on 06/06/2005, 03:16:22 PM - This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ___ 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.
RE: Rick Perry and separation of church and state
With regard to politicians attempting to gain favor with religious groups, I
was interested to learn that we may have a Bill of Rights only because a
particular politician did so.
Without Madison's efforts in the first House of Representatives, there might
not have been a Bill of Rights. Madison faced a "tough election campaign" in
a "district with an anti-federalist majority." McConnell, Garvey & Berg,
Religion and the Constitution 73. Madison sought and received the support of
the Baptists in his district by writing a letter to a Baptist minister
stating that he would support provisions (apparently constitutional
amendments) protecting "essential rights." See id. In part as a result of a
political rally held at a Baptist church -- complete with an address from
the Baptist minister who had received the letter -- the Baptists shifted
their support to Madison, and he won the election. Id.
With regard to Rep. DeLay, I have heard that he was helpful to Jewish
"refusedniks" in the old Soviet Union.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Sanford Levinson [mailto:[EMAIL PROTECTED]
Sent: Monday, June 06, 2005 12:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
This "reasonable Texan" has the impression that only Christians are
treated as "friends" by the Governor of Texas and that public policy
will be made in a way that conforms with the tenets of those the
Governor deems Christians. But, then, like Homer Plessy, I'm
undoubtedly too quick to take offense, and I should realize that I'm
being treated equally even if I'm most definitely in the back of Rick
Perry's particular bus. (Though, in fairness to Perry, if I were a
right-wing Republican like a member of our synagogue in Austin, who
eagerly collaborated with the DeLay gerrymander, I'm sure I'd be welcome
into the inner sanctum. Just as I doubt that Jim Wallis is one of the
"Christian friends" of Rick Perry.)
Sandy
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2005 3:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of Christians") is the same.
Eugene
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steven K
> Green
> Sent: Monday, June 06, 2005 11:51 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Rick Perry and separation of church and state
>
>
> Eugene continues to equate Perry's action with other quasi-official/
> quasi-private acts such as a governor giving a sermon at a church or
> Bush speaking at a religious pro-life rally. I agree that these
> latter events are of a political nature and will usually be perceived
> as such. I may be offended by them, but they are probably too close
> to the partisan/private roles of an official to transgress the EC in a
> real sense. But Perry's act is clearly different -- it is primarily
> official, and as such, he as the chief state official is giving the
> impression of favoring Christianity in the course of an official act.
> So he meets Eugene's #1 and probably #2 (as governments frequently
> speak through their officials, particularly when one represents the
> entire state).
>
>
> Steve Green
> Willamette University
>
>
> > Sandy Levinson writes:
> >
> >> As to spirit, why not try "avoid using one's official position to
> >> give needless offense to persons with different religious views by
> >> m
Re: Rational Basis v. Intermediate Scrutiny
I think we're trying to make a science out of an arena we all agreed ages ago was not susceptible to scientific calculation. But in response to your question: There is rationality review, there is rationality review with bite, there is intermediate review that is relaxed, there is stronger intermediate review, etc., etc. The Williamson v. Lee Optical standard makes it IMPOSSIBLE to invalidate a law, because the irrational satisfies a "rational standard." Williamson is clearly not the standard in Turner, which puts some force behind the question whether the penological interest is sufficiently legitimate. If one looks at the Turner case itself, you can see it. Perhaps I should have said that the Turner standard is the rationality standard of Cleburne in the Equal Protection context -- rationality with real bite? That standard is in the intermediate range, as opposed to either end of the spectrum. It is not the Williamson, its only-unconstitutional-if-you-actually-die-laughing-when-you-read-it standard. Marci In a message dated 6/6/2005 3:21:24 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Prof. Hamilton writes:"'Legitimate' is one of the buzz words forintermediate scrutiny."This came as quite a surprise to me. I always thoughtit was black-letter law that "legitimate" was part ofthe rational-basis standard. As recently as 2000, in Kimel v. Florida Bd ofRegents, the Supreme Court explicitly described"rational basis review" as requiring government actionto be "rationally related to a legitimate stateinterest."Am I missing something about the word "legitimate"?I also found Prof. Hamilton's subsequent messageperplexing, where she writes:"[The Turner 'reasonably related to a legitimatepenological interest' standard] is not rationalityreview, either. Once again, read Williamson. Thereis a difference of opinion here on interpretation ofSupreme Court opinions. I believe that is where weshould leave it."I've read Williamson, and I've looked carefully at thelanguage used in Turner and the rational basis cases,and I'm still not understanding Prof. Hamilton'sargument. Is she arguing that the Turner standard is notrationality review because it says "reasonablyrelated" instead of "rationally related"? But seeWashington v. Glucksburg (using the terms "reasonable"and "rational" interchangeably: "reasonable relationto a legitimate state interest"; "rationally relatedto legitimate government interests"; "Congress couldreasonably have determined"; "at least reasonablyrelated").If not, what is the argument? ___ 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.
Re: RLUIPA and Turner
Mark-- Thanks for your interpretation in your first para. I agree. I think with respect to the Williamson case, one must look at the underlying law to understood how far that case stretched the notion of "rationality" review. The law was the epitome of irrationality -- the distinction was patent nonsense and nothing more than a political line. The operative word is not "evil," but rather "an" evil. In other words, Williamson says that if a legislature has identified ANY evil, it can regulate without violating equal protection or substantive due process, and it will be considered "rational." That is the equivalent of no review at all. It is neither Turner nor Cleburne. Marci In a message dated 6/6/2005 3:55:55 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I disagree with Marci's view that that the RLUIPA standard is not stricter than the Turner standard. Nevertheless, I think Doug has misunderstood Marci's point with regard to use of the word "legitimate." I think Marci's point was not that the Court in Williamson v. Lee Optical used the word, but rather that it did not use the word. I think she is suggesting that a court will look more carefully when deciding whether the state's interest is "legitimate" than when deciding whether it meets the Lee Optical rational basis standard. Assuming that was her point, then I think I have to disagree with it, too. The Court in Lee Optical stated, "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." I find it hard to believe that a state interest in correcting "an evil" that is "at hand" could be seen as illegitimate. Thus it does not seem to me that Turner sets a higher standard than Lee Optical. But I may be missing something. Mark S. Scarberry Pepperdine University School of Law ___ 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.
RE: Rick Perry and separation of church and state
But a sermon by the Governor, or other statements by the
Governor, would leave the same impression. Moreover, if one simply
knows that the Governor is a devout Christian who views Christianity as
an important guide to what is right and what is wrong, then it would
seem pretty likely from that alone that the Governor's public policy
will be made, generally speaking, in a way that conforms with the tenets
of those the Governor deems Christians. I'd assume that if a governor
were a deeply committed feminist, environmentalist, libertarian,
Marxist, or whatever else, I would get the impression that public policy
will be made in a way that conforms with those tenets (subject to the
unavoidable compromises created by the political process). Why should I
expect anything different if the governor is a deeply committed
Christian?
And this, I think, ties to a broader point. People who belong
to religious minority groups known that they are in the minority. And
to the extent that religious views are tied to public policy
prescriptions -- quite likely when the religions deal with morality as
well as abstract theology -- those minority groups must surely realize,
even without the Governor's saying anything, that in their jurisdiction
public policy will generally be made in a way that conforms with the
tenets of the majority religious groups. So the impression mentioned in
the first sentence of Sandy's message would, I think, be there quite
independently of the governor's bill-signing practices; it's hard for me
then to see why these bill-signing practices are particularly violative
of the spirit of the Establishment Clause.
One may well say that government officials should try to avoid
rubbing the minority's nose in this fact of politics. At the same time,
as I mentioned before, even government officials who would honor this
guideline, if all else is equal, may find that all else is not equal,
and that it's politically important -- both personally and to their
ideological projects -- to public convey kinship to a certain
politico-religious group even when it reminds the religious minority of
what I presume the religious minority has known all along.
Eugene
Sandy Levinson writes:
> This "reasonable Texan" has the impression that only
> Christians are treated as "friends" by the Governor of Texas
> and that public policy will be made in a way that conforms
> with the tenets of those the Governor deems Christians. But,
> then, like Homer Plessy, I'm undoubtedly too quick to take
> offense, and I should realize that I'm being treated equally
> even if I'm most definitely in the back of Rick Perry's
> particular bus. (Though, in fairness to Perry, if I were a
> right-wing Republican like a member of our synagogue in
> Austin, who eagerly collaborated with the DeLay gerrymander,
> I'm sure I'd be welcome into the inner sanctum. Just as I
> doubt that Jim Wallis is one of the "Christian friends" of
> Rick Perry.)
>
> Sandy
>
>
>
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Monday, June 06, 2005 3:29 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Rick Perry and separation of church and state
>
> I agree that giving a sermon at a church isn't
> identical to signing a bill at a religious gathering. But
> the only "official" effect of signing a bill flows from its
> having been signed. Perry's signing it at a religious
> gathering in no way affects the contents of the bill, or any
> other legal obligation that anyone possesses. The choice of
> where and how to sign the bill is a political decision, aimed
> at sending a political message to a political constituency.
>
> Both a sermon and the signing convey the impression
> that the governor holds certain religious views, and thinks
> they are right. Neither the sermon nor the signing should, I
> think, lead a reasonable person to conclude that the State of
> Texas -- as an entity, as opposed to a group of people --
> holds certain religious views, whatever that might mean. And
> to say that Perry is conveying the impression that he holds
> certain religious views "in the course of an official act"
> still seems to me unresolved: Why, as a matter of
> constitutional law or constitutional spirit, should we care
> whether a political official is trying to strengthen his
> bonds with a politically influential religious group, in the
> course of a signing ceremony as opposed to in the course of a
> sermon? In both instances, it seems to me, the message ("I'm
> a Christian, and I'm trying to win more favor from a
> particular subgroup of Christians") is the same.
>
> Eugene
>
> > -Original Message-
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Steven K
> > Green
> > Sent: Monday, June 06, 2005 11:51 AM
> > To: Law & Religion issues for Law Academic
RE: RLUIPA and Turner
I disagree with Marci's view that that the RLUIPA standard is not stricter than the Turner standard. Nevertheless, I think Doug has misunderstood Marci's point with regard to use of the word "legitimate." I think Marci's point was not that the Court in Williamson v. Lee Optical used the word, but rather that it did not use the word. I think she is suggesting that a court will look more carefully when deciding whether the state's interest is "legitimate" than when deciding whether it meets the Lee Optical rational basis standard. Assuming that was her point, then I think I have to disagree with it, too. The Court in Lee Optical stated, "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." I find it hard to believe that a state interest in correcting "an evil" that is "at hand" could be seen as illegitimate. Thus it does not seem to me that Turner sets a higher standard than Lee Optical. But I may be missing something. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Monday, June 06, 2005 11:39 AM To: Law & Religion issues for Law Academics Subject: RE: RLUIPA and Turner No form of the word legitimate (Westlaw search term legit!) appears in Williamson v. Lee Optical. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, June 06, 2005 11:05 AM To: religionlaw@lists.ucla.edu Subject: Re: RLUIPA and Turner We have definitely beaten this horse to death, so just a quick reply. "Legitimate" is one of the buzz words for intermediate scrutiny. Compare Williamson v. Lee Optical. Marci In a message dated 6/6/2005 11:45:00 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The Turner court specified not just a rational connection between the regulation and the interest, but also that the interest need only be legitimate. ___ 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.
RE: Rick Perry and separation of church and state
This "reasonable Texan" has the impression that only Christians are
treated as "friends" by the Governor of Texas and that public policy
will be made in a way that conforms with the tenets of those the
Governor deems Christians. But, then, like Homer Plessy, I'm
undoubtedly too quick to take offense, and I should realize that I'm
being treated equally even if I'm most definitely in the back of Rick
Perry's particular bus. (Though, in fairness to Perry, if I were a
right-wing Republican like a member of our synagogue in Austin, who
eagerly collaborated with the DeLay gerrymander, I'm sure I'd be welcome
into the inner sanctum. Just as I doubt that Jim Wallis is one of the
"Christian friends" of Rick Perry.)
Sandy
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2005 3:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of Christians") is the same.
Eugene
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Steven K
> Green
> Sent: Monday, June 06, 2005 11:51 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Rick Perry and separation of church and state
>
>
> Eugene continues to equate Perry's action with other quasi-official/
> quasi-private acts such as a governor giving a sermon at a church or
> Bush speaking at a religious pro-life rally. I agree that these
> latter events are of a political nature and will usually be perceived
> as such. I may be offended by them, but they are probably too close
> to the partisan/private roles of an official to transgress the EC in a
> real sense. But Perry's act is clearly different -- it is primarily
> official, and as such, he as the chief state official is giving the
> impression of favoring Christianity in the course of an official act.
> So he meets Eugene's #1 and probably #2 (as governments frequently
> speak through their officials, particularly when one represents the
> entire state).
>
>
> Steve Green
> Willamette University
>
>
> > Sandy Levinson writes:
> >
> >> As to spirit, why not try "avoid using one's official position to
> >> give needless offense to persons with different religious views by
> >> making them feel marginal members of the community" (which
> I take it
> >> is close to, but not the same as, O'Connor's "endorsement"
> position).
> >> The problem as several postings are making clear, is what
> it means to
> >> "use one's official position." There are no bright lines,
> but I find
> >> Mark Tushnet persuasive that bill signing and the hoop-la
> >> attached to such is more "official" than a sermon on Sunday
> >> commenting on a bill-signing that occurred in a state
> >> building in Austin.
> >
> > Hmm -- even as spirit goes, that's a pretty amorphous
> term. Many
> > people are offended when the government -- either the courts or
> > government agencies, such as (most recently) the L.A. City
> Council as
> > to the L.A. city seal -- excises religious components from
> government
> > speech. Some people are, I suspect, offended if it there
> were a norm
> > that politicians could do signing ceremonies in front of
> every group
> > with which they want to cement political bonds (feminist,
> > environmentalist, pro-life, pro-choice, and so on) except religious
> > groups.
> >
> > How can these be distinguished under Sandy's
> definition? One way
> > might be to say that these people would be offended but
> wouldn't "feel
RE: RLUIPA and Turner
I also did a quick review
of intermediate scrutiny cases and didn't find any that use the term
"legitimate" to describe the requisite interest.
I think Marci was right
the first time to say that the key words for intermediate are "substantial" and
"important." Clark v. Jeter, 486 US 456, 461 (1988) ("To withstand
intermediate scrutiny, a statutory classification must be substantially related
to an important governmental objective."). Problem is that those terms
don't describe the test in Turner.
Again, if anyone knows of
a case using "legitimate" for intermediate scrutiny, I'd be interested
to get hold of it myself.
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas
LaycockSent: Monday, June 06, 2005 2:39 PMTo: Law &
Religion issues for Law AcademicsSubject: RE: RLUIPA and
Turner
No form of the word
legitimate (Westlaw search term legit!) appears in Williamson v. Lee
Optical.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]Sent: Monday, June 06, 2005 11:05
AMTo: religionlaw@lists.ucla.eduSubject: Re: RLUIPA and
Turner
We have definitely beaten this horse to death, so just a quick reply.
"Legitimate" is one of the buzz words for intermediate scrutiny.
Compare Williamson v. Lee Optical.
Marci
In a message dated 6/6/2005 11:45:00 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
The Turner court specified not just a rational
connection between the regulation and the interest, but also that the interest
need only be legitimate.
___
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.
Re: Rick Perry and separation of church and state
So, on one side we have the sermon (personal capacity, done to curry
political favor, OK), in the middle we have the signing ceremony), and
on the other side we have the official proclamation that Texas is a
Christian state (official capacity, done to curry political favor, I
assume not-OK until Eugene explain why it's OK). The question is why
the line is drawn so that the first and second fall into a single
group, rather than the second and third. I proposed money, and then
worried about a direct-indirect distinction. Eugene proposes
"reasonable perception of endorsement," which has all the problems
associated with perception tests. Are there other candidates?
Volokh, Eugene wrote:
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of Christians") is the same.
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of
Steven K Green
Sent: Monday, June 06, 2005 11:51 AM
To: Law & Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
Eugene continues to equate Perry's action with other
quasi-official/ quasi-private acts such as a governor giving
a sermon at a church or Bush speaking at a religious pro-life
rally. I agree that these latter events are of a political
nature and will usually be perceived as such. I may be
offended by them, but they are probably too close to the
partisan/private roles of an official to transgress the EC in
a real sense. But Perry's act is clearly different -- it is
primarily official, and as such, he as the chief state
official is giving the impression of favoring Christianity in
the course of an official act. So he meets Eugene's #1 and
probably #2 (as governments frequently speak through their
officials, particularly when one represents the entire state).
Steve Green
Willamette University
Sandy Levinson writes:
As to spirit, why not try "avoid using one's official position to
give needless offense to persons with different religious views by
making them feel marginal members of the community" (which
I take it
is close to, but not the same as, O'Connor's "endorsement"
position).
The problem as several postings are making clear, is what
it means to
"use one's official position." There are no bright lines,
but I find
Mark Tushnet persuasive that bill signing and the hoop-la
attached to such is more "official" than a sermon on Sunday
commenting on a bill-signing that occurred in a state
building in Austin.
Hmm -- even as spirit goes, that's a pretty amorphous
term. Many
people are offended when the government -- either the courts or
government agencies, such as (most recently) the L.A. City
Council as
to the L.A. city seal -- excises religious components from
government
speech. Some people are, I suspect, offended if it there
were a norm
that politicians could do signing ceremonies in front of
every group
with which they want to cement political bonds (feminist,
environmentalist, pro-life, pro-choice, and so on) except religious
groups.
How can these be distinguished under Sandy's
definition? One way
might be to say that these people would be offended but
wouldn't "feel
RE: Rick Perry and separation of church and state
Well, they're well-advised to do that if their overriding goal is to avoid "offense to persons with different religious views by making them feel marginal members of the community." The question is to what degree the Constitution either demands or even just points toward this being the overriding goal. Many politicians may well feel that this is *a* goal -- many politicians, as a matter of self-interest, good manners, and civic duty, try to avoid offense to a wide variety of groups -- but that it must compete with other goals, both selfish political ones (I want to get reelected) and less selfish ones (I want the support of the group so I can enact more of my agenda, which I think is genuinely for the greater good of the people). If one is trying to balance all these goals, then it seems to me that chief executives may be well-advised to do different things depending on how they weigh each goal. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Sanford Levinson > Sent: Monday, June 06, 2005 11:43 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > Isn't one moral of this discussion that chief executives are > well advised to sign bills in their offices (with lots of > invited guests, inevitably drawn from a skewed spectrum, to > be sure), rather than "go on the road" for such signings? If > the bill were signed in the Governor's office, would he tell > his secretary to focus on his "Christian friends" in > selecting the guest list? (Though I must say I think it > would be appropriate if George W. Bush had chosen, say, > Nantucket Island (see yesterday's NYTimes for the signing of > his tax cut bill :) ) > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Monday, June 06, 2005 2:34 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > Sandy Levinson writes: > > > As to spirit, why not try "avoid using one's official > position to give > > > needless offense to persons with different religious views by making > > them feel marginal members of the community" (which I take > it is close > > > to, but not the same as, O'Connor's "endorsement" position). The > > problem as several postings are making clear, is what it > means to "use > > > one's official position." There are no bright lines, but I > find Mark > > Tushnet persuasive that bill signing and the hoop-la > attached to such > > is more "official" than a sermon on Sunday commenting on a > > bill-signing that occurred in a state building in Austin. > > Hmm -- even as spirit goes, that's a pretty amorphous > term. Many people are offended when the government -- either > the courts or government agencies, such as (most recently) > the L.A. City Council as to the L.A. city seal -- excises > religious components from government speech. Some people > are, I suspect, offended if it there were a norm that > politicians could do signing ceremonies in front of every > group with which they want to cement political bonds > (feminist, environmentalist, pro-life, pro-choice, and so on) > except religious groups. > > How can these be distinguished under Sandy's > definition? One way might be to say that these people would > be offended but wouldn't "feel marginal members of the > community," presumably because they're members of a majority > group (Christians, religious people, and so on). But it's far > from clear to me that this would be right, either > legally/ethically or empirically: Presumably many Christians > or religious people may still feel "marginal" either because > they see themselves as members of a smaller subgroup (e.g., > especially devout > evangelicals) or because they feel that while they're the > majority in government, they are being made marginal by legal elites. > > Another might be to stress the "needless" -- excluding > religious materials from government speech may offend some, > but there's a "need" for such exclusion (presumably avoiding > offense to others). But if that's so, then I take it Rick > Perry could make similar arguments: There's a "need" to reach > out to an important religious group that feels alienated from > the legal system on certain issues, because of what it sees > as elite hostility to its views (on abortion, evolution, and > so on). And this is only if one limits need to > good-government need; if one includes a politican's political > needs or desires, then cementing bonds with an important > political group surely qualifies. > > Eugene > ___ > To post, send message to Religionlaw@lists.ucla.edu To > subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailma
RE: Rick Perry and separation of church and state
I've always been bothered by the secular purpose of the Lemon test. Of course there are multiple purposes for the Governor's actions, which are likely to coincide. 1. The Governor may genuinely want to endorse Christianity, or for that matter discharge what he feels is a religious obligation to witness his faith. (I have no idea whether it's true, but it's surely possible.) 2. The Governor may want to gain the votes of a certain group -- surely a secular purpose, albeit a selfish one. 3. The Governor may want to make a certain group feel good about other proposed policies of his Administration, which he thinks are good policies and which he wants them to support -- a secular purpose and one that is not just limited to his personal reelection goals. 4. The Governor may want to make a certain group seem politically more powerful, so that he and they, working as allies, can better accomplish other political goals. 5. The Governor may want to diminish the feelings of political alienation from and hostility to government institutions -- at least on certain issues, such as abortion -- by showing them that they are still important players in the political game though the Supreme Court has refused to let them enact their most preferred positions. Change this to a governor going to a meeting of a feminist / environmentalist / pro-gun-rights / pro-civil rights group to sign some bill backed by that group, and we can see exactly the same patterns. And even if one concludes that purpose 1 is unconstitutional when done as to religious ideologies, but constitutional when done as to other ideologies, purposes 2 through 5 remain eminently plausible. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Brian Landsberg > Sent: Monday, June 06, 2005 11:46 AM > To: Volokh, Eugene; religionlaw@lists.ucla.edu > Subject: RE: Rick Perry and separation of church and state > > > These exchanges reflect the squishiness of the "endorsement" > test. What about a return to Lemon: There seems to be no > secular purpose for the Governor's decision to move the > signing ceremony to church facilities. > > Another issue: assuming that the Governor has violated the > Establishment clause, who has standing to object? It seems > unlikely that the venue of signing invalidates the laws. So > would there be taxpayer standing? This seems questionable, > under Americans United, combined with Lyons. > > >>> [EMAIL PROTECTED] 6/6/2005 11:33:52 AM >>> > Sandy Levinson writes: > > > As to spirit, why not try "avoid using one's official > > position to give needless offense to persons with different > > religious views by making them feel marginal members of the > > community" (which I take it is close to, but not the same as, > > O'Connor's "endorsement" position). The problem as several > > postings are making clear, is what it means to "use one's > > official position." There are no bright lines, but I find > > Mark Tushnet persuasive that bill signing and the hoop-la > > attached to such is more "official" than a sermon on Sunday > > commenting on a bill-signing that occurred in a state > > building in Austin. > > Hmm -- even as spirit goes, that's a pretty amorphous > term. Many people are offended when the government -- either > the courts or government agencies, such as (most recently) > the L.A. City Council as to the L.A. city seal -- excises > religious components from government speech. Some people > are, I suspect, offended if it there were a norm that > politicians could do signing ceremonies in front of every > group with which they want to cement political bonds > (feminist, environmentalist, pro-life, pro-choice, and so on) > except religious groups. > > How can these be distinguished under Sandy's > definition? One way might be to say that these people would > be offended but wouldn't "feel marginal members of the > community," presumably because they're members of a majority > group (Christians, religious people, and so on). But it's far > from clear to me that this would be right, either > legally/ethically or empirically: Presumably many Christians > or religious people may still feel "marginal" either because > they see themselves as members of a smaller subgroup (e.g., > especially devout > evangelicals) or because they feel that while they're the > majority in government, they are being made marginal by legal elites. > > Another might be to stress the "needless" -- excluding > religious materials from government speech may offend some, > but there's a "need" for such exclusion (presumably avoiding > offense to others). But if that's so, then I take it Rick > Perry could make similar arguments: There's a "need" to reach > out to an important religious group that feels alienated from > the legal system on certain issues, beca
RE: Rick Perry and separation of church and state
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of Christians") is the same.
Eugene
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Steven K Green
> Sent: Monday, June 06, 2005 11:51 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Rick Perry and separation of church and state
>
>
> Eugene continues to equate Perry's action with other
> quasi-official/ quasi-private acts such as a governor giving
> a sermon at a church or Bush speaking at a religious pro-life
> rally. I agree that these latter events are of a political
> nature and will usually be perceived as such. I may be
> offended by them, but they are probably too close to the
> partisan/private roles of an official to transgress the EC in
> a real sense. But Perry's act is clearly different -- it is
> primarily official, and as such, he as the chief state
> official is giving the impression of favoring Christianity in
> the course of an official act. So he meets Eugene's #1 and
> probably #2 (as governments frequently speak through their
> officials, particularly when one represents the entire state).
>
>
> Steve Green
> Willamette University
>
>
> > Sandy Levinson writes:
> >
> >> As to spirit, why not try "avoid using one's official position to
> >> give needless offense to persons with different religious views by
> >> making them feel marginal members of the community" (which
> I take it
> >> is close to, but not the same as, O'Connor's "endorsement"
> position).
> >> The problem as several postings are making clear, is what
> it means to
> >> "use one's official position." There are no bright lines,
> but I find
> >> Mark Tushnet persuasive that bill signing and the hoop-la
> >> attached to such is more "official" than a sermon on Sunday
> >> commenting on a bill-signing that occurred in a state
> >> building in Austin.
> >
> > Hmm -- even as spirit goes, that's a pretty amorphous
> term. Many
> > people are offended when the government -- either the courts or
> > government agencies, such as (most recently) the L.A. City
> Council as
> > to the L.A. city seal -- excises religious components from
> government
> > speech. Some people are, I suspect, offended if it there
> were a norm
> > that politicians could do signing ceremonies in front of
> every group
> > with which they want to cement political bonds (feminist,
> > environmentalist, pro-life, pro-choice, and so on) except religious
> > groups.
> >
> > How can these be distinguished under Sandy's
> definition? One way
> > might be to say that these people would be offended but
> wouldn't "feel
> > marginal members of the community," presumably because
> they're members
> > of a majority group (Christians, religious people, and so on). But
> > it's far from clear to me that this would be right, either
> > legally/ethically or empirically: Presumably many Christians or
> > religious people may still feel "marginal" either because they see
> > themselves as members of a smaller subgroup (e.g., especially devout
> > evangelicals) or because they feel that while they're the
> majority in
> > government, they are being made marginal by legal elites.
> >
> > Another might be to stress the "needless" -- excluding
> religious
> > materials from government speech may offend some, but
> there's a "need"
> > for such exclusion (presumably avoiding offense to others). But if
> > that's so, then I take it Rick Perry could make similar arguments:
> > There's a "need" to reach out to an important religious group that
> > feels alienated from
RE: Rick Perry and separation of church and state
Isn't one moral of this discussion that chief executives are well advised to sign bills in their offices (with lots of invited guests, inevitably drawn from a skewed spectrum, to be sure), rather than "go on the road" for such signings? If the bill were signed in the Governor's office, would he tell his secretary to focus on his "Christian friends" in selecting the guest list? (Though I must say I think it would be appropriate if George W. Bush had chosen, say, Nantucket Island (see yesterday's NYTimes for the signing of his tax cut bill :) ) sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, June 06, 2005 2:34 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state Sandy Levinson writes: > As to spirit, why not try "avoid using one's official position to give > needless offense to persons with different religious views by making > them feel marginal members of the community" (which I take it is close > to, but not the same as, O'Connor's "endorsement" position). The > problem as several postings are making clear, is what it means to "use > one's official position." There are no bright lines, but I find Mark > Tushnet persuasive that bill signing and the hoop-la attached to such > is more "official" than a sermon on Sunday commenting on a > bill-signing that occurred in a state building in Austin. Hmm -- even as spirit goes, that's a pretty amorphous term. Many people are offended when the government -- either the courts or government agencies, such as (most recently) the L.A. City Council as to the L.A. city seal -- excises religious components from government speech. Some people are, I suspect, offended if it there were a norm that politicians could do signing ceremonies in front of every group with which they want to cement political bonds (feminist, environmentalist, pro-life, pro-choice, and so on) except religious groups. How can these be distinguished under Sandy's definition? One way might be to say that these people would be offended but wouldn't "feel marginal members of the community," presumably because they're members of a majority group (Christians, religious people, and so on). But it's far from clear to me that this would be right, either legally/ethically or empirically: Presumably many Christians or religious people may still feel "marginal" either because they see themselves as members of a smaller subgroup (e.g., especially devout evangelicals) or because they feel that while they're the majority in government, they are being made marginal by legal elites. Another might be to stress the "needless" -- excluding religious materials from government speech may offend some, but there's a "need" for such exclusion (presumably avoiding offense to others). But if that's so, then I take it Rick Perry could make similar arguments: There's a "need" to reach out to an important religious group that feels alienated from the legal system on certain issues, because of what it sees as elite hostility to its views (on abortion, evolution, and so on). And this is only if one limits need to good-government need; if one includes a politican's political needs or desires, then cementing bonds with an important political group surely qualifies. Eugene ___ 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.
Rational Basis v. Intermediate Scrutiny
Prof. Hamilton writes: "'Legitimate' is one of the buzz words for intermediate scrutiny." This came as quite a surprise to me. I always thought it was black-letter law that "legitimate" was part of the rational-basis standard. As recently as 2000, in Kimel v. Florida Bd of Regents, the Supreme Court explicitly described "rational basis review" as requiring government action to be "rationally related to a legitimate state interest." Am I missing something about the word "legitimate"? I also found Prof. Hamilton's subsequent message perplexing, where she writes: "[The Turner 'reasonably related to a legitimate penological interest' standard] is not rationality review, either. Once again, read Williamson. There is a difference of opinion here on interpretation of Supreme Court opinions. I believe that is where we should leave it." I've read Williamson, and I've looked carefully at the language used in Turner and the rational basis cases, and I'm still not understanding Prof. Hamilton's argument. Is she arguing that the Turner standard is not rationality review because it says "reasonably related" instead of "rationally related"? But see Washington v. Glucksburg (using the terms "reasonable" and "rational" interchangeably: "reasonable relation to a legitimate state interest"; "rationally related to legitimate government interests"; "Congress could reasonably have determined"; "at least reasonably related"). If not, what is the argument? __ Discover Yahoo! Find restaurants, movies, travel and more fun for the weekend. Check it out! http://discover.yahoo.com/weekend.html ___ 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.
RE: Rick Perry and separation of church and state
Eugene continues to equate Perry's action with other quasi-official/ quasi-private acts such as a governor giving a sermon at a church or Bush speaking at a religious pro-life rally. I agree that these latter events are of a political nature and will usually be perceived as such. I may be offended by them, but they are probably too close to the partisan/private roles of an official to transgress the EC in a real sense. But Perry's act is clearly different -- it is primarily official, and as such, he as the chief state official is giving the impression of favoring Christianity in the course of an official act. So he meets Eugene's #1 and probably #2 (as governments frequently speak through their officials, particularly when one represents the entire state). Steve Green Willamette University > Sandy Levinson writes: > >> As to spirit, why not try "avoid using one's official >> position to give needless offense to persons with different >> religious views by making them feel marginal members of the >> community" (which I take it is close to, but not the same as, >> O'Connor's "endorsement" position). The problem as several >> postings are making clear, is what it means to "use one's >> official position." There are no bright lines, but I find >> Mark Tushnet persuasive that bill signing and the hoop-la >> attached to such is more "official" than a sermon on Sunday >> commenting on a bill-signing that occurred in a state >> building in Austin. > > Hmm -- even as spirit goes, that's a pretty amorphous term. > Many people are offended when the government -- either the courts or > government agencies, such as (most recently) the L.A. City Council as to > the L.A. city seal -- excises religious components from government > speech. Some people are, I suspect, offended if it there were a norm > that politicians could do signing ceremonies in front of every group > with which they want to cement political bonds (feminist, > environmentalist, pro-life, pro-choice, and so on) except religious > groups. > > How can these be distinguished under Sandy's definition? One > way might be to say that these people would be offended but wouldn't > "feel marginal members of the community," presumably because they're > members of a majority group (Christians, religious people, and so on). > But it's far from clear to me that this would be right, either > legally/ethically or empirically: Presumably many Christians or > religious people may still feel "marginal" either because they see > themselves as members of a smaller subgroup (e.g., especially devout > evangelicals) or because they feel that while they're the majority in > government, they are being made marginal by legal elites. > > Another might be to stress the "needless" -- excluding religious > materials from government speech may offend some, but there's a "need" > for such exclusion (presumably avoiding offense to others). But if > that's so, then I take it Rick Perry could make similar arguments: > There's a "need" to reach out to an important religious group that feels > alienated from the legal system on certain issues, because of what it > sees as elite hostility to its views (on abortion, evolution, and so > on). And this is only if one limits need to good-government need; if > one includes a politican's political needs or desires, then cementing > bonds with an important political group surely qualifies. > > Eugene > ___ > 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.
RE: Rick Perry and separation of church and state
These exchanges reflect the squishiness of the "endorsement" test. What about a return to Lemon: There seems to be no secular purpose for the Governor's decision to move the signing ceremony to church facilities. Another issue: assuming that the Governor has violated the Establishment clause, who has standing to object? It seems unlikely that the venue of signing invalidates the laws. So would there be taxpayer standing? This seems questionable, under Americans United, combined with Lyons. >>> [EMAIL PROTECTED] 6/6/2005 11:33:52 AM >>> Sandy Levinson writes: > As to spirit, why not try "avoid using one's official > position to give needless offense to persons with different > religious views by making them feel marginal members of the > community" (which I take it is close to, but not the same as, > O'Connor's "endorsement" position). The problem as several > postings are making clear, is what it means to "use one's > official position." There are no bright lines, but I find > Mark Tushnet persuasive that bill signing and the hoop-la > attached to such is more "official" than a sermon on Sunday > commenting on a bill-signing that occurred in a state > building in Austin. Hmm -- even as spirit goes, that's a pretty amorphous term. Many people are offended when the government -- either the courts or government agencies, such as (most recently) the L.A. City Council as to the L.A. city seal -- excises religious components from government speech. Some people are, I suspect, offended if it there were a norm that politicians could do signing ceremonies in front of every group with which they want to cement political bonds (feminist, environmentalist, pro-life, pro-choice, and so on) except religious groups. How can these be distinguished under Sandy's definition? One way might be to say that these people would be offended but wouldn't "feel marginal members of the community," presumably because they're members of a majority group (Christians, religious people, and so on). But it's far from clear to me that this would be right, either legally/ethically or empirically: Presumably many Christians or religious people may still feel "marginal" either because they see themselves as members of a smaller subgroup (e.g., especially devout evangelicals) or because they feel that while they're the majority in government, they are being made marginal by legal elites. Another might be to stress the "needless" -- excluding religious materials from government speech may offend some, but there's a "need" for such exclusion (presumably avoiding offense to others). But if that's so, then I take it Rick Perry could make similar arguments: There's a "need" to reach out to an important religious group that feels alienated from the legal system on certain issues, because of what it sees as elite hostility to its views (on abortion, evolution, and so on). And this is only if one limits need to good-government need; if one includes a politican's political needs or desires, then cementing bonds with an important political group surely qualifies. Eugene ___ 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.
RE: RLUIPA and Turner
No form of the word legitimate (Westlaw search term legit!) appears in Williamson v. Lee Optical. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Monday, June 06, 2005 11:05 AMTo: religionlaw@lists.ucla.eduSubject: Re: RLUIPA and Turner We have definitely beaten this horse to death, so just a quick reply. "Legitimate" is one of the buzz words for intermediate scrutiny. Compare Williamson v. Lee Optical. Marci In a message dated 6/6/2005 11:45:00 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The Turner court specified not just a rational connection between the regulation and the interest, but also that the interest need only be legitimate. ___ 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.
RE: Rick Perry and separation of church and state
Sandy Levinson writes: > As to spirit, why not try "avoid using one's official > position to give needless offense to persons with different > religious views by making them feel marginal members of the > community" (which I take it is close to, but not the same as, > O'Connor's "endorsement" position). The problem as several > postings are making clear, is what it means to "use one's > official position." There are no bright lines, but I find > Mark Tushnet persuasive that bill signing and the hoop-la > attached to such is more "official" than a sermon on Sunday > commenting on a bill-signing that occurred in a state > building in Austin. Hmm -- even as spirit goes, that's a pretty amorphous term. Many people are offended when the government -- either the courts or government agencies, such as (most recently) the L.A. City Council as to the L.A. city seal -- excises religious components from government speech. Some people are, I suspect, offended if it there were a norm that politicians could do signing ceremonies in front of every group with which they want to cement political bonds (feminist, environmentalist, pro-life, pro-choice, and so on) except religious groups. How can these be distinguished under Sandy's definition? One way might be to say that these people would be offended but wouldn't "feel marginal members of the community," presumably because they're members of a majority group (Christians, religious people, and so on). But it's far from clear to me that this would be right, either legally/ethically or empirically: Presumably many Christians or religious people may still feel "marginal" either because they see themselves as members of a smaller subgroup (e.g., especially devout evangelicals) or because they feel that while they're the majority in government, they are being made marginal by legal elites. Another might be to stress the "needless" -- excluding religious materials from government speech may offend some, but there's a "need" for such exclusion (presumably avoiding offense to others). But if that's so, then I take it Rick Perry could make similar arguments: There's a "need" to reach out to an important religious group that feels alienated from the legal system on certain issues, because of what it sees as elite hostility to its views (on abortion, evolution, and so on). And this is only if one limits need to good-government need; if one includes a politican's political needs or desires, then cementing bonds with an important political group surely qualifies. Eugene ___ 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.
RE: Rick Perry and separation of church and state
As to spirit, why not try "avoid using one's official position to give needless offense to persons with different religious views by making them feel marginal members of the community" (which I take it is close to, but not the same as, O'Connor's "endorsement" position). The problem as several postings are making clear, is what it means to "use one's official position." There are no bright lines, but I find Mark Tushnet persuasive that bill signing and the hoop-la attached to such is more "official" than a sermon on Sunday commenting on a bill-signing that occurred in a state building in Austin. sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, June 06, 2005 12:55 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state Well, you can say it -- but why exactly would we think that this is accurate? Now it may well be accurate; I don't think it's clear that Perry's actions were consistent with the spirit of the Establishment Clause. But the opposite seems to me far from clear, too. The question of course is what exactly is the "'spirit' of the Establishment Clause." Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Sanford > Levinson > Sent: Monday, June 06, 2005 9:48 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > Since I'm not an originalist, I'm not going to take refuge in what > some Baptist supporters (ironically enough, perhaps) of the First > Amendment might have believed it meant. (I believe that many had Roger > Williams's view of the relationship between "the garden and the > wilderness.) And I've already indicated that I'm wary about going to > a court to get it to enjoin a demagogic politician (like my governor) > from "playing to the base." Rather, it has to do with what we should > be teaching our students and, ultimately, our fellow citizens, about > the terribly complex issue of the relationship between polity and > religion. If we can't say that Rick Perry violated the "spirit" of > the Establishment Clause, even if no law suit can properly ensue, then > I think that something is terribly, terribly wrong. > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > Eugene > Sent: Monday, June 06, 2005 12:41 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > I'm afraid that Sandy's analysis is missing a step. If part of the > point of the Establishment Clause was to protect religion from harm > that flows from undue mixing with the state by enunciating a legal > prohibition on certain government conduct that would harm religion, > then the question remains exactly what is prohibited. > > It's far from clear that "some of us may be offended by turning a > religious event into a political rally" goes far towards answering > that question. Some of us may be offended by a minister being elected > to a legislature. Some of us may be offended by the government's > provision of any religious accommodations, which require the > government to judge religious objectors' sincerity. Some of us may be > offended by having cities named Providence, Rhode Island or the Sangre > de Cristo mountains, which dilute the holiness of the terms Providence > and Blood of Christ. > > So it seems to me that the relevant questions are, > (1) was part of the point of the Establishment Clause to "protect the > 'garden' of the church against the 'wilderness' of mundane and seamy > politics," > (2) to what extent was this meant to be accomplished through a legal > prohibition on government conduct that sufficiently threatens this, > and to what extent through other means (for instance, by imposing a > narrower prohibition, which people hoped would achieve the broader > goal), and > (3) what exactly the scope of this prohibition. > > What's offensive and what's not tells us little about these items, it > seems to me. Even what is offensive to those who ratified the First > Amendment (or the Fourteenth) doesn't tell us that much about them, > since I imagine that most legislators don't ban everything that > offends them. > > Eugene > > Sandy Levinson writes: > > > If part of the point of the Establishment Clause was to protect the > > "garden" of the church against the "wilderness" > > of mundane and seamy politics, then the answer would > clearly seem to > > be yes. > > > > sandy > > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > > Eugene > > Sent: Monday, June 06, 2005 12:27 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Rick Perry and separation o
RE: Rick Perry and separation of church and state
Well, you can say it -- but why exactly would we think that this is accurate? Now it may well be accurate; I don't think it's clear that Perry's actions were consistent with the spirit of the Establishment Clause. But the opposite seems to me far from clear, too. The question of course is what exactly is the "'spirit' of the Establishment Clause." Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Sanford Levinson > Sent: Monday, June 06, 2005 9:48 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > Since I'm not an originalist, I'm not going to take refuge in > what some Baptist supporters (ironically enough, perhaps) of > the First Amendment might have believed it meant. (I believe > that many had Roger Williams's view of the relationship > between "the garden and the wilderness.) And I've already > indicated that I'm wary about going to a court to get it to > enjoin a demagogic politician (like my governor) from > "playing to the base." Rather, it has to do with what we > should be teaching our students and, ultimately, our fellow > citizens, about the terribly complex issue of the > relationship between polity and religion. If we can't say > that Rick Perry violated the "spirit" of the Establishment > Clause, even if no law suit can properly ensue, then I think > that something is terribly, terribly wrong. > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Monday, June 06, 2005 12:41 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > I'm afraid that Sandy's analysis is missing a step. If > part of the point of the Establishment Clause was to protect > religion from harm that flows from undue mixing with the > state by enunciating a legal prohibition on certain > government conduct that would harm religion, then the > question remains exactly what is prohibited. > > It's far from clear that "some of us may be offended by > turning a religious event into a political rally" goes far > towards answering that question. Some of us may be offended > by a minister being elected to a legislature. Some of us may > be offended by the government's provision of any religious > accommodations, which require the government to judge > religious objectors' sincerity. Some of us may be offended > by having cities named Providence, Rhode Island or the Sangre > de Cristo mountains, which dilute the holiness of the terms > Providence and Blood of Christ. > > So it seems to me that the relevant questions are, > (1) was part of the point of the Establishment Clause > to "protect the 'garden' of the church against the > 'wilderness' of mundane and seamy politics," > (2) to what extent was this meant to be accomplished > through a legal prohibition on government conduct that > sufficiently threatens this, and to what extent through other > means (for instance, by imposing a narrower prohibition, > which people hoped would achieve the broader goal), and > (3) what exactly the scope of this prohibition. > > What's offensive and what's not tells us little about > these items, it seems to me. Even what is offensive to those > who ratified the First Amendment (or the Fourteenth) doesn't > tell us that much about them, since I imagine that most > legislators don't ban everything that offends them. > > Eugene > > Sandy Levinson writes: > > > If part of the point of the Establishment Clause was to protect the > > "garden" of the church against the "wilderness" > > of mundane and seamy politics, then the answer would > clearly seem to > > be yes. > > > > sandy > > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > > Eugene > > Sent: Monday, June 06, 2005 12:27 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Rick Perry and separation of church and state > > > > I appreciate Will's and Sandy's point, but of course lots of > people > > find lots of things religiously offensive for various reasons. The > > question is whether this perception of offense on the part of some > > -- or for that matter joy on the part of others -- makes it an > > Establishment Clause violation. > > > > Eugene > > > > > -Original Message- > > > From: [EMAIL PROTECTED] > > > [mailto:[EMAIL PROTECTED] On Behalf Of Sanford > > > Levinson > > > Sent: Monday, June 06, 2005 9:12 AM > > > To: Law & Religion issues for Law Academics > > > Subject: RE: Rick Perry and separation of church and state > > > > > > > > > I am very glad to stand corrected on this point! > > > > > > sandy > > > > > > -Original Message- > > > From: [EMAIL PROTECTED] > > > [mailto:[EMAIL PROTEC
Re: Rick Perry and separation of church and state
I've been wondering about the "personal/official capacity" distinction that seems to matter in these contexts. One take on Perry's action is that he signs bills in his official capacity (although apparently not the constitutional amendment, which he signed in no official capacity at all, according to the story), but that he selects the location at which to sign bills in his personal capacity. (I take Eugene to be suggesting this, although I stand ready to be corrected). My basic question here is, How do we know when a person occupying a public office is acting in his/her personal rather than official capacity? Now, suppose a majority of a legislature or city council select a minister to deliver a prayer at the opening of the session. Are they acting in their official capacity or in their personal capacity? I take it that it has to matter that the minister might be paid out of official funds; otherwise Marsh v. Chambers would be an incredibly easy case. Here the expenditure of public funds is a *direct* (if I might so put it) consequence of the legislators' choices. (What if all the ministers "donated" their time to the legislature/city council?) I assume that some state funds were spent in transporting Perry to the church, providing him with security, etc. Does that fact alone make his choice of location an act taken in his official capacity? (I'm assuming that there are excess transportation and security costs associated with signing the bill at the church compared to signing it, eg., at the executive mansion.) Or, does it matter that these public funds are spent only as an *indirect* consequence of Perry's choice of signing venue? I assume we'd be sure that he made the choice in his personal capacity if he reimbursed the state for these excess expenditures. But, if he doesn't, what's the account of why the indirect causation of the expenditure demonstrates that he was acting in his personal capacity? Volokh, Eugene wrote: I appreciate Will's and Sandy's point, but of course lots of people find lots of things religiously offensive for various reasons. The question is whether this perception of offense on the part of some -- or for that matter joy on the part of others -- makes it an Establishment Clause violation. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Sanford Levinson Sent: Monday, June 06, 2005 9:12 AM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state I am very glad to stand corrected on this point! sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Will Linden Sent: Sunday, June 05, 2005 11:57 PM To: Law & Religion issues for Law Academics Subject: Re: Rick Perry and separation of church and state Sanford Levinson wrote: he signed represents "Christianity in action." But isn't there something truly offensive about turning a bill-signing into a religious rally? As the Times piece pointed out, some of us may be offended by turning a religious event into a political rally. ___ 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. ___ 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 a
RE: Rick Perry and separation of church and state
I too am not sure that we can always ignore the official aspect of the event for Establishment Clause purposes. But neither can we always ignore the Governor's being a person as well as a government official. The questions are how we decide which prevails, and what the consequences of that would be. I'm not positive what the right answer ought to be here, but I lean in the direction of saying that the Governor's signing of a bill is a political act of a politician. No legal consequences flow from the venue in which it is signed. If he had signed it a few minutes before at his office, and then had a duplicate signing ceremony at a church, the legal consequences would have been identical. This strikes me as the Governor making a political statement to his supporters, not as an endorsement by the state of Texas. Things might be different if a multimember Legislature decides to do something; there, the personal might be dominated by the governmental, precisely because the decision is more clearly made by the body as a body. But as to the Governor, I at least think that the case for this being an Establishment Clause violation -- for instance, because it's a governmental endorsement of religion, rather than an individual's endorsement of religion -- is not proven. By the way, which of the following do people think a reasonable person, observing the Governor's actions, will think: (1) By this act, Rick Perry, who is the Governor of the State of Texas, endorses Christianity, and wants to cement his relationship with a particular religious bloc (a certain subset of politically active Christians). (2) By this act, the State of Texas endorses Christianity, whatever that means. (3) Both of the above. (4) None of the above. (5) All of this shows the weakness of asking whether a reasonable person would perceive something as an endorsement of religion. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of A.E. > Brownstein > Sent: Monday, June 06, 2005 9:42 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > I understand Eugene's argument here -- but when official and > personal > conduct are mixed together, I'm not sure that we can always > ignore the > official aspect of the event for Establishment Clause purposes. A > government official participating in church activities, such > as giving a > sermon, can be understood as exclusively personal. I don't > see how signing > a bill can lose its official meaning. Indeed, I would think > the official > aspect of the conduct dominates the personal dimension of the event. > > If the legislature officially opens its session in a house of worship > rather than a governmental building, would that have > Establishment Clause > implications, Eugene? > > Alan Brownstein > UC Davis > > > > > At 01:59 AM 6/6/2005 -0700, you wrote: > > I'm not sure quite how offensive this is; it strikes me as > >little different from "giv[ing] a sermon celebrating that > some piece of > >legislation that [the Governor] signed represents 'Christianity in > >action.'" How offensive one finds that depends on the usual > questions > >about the proper role of religious beliefs -- including > publicly stated > >religious beliefs -- in legislation. > > > > But even if it is "truly offensive," isn't there > something of > >a leap from that to a violation of the Establishment Clause? > Choosing > >to sign a bill in a particular place is a political act on the > >governor's part; the location has no significance to the > legal meaning > >or the effectiveness of the bill. I take it that the Establishment > >Clause argument would be that the symbolism of the act endorses > >religion, but I don't see that as materially different from > the sermon > >that Sandy would acknowledges is permissible. I take it that Sandy > >thinks the sermon is not unconstitutional because it's the > governor's > >personal endorsement, and not the State of Texas's endorsement; the > >same seems to me true of the signing ceremony. > > > > Eugene > > > >-Original Message- > >From: [EMAIL PROTECTED] > >[mailto:[EMAIL PROTECTED] On Behalf Of Sanford > >Levinson > >Sent: Sunday, June 05, 2005 7:49 PM > >To: Law & Religion issues for Law Academics > >Subject: RE: Rick Perry and separation of church and state > > > > > >You will find below the first sentence of a story that will > appear in > >tomorrow's New York Times. Rather amazingly, incidentally, the > >Governor's staff is claiming that it was an ecumininal gathering > >because the benediction was given by a "Jew for Jesus." > > > >In any event, is one being "oversensitive" to believe that > this makes a > >travesty of the Establishment Clause? I have no argument with the > >proposition that
RE: Rick Perry and separation of church and state
Since I'm not an originalist, I'm not going to take refuge in what some Baptist supporters (ironically enough, perhaps) of the First Amendment might have believed it meant. (I believe that many had Roger Williams's view of the relationship between "the garden and the wilderness.) And I've already indicated that I'm wary about going to a court to get it to enjoin a demagogic politician (like my governor) from "playing to the base." Rather, it has to do with what we should be teaching our students and, ultimately, our fellow citizens, about the terribly complex issue of the relationship between polity and religion. If we can't say that Rick Perry violated the "spirit" of the Establishment Clause, even if no law suit can properly ensue, then I think that something is terribly, terribly wrong. sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, June 06, 2005 12:41 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state I'm afraid that Sandy's analysis is missing a step. If part of the point of the Establishment Clause was to protect religion from harm that flows from undue mixing with the state by enunciating a legal prohibition on certain government conduct that would harm religion, then the question remains exactly what is prohibited. It's far from clear that "some of us may be offended by turning a religious event into a political rally" goes far towards answering that question. Some of us may be offended by a minister being elected to a legislature. Some of us may be offended by the government's provision of any religious accommodations, which require the government to judge religious objectors' sincerity. Some of us may be offended by having cities named Providence, Rhode Island or the Sangre de Cristo mountains, which dilute the holiness of the terms Providence and Blood of Christ. So it seems to me that the relevant questions are, (1) was part of the point of the Establishment Clause to "protect the 'garden' of the church against the 'wilderness' of mundane and seamy politics," (2) to what extent was this meant to be accomplished through a legal prohibition on government conduct that sufficiently threatens this, and to what extent through other means (for instance, by imposing a narrower prohibition, which people hoped would achieve the broader goal), and (3) what exactly the scope of this prohibition. What's offensive and what's not tells us little about these items, it seems to me. Even what is offensive to those who ratified the First Amendment (or the Fourteenth) doesn't tell us that much about them, since I imagine that most legislators don't ban everything that offends them. Eugene Sandy Levinson writes: > If part of the point of the Establishment Clause was to protect the > "garden" of the church against the "wilderness" > of mundane and seamy politics, then the answer would clearly seem to > be yes. > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, > Eugene > Sent: Monday, June 06, 2005 12:27 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > I appreciate Will's and Sandy's point, but of course lots of people > find lots of things religiously offensive for various reasons. The > question is whether this perception of offense on the part of some > -- or for that matter joy on the part of others -- makes it an > Establishment Clause violation. > > Eugene > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Sanford > > Levinson > > Sent: Monday, June 06, 2005 9:12 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: Rick Perry and separation of church and state > > > > > > I am very glad to stand corrected on this point! > > > > sandy > > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Will Linden > > Sent: Sunday, June 05, 2005 11:57 PM > > To: Law & Religion issues for Law Academics > > Subject: Re: Rick Perry and separation of church and state > > > > Sanford Levinson wrote: > > > > > he signed represents "Christianity in action." But isn't there > > > something truly offensive about turning a bill-signing into a > > > religious rally? > > > > As the Times piece pointed out, some of us may be offended by > > turning a religious event into a political rally. > > > > > > ___ > > 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 sub
RE: Rick Perry and separation of church and state
I understand Eugene's argument here -- but when official and personal conduct are mixed together, I'm not sure that we can always ignore the official aspect of the event for Establishment Clause purposes. A government official participating in church activities, such as giving a sermon, can be understood as exclusively personal. I don't see how signing a bill can lose its official meaning. Indeed, I would think the official aspect of the conduct dominates the personal dimension of the event. If the legislature officially opens its session in a house of worship rather than a governmental building, would that have Establishment Clause implications, Eugene? Alan Brownstein UC Davis At 01:59 AM 6/6/2005 -0700, you wrote: I'm not sure quite how offensive this is; it strikes me as little different from "giv[ing] a sermon celebrating that some piece of legislation that [the Governor] signed represents 'Christianity in action.'" How offensive one finds that depends on the usual questions about the proper role of religious beliefs -- including publicly stated religious beliefs -- in legislation. But even if it is "truly offensive," isn't there something of a leap from that to a violation of the Establishment Clause? Choosing to sign a bill in a particular place is a political act on the governor's part; the location has no significance to the legal meaning or the effectiveness of the bill. I take it that the Establishment Clause argument would be that the symbolism of the act endorses religion, but I don't see that as materially different from the sermon that Sandy would acknowledges is permissible. I take it that Sandy thinks the sermon is not unconstitutional because it's the governor's personal endorsement, and not the State of Texas's endorsement; the same seems to me true of the signing ceremony. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Sunday, June 05, 2005 7:49 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state You will find below the first sentence of a story that will appear in tomorrow's New York Times. Rather amazingly, incidentally, the Governor's staff is claiming that it was an ecumininal gathering because the benediction was given by a "Jew for Jesus." In any event, is one being "oversensitive" to believe that this makes a travesty of the Establishment Clause? I have no argument with the proposition that the Governor can attend whatever church he wants and even give a sermon celebrating that some piece of legislation that he signed represents "Christianity in action." But isn't there something truly offensive about turning a bill-signing into a religious rally? Assume, incidentally, that the governor announces well in advance that he's going to sign a bill in a Christian church, at which, by stipulation, Jews might not feel altogether comfortable inasmuch as the church in question rather publicly endorses the view that Jews are damned because of our refusal to recognize Jesus as the Messiah. (I would be rather surprised if that is not in fact the view of the "evangelical school" in question.) Is there a non-frivolous argument that a court should enjoin the signing? (But of course Gov. Perry, no doubt, would probably like nothing more than such a display of "judicial overreaching," especially if it's from the despised federal judiciary, inasmuch as he is getting ready to run for re-election against Sen. Kay Bailey Hutchinson, who in Texas counts as a distinctly moderate and sensible Republican (who would receive lots of Democratic support).) sandy ___ 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.
RE: Rick Perry and separation of church and state
I'm afraid that Sandy's analysis is missing a step. If part of the point of the Establishment Clause was to protect religion from harm that flows from undue mixing with the state by enunciating a legal prohibition on certain government conduct that would harm religion, then the question remains exactly what is prohibited. It's far from clear that "some of us may be offended by turning a religious event into a political rally" goes far towards answering that question. Some of us may be offended by a minister being elected to a legislature. Some of us may be offended by the government's provision of any religious accommodations, which require the government to judge religious objectors' sincerity. Some of us may be offended by having cities named Providence, Rhode Island or the Sangre de Cristo mountains, which dilute the holiness of the terms Providence and Blood of Christ. So it seems to me that the relevant questions are, (1) was part of the point of the Establishment Clause to "protect the 'garden' of the church against the 'wilderness' of mundane and seamy politics," (2) to what extent was this meant to be accomplished through a legal prohibition on government conduct that sufficiently threatens this, and to what extent through other means (for instance, by imposing a narrower prohibition, which people hoped would achieve the broader goal), and (3) what exactly the scope of this prohibition. What's offensive and what's not tells us little about these items, it seems to me. Even what is offensive to those who ratified the First Amendment (or the Fourteenth) doesn't tell us that much about them, since I imagine that most legislators don't ban everything that offends them. Eugene Sandy Levinson writes: > If part of the point of the Establishment Clause was to > protect the "garden" of the church against the "wilderness" > of mundane and seamy politics, then the answer would clearly > seem to be yes. > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Volokh, Eugene > Sent: Monday, June 06, 2005 12:27 PM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > I appreciate Will's and Sandy's point, but of course > lots of people find lots of things religiously offensive for > various reasons. The question is whether this perception of > offense on the part of some > -- or for that matter joy on the part of others -- makes it > an Establishment Clause violation. > > Eugene > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Sanford > > Levinson > > Sent: Monday, June 06, 2005 9:12 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: Rick Perry and separation of church and state > > > > > > I am very glad to stand corrected on this point! > > > > sandy > > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Will Linden > > Sent: Sunday, June 05, 2005 11:57 PM > > To: Law & Religion issues for Law Academics > > Subject: Re: Rick Perry and separation of church and state > > > > Sanford Levinson wrote: > > > > > he signed represents "Christianity in action." But isn't there > > > something truly offensive about turning a bill-signing into a > > > religious rally? > > > > As the Times piece pointed out, some of us may be offended by > > turning a religious event into a political rally. > > > > > > ___ > > 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. > > > ___ > 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 lis
RE: Rick Perry and separation of church and state
If part of the point of the Establishment Clause was to protect the "garden" of the church against the "wilderness" of mundane and seamy politics, then the answer would clearly seem to be yes. sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, June 06, 2005 12:27 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state I appreciate Will's and Sandy's point, but of course lots of people find lots of things religiously offensive for various reasons. The question is whether this perception of offense on the part of some -- or for that matter joy on the part of others -- makes it an Establishment Clause violation. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Sanford > Levinson > Sent: Monday, June 06, 2005 9:12 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > I am very glad to stand corrected on this point! > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Will Linden > Sent: Sunday, June 05, 2005 11:57 PM > To: Law & Religion issues for Law Academics > Subject: Re: Rick Perry and separation of church and state > > Sanford Levinson wrote: > > > he signed represents "Christianity in action." But isn't there > > something truly offensive about turning a bill-signing into a > > religious rally? > > As the Times piece pointed out, some of us may be offended by > turning a religious event into a political rally. > > > ___ > 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. > ___ 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.
RE: Rick Perry and separation of church and state
I appreciate Will's and Sandy's point, but of course lots of people find lots of things religiously offensive for various reasons. The question is whether this perception of offense on the part of some -- or for that matter joy on the part of others -- makes it an Establishment Clause violation. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Sanford Levinson > Sent: Monday, June 06, 2005 9:12 AM > To: Law & Religion issues for Law Academics > Subject: RE: Rick Perry and separation of church and state > > > I am very glad to stand corrected on this point! > > sandy > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Will Linden > Sent: Sunday, June 05, 2005 11:57 PM > To: Law & Religion issues for Law Academics > Subject: Re: Rick Perry and separation of church and state > > Sanford Levinson wrote: > > > he signed represents "Christianity in action." But isn't there > > something truly offensive about turning a bill-signing into a > > religious rally? > > As the Times piece pointed out, some of us may be offended > by turning a religious event into a political rally. > > > ___ > 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. > ___ 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.
Re: RLUIPA and Turner
It's not rationality review, either. Once again, read Williamson. There is a difference of opinion here on interpretation of Supreme Court opinions. I believe that is where we should leave it. Marci In a message dated 6/6/2005 11:11:58 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: For the record: The standard in Turner, and the standard in O'Lone (which cites and quotes Turner copiously throughout), is identical: "reasonably related to a legitimate penological interest." Even this deferential standard was not met in Turner, because the prisoner's status as married or unmarried had no discernable effect on anybody inside the prison. But note: the interest need not be even modestly important; it need only be legitimate. And its relationship to the regulation need be no more than reasonable. This is the lowest form of rational basis scrutiny. If, as seems likely, any formulation of a standard is applied to prisons with deference on factual issues within the expertise of prison officials, the Turner-O'Lone standard will be even further discounted in practice. Reasonably related to a legitimate penological interest, discounted by deference on the facts, will be a lower standard than least restrictive means to serve a compelling interest, discounted by deference on the facts. But even without further discounting for factual deference, "reasonably related to a legitimate penological interest" is not intermediate scrutiny. ___ 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.
RE: Rick Perry and separation of church and state
I am very glad to stand corrected on this point! sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Will Linden Sent: Sunday, June 05, 2005 11:57 PM To: Law & Religion issues for Law Academics Subject: Re: Rick Perry and separation of church and state Sanford Levinson wrote: > he signed represents "Christianity in action." But isn't there > something truly offensive about turning a bill-signing into a > religious rally? As the Times piece pointed out, some of us may be offended by turning a religious event into a political rally. ___ 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.
Re: RLUIPA and Turner
We have definitely beaten this horse to death, so just a quick reply. "Legitimate" is one of the buzz words for intermediate scrutiny. Compare Williamson v. Lee Optical. Marci In a message dated 6/6/2005 11:45:00 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The Turner court specified not just a rational connection between the regulation and the interest, but also that the interest need only be legitimate. ___ 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.
RE: RLUIPA and Turner
I wish it were true that
the Turner standard was more demanding than rational basis, and I'm happy to
have you argue that it should be, but it is not.
The Turner court
specified not just a rational connection between the regulation and the
interest, but also that the interest need only be legitimate. Turner, 482 US at 89-90 ("First, there must be a 'valid, rational connection'
between the prison regulation and the *legitimate* governmental interest put
forward to justify it. Thus, a regulation cannot be sustained where the
logical connection between the regulation and the asserted goal is so remote as
to render the policy arbitrary or irrational. Moreover, the governmental
objective must be a *legitimate* and neutral one.") (asterisks mine); id.
at 100 ("On this record, however, the
almost complete ban on the decision to marry is not reasonably related to
*legitimate* penological objectives.") (asterisks mine).
This is the language of
rational basis scrutiny. The "substantial and important" language you
refer to is from Procunier v. Martinez, which Turner discusses but does not
apply, distinguishing it as involving the
rights of non-prisoners, and reversing the Eight Circuit precisely for applying
it instead of the more deferential standard from subsequent prison cases.
Id. at 85-86.
O'Lone, which was decided
about a week after Turner, states and applies the very same rational basis
standard. O'Lone, 482 US at 349 ("We
recently restated the proper standard: '[W]hen a prison regulation impinges on
inmates' constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.'") (quoting Turner, 482 U.S. at
89); Id. at 350 ("Turner v. Safley, drew upon our previous
decisions to identify several factors relevant to this reasonableness
determination. First, a regulation must have a logical connection to legitimate
governmental interests invoked to justify it.")
I am also unaware of any
court reading Turner and O'Lone to have articulated two distinct standards, as
Marci reads them, but I'd be interested to see a citation to such a case (if it
exists). On the other hand, I have frequently seen the two standards
equated and referred to as the "Turner / O'Lone" standard.
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]Sent: Monday, June 06, 2005 9:54
AMTo: religionlaw@lists.ucla.eduSubject: RLUIPA and
Turner
Mr. Picarello argues that my analysis of the Cutter Court's interpretation
of RLUIPA as the equivalent of the Turner v. Safley standard as "spin" and
"self-contradiction," because he apparently believes that Turner mandates
lowest level rationality review. With all due respect, Turner held
that the government must prove an important or substantial interest, which in my
understanding is intermediate scrutiny. Turner is a significantly more
stringent standard than is the rationality test in, e.g., Williamson v. Lee
Optical. Cutter's interpretation of RLUIPA according to its legislative
history mandating deference amounts to intermediate scrutiny.
(What we are witnessing is the cleavage of "strict scrutiny," the
constitutional standard, from "strict scrutiny," the legislative term. The
former exists for the purpose of smoking out constitutional violations while the
latter is subject to Congress's interpretive modifications -- and successive
amendment due to changes in the political environment.)
Now, O'Lone does seem to require lowest level rationality review, though
there is hardly a great deal of discussion, but I have not argued that Cutter
interprets the prison provisions of RLUIPA to require that level of
rationality.
I can tell you this is how most prison administrators read the cases.
If they could have read Turner to stand for abject rationality review,
they might have. But Turner's language does not permit it.
Marci
There is no irony, only astonishingly aggressive spin and
self-contradiction.
___
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.
RE: RLUIPA and Turner
For the record: The standard in Turner, and the standard in O'Lone (which cites and quotes Turner copiously throughout), is identical: "reasonably related to a legitimate penological interest." Even this deferential standard was not met in Turner, because the prisoner's status as married or unmarried had no discernable effect on anybody inside the prison. But note: the interest need not be even modestly important; it need only be legitimate. And its relationship to the regulation need be no more than reasonable. This is the lowest form of rational basis scrutiny. If, as seems likely, any formulation of a standard is applied to prisons with deference on factual issues within the expertise of prison officials, the Turner-O'Lone standard will be even further discounted in practice. Reasonably related to a legitimate penological interest, discounted by deference on the facts, will be a lower standard than least restrictive means to serve a compelling interest, discounted by deference on the facts. But even without further discounting for factual deference, "reasonably related to a legitimate penological interest" is not intermediate scrutiny. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Monday, June 06, 2005 8:54 AMTo: religionlaw@lists.ucla.eduSubject: RLUIPA and Turner Mr. Picarello argues that my analysis of the Cutter Court's interpretation of RLUIPA as the equivalent of the Turner v. Safley standard as "spin" and "self-contradiction," because he apparently believes that Turner mandates lowest level rationality review. With all due respect, Turner held that the government must prove an important or substantial interest, which in my understanding is intermediate scrutiny. Turner is a significantly more stringent standard than is the rationality test in, e.g., Williamson v. Lee Optical. Cutter's interpretation of RLUIPA according to its legislative history mandating deference amounts to intermediate scrutiny. (What we are witnessing is the cleavage of "strict scrutiny," the constitutional standard, from "strict scrutiny," the legislative term. The former exists for the purpose of smoking out constitutional violations while the latter is subject to Congress's interpretive modifications -- and successive amendment due to changes in the political environment.) Now, O'Lone does seem to require lowest level rationality review, though there is hardly a great deal of discussion, but I have not argued that Cutter interprets the prison provisions of RLUIPA to require that level of rationality. I can tell you this is how most prison administrators read the cases. If they could have read Turner to stand for abject rationality review, they might have. But Turner's language does not permit it. Marci There is no irony, only astonishingly aggressive spin and self-contradiction. ___ 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.
Re: Rick Perry and separation of church and state
Sanford Levinson wrote: he signed represents "Christianity in action." But isn't there something truly offensive about turning a bill-signing into a religious rally? As the Times piece pointed out, some of us may be offended by turning a religious event into a political rally. ___ 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.
RLUIPA and Turner
Mr. Picarello argues that my analysis of the Cutter Court's interpretation of RLUIPA as the equivalent of the Turner v. Safley standard as "spin" and "self-contradiction," because he apparently believes that Turner mandates lowest level rationality review. With all due respect, Turner held that the government must prove an important or substantial interest, which in my understanding is intermediate scrutiny. Turner is a significantly more stringent standard than is the rationality test in, e.g., Williamson v. Lee Optical. Cutter's interpretation of RLUIPA according to its legislative history mandating deference amounts to intermediate scrutiny. (What we are witnessing is the cleavage of "strict scrutiny," the constitutional standard, from "strict scrutiny," the legislative term. The former exists for the purpose of smoking out constitutional violations while the latter is subject to Congress's interpretive modifications -- and successive amendment due to changes in the political environment.) Now, O'Lone does seem to require lowest level rationality review, though there is hardly a great deal of discussion, but I have not argued that Cutter interprets the prison provisions of RLUIPA to require that level of rationality. I can tell you this is how most prison administrators read the cases. If they could have read Turner to stand for abject rationality review, they might have. But Turner's language does not permit it. Marci There is no irony, only astonishingly aggressive spin and self-contradiction. --- Begin Message --- I am sending this off-list. Was this addressed to me, or the Supreme Court? Because it if was addressed to me, it is the height of unprofessionalism. Make no mistake about it, my analysis has nothing to do with spin and everything to do with my scholarly understanding of the Religion Clauses and the Court. Your organization was wrong about RFRA and if you think you still have a strict scrutiny standard under RLUIPA, you're wrong about that. You are allowed to disagree with me, but you have absolutely no right to insult me or my scholarly assessments. You may reside in the world of politics and spin. I do not. My litigation is a reflection of my scholarly work, not the other way around. Marci Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Your statement: There is no irony, only astonishingly aggressive spin and self-contradiction. --- End Message --- ___ 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.
RE: Rick Perry and separation of church and state
I think it tends toward an establishment clause violation. It's difficult to read the ceremony as anything other than an endorsement from the Governor's office of that particular congregation's religion. It's not in the nature of a governor giving a sermon on the governor's own time -- this was an official action on behalf of the People and State of Texas. But what's the damage? (It seems clear to me that one intent was to discourage Jews from attending, but I'm not sure a lot of Jews would have attended in any case.) Perhaps the outrage should come the other way -- where is the outcry from members of the congregation at opening the doors of the church to the politicians? What effect has such a rally on the 501(c)(3) status of the church (Texas has an interesting law which allows churches to function without incorporating, which could cloud the tax issues). This was much more in the nature of a political rally, and the sole advantage of this ceremony would be political. Does the infraction rise to the level of invalidating the bill signing? Sandy, have you looked at the Texas Constitution to see how it musters there? Ed Darrell Dallas "Volokh, Eugene" <[EMAIL PROTECTED]> wrote: I'm not sure quite how offensive this is; it strikes me aslittle different from "giv[ing] a sermon celebrating that some piece oflegislation that [the Governor] signed represents 'Christianity inaction.'" How offensive one finds that depends on the usual questionsabout the proper role of religious beliefs -- including publicly statedreligious beliefs -- in legislation.But even if it is "truly offensive," isn't there something of aleap from that to a violation of the Establishment Clause? Choosing tosign a bill in a particular place is a political act on the governor'spart; the location has no significance to the legal meaning or theeffectiveness of the bill. I take it that the Establishment Clauseargument would be that the symbolism of the act endorses religion, but Idon't see that as materially different from the sermon tha! t Sandy wouldacknowledges is permissible. I take it that Sandy thinks the sermon isnot unconstitutional because it's the governor's personal endorsement,and not the State of Texas's endorsement; the same seems to me true ofthe signing ceremony.Eugene-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of SanfordLevinsonSent: Sunday, June 05, 2005 7:49 PMTo: Law & Religion issues for Law AcademicsSubject: RE: Rick Perry and separation of church and stateYou will find below the first sentence of a story that will appear intomorrow's New York Times. Rather amazingly, incidentally, theGovernor's staff is claiming that it was an ecumininal gathering becausethe benediction was given by a "Jew for Jesus." In any event, is one being "oversensitive" to believe that this makes atravesty of the Establishment Clause? I have no argume! nt with theproposition that the Governor can attend whatever church he wants andeven give a sermon celebrating that some piece of legislation that hesigned represents "Christianity in action." But isn't there somethingtruly offensive about turning a bill-signing into a religious rally?Assume, incidentally, that the governor announces well in advance thathe's going to sign a bill in a Christian church, at which, bystipulation, Jews might not feel altogether comfortable inasmuch as thechurch in question rather publicly endorses the view that Jews aredamned because of our refusal to recognize Jesus as the Messiah. (Iwould be rather surprised if that is not in fact the view of the"evangelical school" in question.) Is there a non-frivolous argumentthat a court should enjoin the signing? (But of course Gov. Perry, nodoubt, would probably like nothing more than such a display of "judicialoverreaching," especially if it's from the des! pised federal judiciary,inasmuch as he is getting ready to run for re-election against Sen. KayBailey Hutchinson, who in Texas counts as a distinctly moderate andsensible Republican (who would receive lots of Democratic support).) sandy___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 membe
RE: Rick Perry and separation of church and state
I'm not sure quite how offensive this is; it strikes me as little different from "giv[ing] a sermon celebrating that some piece of legislation that [the Governor] signed represents 'Christianity in action.'" How offensive one finds that depends on the usual questions about the proper role of religious beliefs -- including publicly stated religious beliefs -- in legislation. But even if it is "truly offensive," isn't there something of a leap from that to a violation of the Establishment Clause? Choosing to sign a bill in a particular place is a political act on the governor's part; the location has no significance to the legal meaning or the effectiveness of the bill. I take it that the Establishment Clause argument would be that the symbolism of the act endorses religion, but I don't see that as materially different from the sermon that Sandy would acknowledges is permissible. I take it that Sandy thinks the sermon is not unconstitutional because it's the governor's personal endorsement, and not the State of Texas's endorsement; the same seems to me true of the signing ceremony. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Sunday, June 05, 2005 7:49 PM To: Law & Religion issues for Law Academics Subject: RE: Rick Perry and separation of church and state You will find below the first sentence of a story that will appear in tomorrow's New York Times. Rather amazingly, incidentally, the Governor's staff is claiming that it was an ecumininal gathering because the benediction was given by a "Jew for Jesus." In any event, is one being "oversensitive" to believe that this makes a travesty of the Establishment Clause? I have no argument with the proposition that the Governor can attend whatever church he wants and even give a sermon celebrating that some piece of legislation that he signed represents "Christianity in action." But isn't there something truly offensive about turning a bill-signing into a religious rally? Assume, incidentally, that the governor announces well in advance that he's going to sign a bill in a Christian church, at which, by stipulation, Jews might not feel altogether comfortable inasmuch as the church in question rather publicly endorses the view that Jews are damned because of our refusal to recognize Jesus as the Messiah. (I would be rather surprised if that is not in fact the view of the "evangelical school" in question.) Is there a non-frivolous argument that a court should enjoin the signing? (But of course Gov. Perry, no doubt, would probably like nothing more than such a display of "judicial overreaching," especially if it's from the despised federal judiciary, inasmuch as he is getting ready to run for re-election against Sen. Kay Bailey Hutchinson, who in Texas counts as a distinctly moderate and sensible Republican (who would receive lots of Democratic support).) sandy ___ 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.
