date:20051108









The point is, though, that this persons
home is also state property, making it akin to professors
classroom. If it were a different arrangement  he came to the dorm
for an 8-hour shift advising students, then went back to his own off-campus apartment
 obviously the university could not dictate what he did in his home
during his off-time. 



An RA at a public institution is a rather
unique status: a state actor whose job requires that he live onsite, who is
essentially on duty 24 hours a day (at least when hes on
the premises), and who is compensated in the form of free housing for making
this sacrifice of freedom and privacy. 



We know from free-exercise doctrine that a
university could decline to accommodate an RA whose religion required him to
attend services or observe sabbath on a schedule that would impose unreasonable
demands on fellow employees. And I imagine that under public employee
speech doctrine, the university also could prohibit the RA from posting certain
discriminatory social or political messages on his door  messages that
ordinary dorm residents would be more free to post. 



There is, of course, no entitlement to a
job as an RA; its usually at least somewhat selective. If an RA feels
a clash of conscience between his special and demanding role and his desire to spend
time spreading religious or other messages, he is free not to accept this
particular employment. 



Steve Sanders













From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M Pardee
Sent: Tuesday, November 08, 2005
8:53 AM
To: religionlaw@lists.ucla.edu
Subject: Bible study ban for RA's
in UW-Eau Claire dorms






To me, this ban seems rather difficult to justify. To
say that an RA can't host a bible study in his home on campus is absurd. They
try to say that the RA could host it off-campus, but that
if the studies continued, students might not find them 'approachable' or might
fear they'd be 'judged or pushed in a direction that does not work for
them.' That's not a question of where the Bible study is held but
rather whether the RA is hosting it. If a student is honestly going to
feel an RA is unapproachable because they lead a Bible study in
their dorm room, are they going to automatically view the RA as approachable if
the RA leads the exact same study but in a different location? It strikes
me as an illogical argument. I know that there are those here who have
proposed that some of the excesses of educational institutions in limiting
religious speech are grounded in either the fear of costly litigation or a
mistaken believe that the limitations are required. I don't see either of
those benign errors here, though. 

http://www.jsonline.com/news/state/nov05/368030.asp


http://www.gazetteextra.com/bibleban110405.asp


Brad








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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Censoring Narnia

2005-11-08 Thread Michael MASINTER

As far as I can tell, Americans United wisely has not threatened to sue
anybody.  Here's a link to their press release: http://tinyurl.com/b5lnd

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 8 Nov 2005, Rick Duncan wrote:

 Here is an excerpt from an ADF Press Release on an interesting case 
 concerning an attempt by Americans United to censor a public school reading 
 contest concerning The Lion, the Witch, and the Wardrobe. Any thoughts?  
 --Rick Duncan ADF to stand by any schools threatened for participating in 
 Florida governor's Narnia contestMonday, November 07, 2005, 10:45 AM (MST)
 ADF Media Relations | 480-444-0020
 
 
 
 
 -
  [input]  Comments
   [input]  
 
 
 SCOTTSDALE, Ariz. - Attorneys with the Alliance Defense Fund say they will 
 offer free legal representation to any Florida schools threatened with 
 lawsuits for participating in the governor's reading contest involving The 
 Lion, the Witch, and the Wardrobe by C.S. Lewis. 
 
 On Oct. 20, Americans United for Separation of Church and State issued a 
 press release condemning Gov. Jeb Bush's Just Read, Florida! campaign, 
 which this year encourages public school students to read the Lewis novel in 
 conjunction with the release of the Disney movie based on the book Dec. 9.  
 AUSCS claims this year's campaign is designed to promote a religious story. 
 
 The governor's campaign is clearly designed to promote reading in 
 conjunction with a much-anticipated film; it is not designed to promote 
 religion, said ADF Senior Counsel Gary McCaleb.  ADF will defend any school 
 district in the nation that gets sued by AUSCS, the ACLU, or any other group 
 for having students read The Lion, the Witch, and the Wardrobe, as long as 
 the school allows students to opt out of reading it if they or their parents 
 don't want to. 
 
 According to the 2001 executive order establishing the Just Read, Florida! 
 program, the campaign is a comprehensive, coordinated reading initiative 
 aimed at helping every student become a successful, independent reader.  
 Nonetheless, AUSCS called it an offense to the First Amendment. 
 
 
 
 Douglas Laycock [EMAIL PROTECTED] wrote:
 
 Of course no document of Vatican II talks specifically about
 private religious speech in public schools. And if there were such a
 discussion, it would not be on the basis that some religion is better
 than no religion.
 
 The documents of Vatican II do defend freedom of conscience for
 all, which necessarily means that evangelical Protestant teaching will
 be protected by law even if it tends to undermine Catholicism. And the
 reason given in those documents sounds in the dignity of the human
 person, not in institutional or theological advantage. The documents of
 Vatican II also recognize the possibility of salvation outside the
 church, and even outside Christianity, makig Catholic teaching far more
 tolerant than evangelical Protestant teaching.
 
 Michael, you seem to think that the persistence of serious
 theological disagreements show that the conflict of the Reformation has
 not burned itself out. I agree that theological disagreements persist,
 but they no longer motivate much serious conflict. For more than 200
 years, from Henry VII to Culloden Moor in 1746, Englishman
 intermittently killed each other in serious numbers over the
 Protestant-Catholic divide. Nineteenth-century Americans occasional
 killed each other in street violence, and occasionally destroyed
 churches, over the Protestant-Catholic divide. In the 1920s, Oregon
 banned private schools as a way of banning Catholic schools, and several
 other states considered similar legislation. That's the kind of
 conflict that has burned itself out.
 
 After Vatican II took away so many Protestant talking points,
 and after the popularity of the Kennedys, old-style anti-Catholicism
 faded away and became disreputable. Al Smith was hurt as a Presidential
 candidate by his Catholocism; Kennedy was hurt some but seems to have
 been helped more. Kerry was not hurt by being Catholic; he was hurt by
 not being Catholic enough. The current theological disagreements are
 nothing like the old style conflict. Contemporary anti-Catholicism is
 rooted not in Protestantism, but in the secular left, principally
 organized around issues of sexual morality, and secondarily on derision
 of any belief in the supernatural.
 
 It may be that reduced conflict is a form of assimilation, and
 bad for Catholic doctrine in the long run. That's a different point
 from whether social conflict actually persists.
 
 Finally, let me say that I agree that persistence and resistance
 pretty much describes a lot of

RE: Bible study ban for RA's in UW-Eau Claire dorms

Title: Message



 Hmm -- as I understand it, this isn't a simple 
religious accommodation claim, in which an RA claims an exemption from a 
generally applicable rule (no meetings of ideological groups in your dorm 
rooms). This is a claim that the government is discriminating against 
religious groups; you can organize meetings of the Bush=Hitler Club or the 
Socialist Youth League in your dormroom, regardless of whether this causes some 
students to feel that you're "unapproachable," but you can't organize Bible 
Study meetings.

 Incidentally, to the extent that the state is resting its argument 
on its power as landlord, that argument is likely to lose under Rosenberger and 
Lamb's Chapel. The state must instead, I take it, rest its argument on its 
power as employer. And when one sees the state as employer, it seems hard 
to distinguish the "approachability" effects of a student's being widely known 
as a Christian because of his outside-the-dorm-room activities (for instance, 
his being known to be the leader of a Christian student group that meets in a 
classroom after hours, or even his being known to be an ordained minister) from 
the approachability effects of a student's being known as a Christian because of 
his in-dorm-room activity. If the government-as-employer's concerns about 
approachability justify discriminating against religious practices of students 
in dorm rooms, would they equally allow the government to, for instance, refuse 
to hire as RAs people who are known to be active in their religious groups 
outside the dorm or off-campus? 
 Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Steve SandersSent: Tuesday, November 08, 2005 
  11:37 AMTo: 'Law  Religion issues for Law 
  Academics'Subject: RE: Bible study ban for RA's in UW-Eau Claire 
  dorms
  
  The point is, though, 
  that this persons home is also state property, making it akin to 
  professors classroom. If it were a different arrangement  he came to 
  the dorm for an 8-hour shift advising students, then went back to his own 
  off-campus apartment  obviously the university could not dictate what he did 
  in his home during his off-time. 
  
  An RA at a public 
  institution is a rather unique status: a state actor whose job requires that 
  he live onsite, who is essentially on duty 24 hours a day (at least when 
  hes on the premises), and who is compensated in the form of free housing for 
  making this sacrifice of freedom and privacy. 
  
  We know from 
  free-exercise doctrine that a university could decline to accommodate an RA 
  whose religion required him to attend services or observe sabbath on a 
  schedule that would impose unreasonable demands on fellow employees. And 
  I imagine that under public employee speech doctrine, the university also 
  could prohibit the RA from posting certain discriminatory social or political 
  messages on his door  messages that ordinary dorm residents would be more 
  free to post. 
  
  There is, of course, 
  no entitlement to a job as an RA; its usually at least somewhat 
  selective. If an RA feels a clash of conscience between his special and 
  demanding role and his desire to spend time spreading religious or other 
  messages, he is free not to accept this particular employment. 
  
  
  Steve 
  Sanders
  
  
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Brad M 
  PardeeSent: Tuesday, 
  November 08, 2005 8:53 AMTo: 
  religionlaw@lists.ucla.eduSubject: Bible study ban for RA's in 
  UW-Eau Claire dorms
  
  To me, this ban seems rather 
  difficult to justify. To say that an RA can't host a bible study in his 
  home on campus is absurd. They try to say that the RA could host it 
  off-campus, but "that if the studies continued, 
  students might not find them 'approachable' or might fear they'd be 'judged or 
  pushed in a direction that does not work for them.'" That's not a 
  question of where the Bible study is held but rather whether the RA is hosting 
  it. If a student is honestly going to feel an RA is "unapproachable" 
  because they lead a Bible study in their dorm room, are they going to 
  automatically view the RA as approachable if the RA leads the exact same study 
  but in a different location? It strikes me as an illogical argument. 
  I know that there are those here who have proposed that some of the 
  excesses of educational institutions in limiting religious speech are grounded 
  in either the fear of costly litigation or a mistaken believe that the 
  limitations are required. I don't see either of those benign errors 
  here, though. http://www.jsonline.com/news/state/nov05/368030.asp 
  http://www.gazetteextra.com/bibleban110405.asp 
  Brad
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Re: Bible study ban for RA's in UW-Eau Claire dorms

2005-11-08 Thread Ed Brayton

Title: Message




Volokh, Eugene wrote:

  
  
  

  
   Hmm -- as I understand it, this isn't a simple
religious accommodation claim, in which an RA claims an exemption from
a generally applicable rule (no meetings of ideological groups in your
dorm rooms). This is a claim that the government is discriminating
against religious groups; you can organize meetings of the Bush=Hitler
Club or the Socialist Youth League in your dormroom, regardless of
whether this causes some students to feel that you're "unapproachable,"
but you can't organize Bible Study meetings.
  
   Incidentally, to the extent that the state is resting its
argument on its power as landlord, that argument is likely to lose
under Rosenberger and Lamb's Chapel. The state must instead, I take
it, rest its argument on its power as employer. And when one sees the
state as employer, it seems hard to distinguish the "approachability"
effects of a student's being widely known as a Christian because of his
outside-the-dorm-room activities (for instance, his being known to be
the leader of a Christian student group that meets in a classroom after
hours, or even his being known to be an ordained minister) from the
approachability effects of a student's being known as a Christian
because of his in-dorm-room activity. If the government-as-employer's
concerns about approachability justify discriminating against religious
practices of students in dorm rooms, would they equally allow the
government to, for instance, refuse to hire as RAs people who are known
to be active in their religious groups outside the dorm or off-campus? 
  


Or to take it a step further, what about non-religious activities that
might have the same effect? By the same reasoning, if an RA were an
officer in the College Democrats, couldn't that just as reasonably make
him less "approachable" to Republican students? Or let's say rather
than a bible study, he had a small humanist book club that met in his
room to discuss books. Wouldn't that make him less "approachable" to
religious students? It seems to me that the university is singling out
bible studies from a long list of in-room and out-of-room activities
that an RA might be involved with that might make them less
"approachable" in the perceptions of other students in the dorm.

Ed Brayton


   
   
  




___
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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: Bible study ban for RA's in UW-Eau Claire dorms

Title: Message








I dont believe that labeling this as a religious-discrimination
claim is accurate. As one of the newspaper accounts says: UW-Eau
Claire spokesman Mike Rindo said Thursday the university prohibits resident
assistants from leading Bible studies or
other activities like partisan political events (emphasis added) in
the dorms. It doesn't prohibit them from attending them. 



So, no, RAs also could not organize meetings of the
Bush=Hitler Club of the Socialist Youth League. Non-RA living in the
dorms could do either of these, as well as lead Bible studies. 



I think Eugene
is right that the issue here is employment, not the state as landlord.
The universitys casting this as an approachability issue makes
matters somewhat tricky. I assume that, less euphemistically stated, the policy
is aimed at discouraging proselytizing by a state employee on state property during
working hours  something thats even more incompatible with an RAs
role than with the jobs of most state actors (because among other things, RA
duties usually include promoting tolerance, diversity, etc.). If its
simply a matter of the RAs personal identity, I of course agree that discrimination
would be inappropriate. The issue here would seem to turn on the nature
of the Bible study meetings (are they advertised, with residents invited/encouraged
to attend? held in his room or a public lounge? etc.), and Im not sure
the newspaper accounts give us enough facts to draw reliable legal conclusions.




Steve













From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005
10:06 AM
To: Law
  Religion issues for Law Academics
Subject: RE: Bible study ban for
RA's in UW-Eau Claire dorms







 Hmm -- as I understand
it, this isn't a simple religious accommodation claim, in which an RA claims an
exemption from a generally applicable rule (no meetings of ideological groups
in your dorm rooms). This is a claim that the government is
discriminating against religious groups; you can organize meetings of the
Bush=Hitler Club or the Socialist Youth League in your dormroom, regardless of
whether this causes some students to feel that you're
unapproachable, but you can't organize Bible Study meetings.











 Incidentally, to the extent that the state
is resting its argument on its power as landlord, that argument is likely to
lose under Rosenberger and Lamb's Chapel. The state must instead, I take
it, rest its argument on its power as employer. And when one sees the
state as employer, it seems hard to distinguish the approachability
effects of a student's being widely known as a Christian because of his
outside-the-dorm-room activities (for instance, his being known to be the
leader of a Christian student group that meets in a classroom after hours, or
even his being known to be an ordained minister) from the approachability
effects of a student's being known as a Christian because of his in-dorm-room
activity. If the government-as-employer's concerns about approachability
justify discriminating against religious practices of students in dorm rooms,
would they equally allow the government to, for instance, refuse to hire as RAs
people who are known to be active in their religious groups outside the dorm or
off-campus? 





 Eugene





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
Sent: Tuesday, November 08, 2005
11:37 AM
To: 'Law
  Religion issues for Law Academics'
Subject: RE: Bible study ban for
RA's in UW-Eau Claire dorms

The point is, though, that this
persons home is also state property, making it akin to
professors classroom. If it were a different arrangement 
he came to the dorm for an 8-hour shift advising students, then went back to
his own off-campus apartment  obviously the university could not dictate
what he did in his home during his off-time. 



An RA at a public institution is a rather
unique status: a state actor whose job requires that he live onsite, who is
essentially on duty 24 hours a day (at least when hes on
the premises), and who is compensated in the form of free housing for making
this sacrifice of freedom and privacy. 



We know from free-exercise doctrine that a
university could decline to accommodate an RA whose religion required him to
attend services or observe sabbath on a schedule that would impose unreasonable
demands on fellow employees. And I imagine that under public employee
speech doctrine, the university also could prohibit the RA from posting certain
discriminatory social or political messages on his door  messages that
ordinary dorm residents would be more free to post. 



There is, of course, no entitlement to a
job as an RA; its usually at least somewhat selective. If an RA
feels a clash of conscience between his special and demanding role and his
desire to spend time spreading religious or other messages, he is free not to
accept this particular employment.

RE: Bible study ban for RA's in UW-Eau Claire dorms

Title: Message



 Hmm --I had read a different account, but 
I'm happy to accept this one (at least for the purposes of our discussion, and 
possibly as the accurate one). In any case, though, exclusion of partisan 
events doesn't seem to me enough to eliminate the religious discrimination 
problem, just as it wasn't in Rosenberger. The Socialist Youth League 
might well be not partisan, in the sense that it promotes socialism as an ideal 
rather than as a party; try a Spartacus Youth League or an International 
A.N.S.W.E.R. chapter. So it seems to me that if religious groups are 
restricted but other ideological groups (except for partisan political events), 
we have religious discrimination; as I mentioned, Rosenberger so 
holds.

 More broadly, it seems to me that tolerance and diversity would 
include tolerance for a diversity of religious beliefs of the RAs as well as the 
students. If a student concludes that an RA is unapproachable because of 
his religion -- not because he's personally insulted you, or has told you that 
your religion is inferior (where government as employer is concerned, 
restrictions on rude advocacy of religion or ideology, or even advocacy that 
harshly criticizes other religions or ideologies,may well be proper), but 
simply because he's running a Bible study group -- is the student really showing 
a tolerance for diversity? If the school caters to the preferences of 
those students who feel uncomfortable talking to out-of-the-closet Christians, 
is the school really showing a tolerance for diversity?
 Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Steve SandersSent: Tuesday, November 08, 2005 
  12:42 PMTo: 'Law  Religion issues for Law 
  Academics'Subject: RE: Bible study ban for RA's in UW-Eau Claire 
  dorms
  
  I dont believe that labeling this 
  as a religious-discrimination claim is accurate. As one of the newspaper 
  accounts says: UW-Eau Claire spokesman Mike 
  Rindo said Thursday the university prohibits resident assistants from leading 
  Bible studies or other activities like 
  partisan political events (emphasis added) in the dorms. It doesn't 
  prohibit them from attending them. 
  
  So, no, RAs also could not 
  organize meetings of the Bush=Hitler Club of the Socialist Youth League. 
  Non-RA living in the dorms could do either of these, as well as lead Bible 
  studies. 
  
  I think Eugene is right that the 
  issue here is employment, not the state as landlord. The universitys 
  casting this as an approachability issue makes matters somewhat 
  tricky. I assume that, less euphemistically stated, the policy is aimed 
  at discouraging proselytizing by a state employee on state property during 
  working hours  something thats even more incompatible with an RAs role than 
  with the jobs of most state actors (because among other things, RA duties 
  usually include promoting tolerance, diversity, etc.). If its simply a 
  matter of the RAs personal identity, I of course agree that discrimination 
  would be inappropriate. The issue here would seem to turn on the nature 
  of the Bible study meetings (are they advertised, with residents 
  invited/encouraged to attend? held in his room or a public lounge? etc.), and 
  Im not sure the newspaper accounts give us enough facts to draw reliable 
  legal conclusions. 
  
  Steve
  
  
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Volokh, 
  EugeneSent: Tuesday, 
  November 08, 2005 10:06 AMTo: Law  Religion issues for Law 
  AcademicsSubject: RE: Bible study ban for RA's in 
  UW-Eau Claire dorms
  
  
   
  Hmm -- as I understand it, this isn't a simple religious accommodation claim, 
  in which an RA claims an exemption from a generally applicable rule (no 
  meetings of ideological groups in your dorm rooms). This is a claim that 
  the government is discriminating against religious groups; you can organize 
  meetings of the Bush=Hitler Club or the Socialist Youth League in your 
  dormroom, regardless of whether this causes some students to feel that you're 
  "unapproachable," but you can't organize Bible Study 
  meetings.
  
  
  
   Incidentally, to the 
  extent that the state is resting its argument on its power as landlord, that 
  argument is likely to lose under Rosenberger and Lamb's Chapel. The 
  state must instead, I take it, rest its argument on its power as 
  employer. And when one sees the state as employer, it seems hard to 
  distinguish the "approachability" effects of a student's being widely known as 
  a Christian because of his outside-the-dorm-room activities (for instance, his 
  being known to be the leader of a Christian student group that meets in a 
  classroom after hours, or even his being known to be an ordained minister) 
  from the approachability effects of a student's being known as a Christian 
  because of his in-dorm-room activity. If the government-as-employer's

Re: Censoring Narnia

2005-11-08 Thread Greg Magarian

I often sympathize, politically and constitutionally, with Americans
United's positions, but their stand on this one strikes me as
politically tin-eared and constitutionally off-base.  First, even a
staunch separationist can acknowledge that the Narnia books have
achieved the status of revered literature without regard to their
religious significance.  Second, even if we treat the book as a
substantially religious text, the state contest isn't (as far as I can
tell) asking students to write the best essay praising its Christian
message.  I assume students are free to write essays that criticize the
book's Christian perspective or to ignore it altogether.  I also assume
this is not part of a state initiative to encourage reading that
exclusively or primarily emphasizes religious books.  If those
assumptions are correct, I don't see any problem.

Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7652

 [EMAIL PROTECTED] 11/8/2005 12:53:59 PM 
As far as I can tell, Americans United wisely has not threatened to
sue
anybody.  Here's a link to their press release:
http://tinyurl.com/b5lnd 

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal
Panel

On Tue, 8 Nov 2005, Rick Duncan wrote:

 Here is an excerpt from an ADF Press Release on an interesting case
concerning an attempt by Americans United to censor a public school
reading contest concerning The Lion, the Witch, and the Wardrobe. Any
thoughts?  --Rick Duncan ADF to stand by any schools threatened for
participating in Florida governor's Narnia contestMonday, November 07,
2005, 10:45 AM (MST)
 ADF Media Relations | 480-444-0020
 
 
 
 
 -
  [input]  Comments
   [input]  
 
 
 SCOTTSDALE, Ariz. - Attorneys with the Alliance Defense Fund say they
will offer free legal representation to any Florida schools threatened
with lawsuits for participating in the governor's reading contest
involving The Lion, the Witch, and the Wardrobe by C.S. Lewis. 
 
 On Oct. 20, Americans United for Separation of Church and State
issued a press release condemning Gov. Jeb Bush's Just Read, Florida!
campaign, which this year encourages public school students to read the
Lewis novel in conjunction with the release of the Disney movie based on
the book Dec. 9.  AUSCS claims this year's campaign is designed to
promote a religious story. 
 
 The governor's campaign is clearly designed to promote reading in
conjunction with a much-anticipated film; it is not designed to promote
religion, said ADF Senior Counsel Gary McCaleb.  ADF will defend any
school district in the nation that gets sued by AUSCS, the ACLU, or any
other group for having students read The Lion, the Witch, and the
Wardrobe, as long as the school allows students to opt out of reading it
if they or their parents don't want to. 
 
 According to the 2001 executive order establishing the Just Read,
Florida! program, the campaign is a comprehensive, coordinated reading
initiative aimed at helping every student become a successful,
independent reader.  Nonetheless, AUSCS called it an offense to the
First Amendment. 
 
 
 
 Douglas Laycock [EMAIL PROTECTED] wrote:
 
 Of course no document of Vatican II talks specifically about
 private religious speech in public schools. And if there were such a
 discussion, it would not be on the basis that some religion is
better
 than no religion.
 
 The documents of Vatican II do defend freedom of conscience for
 all, which necessarily means that evangelical Protestant teaching
will
 be protected by law even if it tends to undermine Catholicism. And
the
 reason given in those documents sounds in the dignity of the human
 person, not in institutional or theological advantage. The documents
of
 Vatican II also recognize the possibility of salvation outside the
 church, and even outside Christianity, makig Catholic teaching far
more
 tolerant than evangelical Protestant teaching.
 
 Michael, you seem to think that the persistence of serious
 theological disagreements show that the conflict of the Reformation
has
 not burned itself out. I agree that theological disagreements
persist,
 but they no longer motivate much serious conflict. For more than 200
 years, from Henry VII to Culloden Moor in 1746, Englishman
 intermittently killed each other in serious numbers over the
 Protestant-Catholic divide. Nineteenth-century Americans occasional
 killed each other in street violence, and occasionally destroyed
 churches, over the Protestant-Catholic divide. In the 1920s, Oregon
 banned private schools as a way of banning Catholic schools, and
several
 other states considered similar legislation. That's the kind of

RE: Bible study ban for RA's in UW-Eau Claire dorms

2005-11-08 Thread Stephen R. Prescott, Esq.

I think Steve Sanders for his post. I agree that the fact that the RA is an employee complicates this situation a little. However, it seems to me that this is just the type of discrimination that the Free Exercise Clause is designed to prevent. It is, of course, true that no one is required to accept a job as an R.A. If a person's religious beliefs preventing him or her from fulfilling some aspect of the job requirements, Free Exercise doctrine (and Title VII) would require the employer to make a reasonable accomodation, but only if theaccomodation imposed no more than a trivial burdern. However, there appears to be no allegation that the RA is not fulfilling all job requirements.
This strikes me as a case of pure religious discrimination. The proffered reason that college students would not approach an RA who leads a Bible study for fear of being judged seems contrived. College students are adults, and in the highly speculative case that a student felt intimidated, there are doubtless other R.A.s, Assistant Deans of Students/Men/Women, counselors, infirmary staff, etc. The claim that this is designed to protect students seems incredulous.
Isuspect this ban is limited to the Bible. If the fear truly was that students would feel intimidated, then a study of The Communist Manifesto by a Marxist student in his dorm room would certainly be forbidden. After all, Marx taught that the proletariat should rise up and kill the bourgeoise (probably at least half of the student body in most universities). Of course, no school would stop a Marxis RA from leading a voluntary study of The Communist Manifest, and advocating that one be killed is surely intimidating. Nor I suspect would UW forbid a Hindu RA from having a study of the Vedas in his room even though non-vegetarians (wild guess 90% of the student body) might be intimidated, or a Muslim student for leading a study of the Koran, even though a straightforward reading of the text condemns all women to hell. [I have read Islamic theology and I 
do realize that many Islamic theologians in the last century have interpreted the text in various ways that do not reach that result.]
I think it is highly unlikely that UW would ban a study of Marx, the Vedas, the Koran, or dozens of other texts (and certainly they should not). I confess to being somethingof a cynic, but this seems a blatant case of certainly anti-religious discrimination, and probably anti-Judeo-Christian discrimination. This seems to be just the type of situtation that both clauses of the freedom of religion provision of the First Amendment forbid.
Once again, I think Steve Sanders for his thoughtful post.
Steve Prescott



From: "Steve Sanders" [EMAIL PROTECTED]Reply-To: Law  Religion issues for Law Academics religionlaw@lists.ucla.eduTo: "'Law  Religion issues for Law Academics'" religionlaw@lists.ucla.eduSubject: RE: Bible study ban for RA's in UW-Eau Claire dormsDate: Tue, 8 Nov 2005 11:36:37 -0800






The point is, though, that this persons home is also state property, making it akin to professors classroom. If it were a different arrangement  he came to the dorm for an 8-hour shift advising students, then went back to his own off-campus apartment  obviously the university could not dictate what he did in his home during his off-time. 

An RA at a public institution is a rather unique status: a state actor whose job requires that he live onsite, who is essentially on duty 24 hours a day (at least when hes on the premises), and who is compensated in the form of free housing for making this sacrifice of freedom and privacy. 

We know from free-exercise doctrine that a university could decline to accommodate an RA whose religion required him to attend services or observe sabbath on a schedule that would impose unreasonable demands on fellow employees. And I imagine that under public employee speech doctrine, the university also could prohibit the RA from posting certain discriminatory social or political messages on his door  messages that ordinary dorm residents would be more free to post. 

There is, of course, no entitlement to a job as an RA; its usually at least somewhat selective. If an RA feels a clash of conscience between his special and demanding role and his desire to spend time spreading religious or other messages, he is free not to accept this particular employment. 

Steve Sanders






From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M PardeeSent: Tuesday, November 08, 2005 8:53 AMTo: religionlaw@lists.ucla.eduSubject: Bible study ban for RA's in UW-Eau Claire dorms

To me, this ban seems rather difficult to justify. To say that an RA can't host a bible study in his home on campus is absurd. They try to say that the RA could host it off-campus, but "that if the studies continued, students might not find them 'approachable' or might fear they'd be 'judged or pushed in a direction that does not work for them.'" That's not a question of where the Bible study

RE: 500 years

Michael Newsom writes:

 1. A Catholic has lost his or her way, if not his or here 
 senses, if he or she believes that acceptance of Jesus or 
 objection to abortion is deeper than the liturgy.  See The 
 Catechism of the Catholic Church Part Two: The Celebration of 
 the Christian Mystery, in particular paragraph 1068, quoting 
 from the Sacrosanctum concilium.  (There are other passages 
 equally as powerful, but this will do for openers.)  

Hmm -- I wonder whether this is the dominant view, at least
among American Catholics.  I would think that many of them think shared
opposition to what they see as mass murder, plus a shared acceptance of
the teachings of Jesus, is more important than agreement on finer
theological points; what do other Catholics on the list think?
 
 3. The analogy to political speech in inapt.  There is no 
 need to rehearse our differences in regard to the meaning of 
 the Religion Clauses, and whether they do much more than 
 shape a Free Speech norm.

Indeed there isn't; I'm sure list members are acquainted with
it.  But I do want to suggest that my point isn't simply that Religion
Clauses merely shape a Free Speech norm.  Rather, my point is that
Religion Clauses don't *trump* the Free Speech norm -- that freedom of
speech means the freedom to spread all viewpoints, religious,
antireligious, or secular.
 
 4. The Church, I think, would prefer to see someone be a 
 Protestant rather than an Atheist.  But this is irrelevant.  
 Context matters.  This is surely not true with regard to 
 those who are, at least for the nonce, Catholics.  And that 
 is what matters -- whether those who are now Catholics will 
 leave the faith.  As I suggested in another post, the 
 alliance with the (non-Catholic) Religious Right may well 
 undermine the Catholic faith and, I might add, cause people 
 to abandon that faith. Neither of these eventualities is 
 something that the Church, rationally, could favor.

Might the Church think that an alliance might actually win more
converts from Catholicism to Protestantism (perhaps because the Church
thinks that Catholicism is true and more persuasive than Protestantism)
than vice versa?  Might it think that winning more converts to
Christianity of any stripe (both from the non-Christian and from those
who are Christian in name only) is so important that it's worth risking
a small amount of conversion away from Catholicism?  Might it think that
preventing the deaths of millions of unborn children is likewise worth
running this small risk?
 
 5. What is a scare quote?  

I hadn't answered this question when it was asked earlier,
because Bob O'Brien beat me to it (see
http://lists.ucla.edu/pipermail/religionlaw/2005-November/020251.html);
but I'm following dictionary.com in using the term to mean Either of a
pair of quotation marks used to emphasize a word or phrase or to
indicate its special status, especially to express doubt about its
validity or to criticize its use.  Am I mistaken?
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RE: Bible study ban for RA's in UW-Eau Claire dorms

Title: Message








All good points. But if this is properly
framed as a case about the religious activities of a public employee in the
workplace, Im unclear how Rosenberger
is relevant. The policy apparently says nothing about the freedom of ordinary
students living in the dorms to apply for university funds to organize Bible
studies on equal terms with other activities. If were analogizing non-employment
lines of First Amendment doctrine, this seems closer to Rust v. Sullivan: the university is paying
you to be someplace and to perform specific tasks, and certain things you may
want to do during that university-paid time, whether religious or political,
may be incompatible with the purpose of the role youve contracted to fill.




I appreciate Steve Prescotts
post. But since we dont have information on how the university
enforces the policy with regard to political ideology or other religions, Id
suggest its not productive to let such speculation convince us that this
must be religious discrimination against Christians. (He may well be
right, and if he is, then the university should be faulted.) 



As to Eugenes diversity point, I certainly
agree in the abstract. Whether the university is being hypocritical
depends on whether theyre trying to suppress the RAs personal
identity as an open Christian (which they clearly cant and shouldnt
do) or his proselytizing (if indeed thats whats happening here, then
its a more legitimate concern). Its not the RA whos
the issue, its his in-the-workplace activities. The legal question
here turns, I think, on the nature of the Bible study sessions  whether theyre
within the legitimate bounds of personal free exercise, or more akin to what
was happening at the Air Force Academy.



Steve













From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005
10:52 AM
To: Law
  Religion issues for Law Academics
Subject: RE: Bible study ban for
RA's in UW-Eau Claire dorms







 Hmm --I had read
a different account, but I'm happy to accept this one (at least for the
purposes of our discussion, and possibly as the accurate one). In any
case, though, exclusion of partisan events doesn't seem to me enough to
eliminate the religious discrimination problem, just as it wasn't in
Rosenberger. The Socialist Youth League might well be not partisan, in
the sense that it promotes socialism as an ideal rather than as a party; try a
Spartacus Youth League or an International A.N.S.W.E.R. chapter. So it
seems to me that if religious groups are restricted but other ideological
groups (except for partisan political events), we have religious
discrimination; as I mentioned, Rosenberger so holds.











 More broadly, it seems to me that
tolerance and diversity would include tolerance for a diversity of religious
beliefs of the RAs as well as the students. If a student concludes that
an RA is unapproachable because of his religion -- not because he's personally
insulted you, or has told you that your religion is inferior (where government
as employer is concerned, restrictions on rude advocacy of religion or
ideology, or even advocacy that harshly criticizes other religions or
ideologies,may well be proper), but simply because he's running a Bible
study group -- is the student really showing a tolerance for diversity?
If the school caters to the preferences of those students who feel
uncomfortable talking to out-of-the-closet Christians, is the school really
showing a tolerance for diversity?





 Eugene





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
Sent: Tuesday, November 08, 2005
12:42 PM
To: 'Law
  Religion issues for Law Academics'
Subject: RE: Bible study ban for
RA's in UW-Eau Claire dorms

I dont believe that labeling this as a
religious-discrimination claim is accurate. As one of the newspaper
accounts says: UW-Eau Claire spokesman Mike Rindo
said Thursday the university prohibits resident assistants from leading Bible
studies or other activities like partisan
political events (emphasis added) in the dorms. It doesn't prohibit
them from attending them. 



So, no, RAs also could not organize meetings of the
Bush=Hitler Club of the Socialist Youth League. Non-RA living in the
dorms could do either of these, as well as lead Bible studies. 



I think Eugene
is right that the issue here is employment, not the state as landlord.
The universitys casting this as an approachability issue
makes matters somewhat tricky. I assume that, less euphemistically
stated, the policy is aimed at discouraging proselytizing by a state employee
on state property during working hours  something thats even more
incompatible with an RAs role than with the jobs of most state actors
(because among other things, RA duties usually include promoting tolerance,
diversity, etc.). If its simply a matter of the RAs
personal identity, I of course agree that discrimination would be

RE: Bible study ban for RA's in UW-Eau Claire dorms

Sorry if I was opaque:  Rosenberger is relevant because it held that
exclusion of religious speech was viewpoint discrimination even when
partisan political speech was also excluded (since the U Va policy was
no religious speech or partisan political speech).  The proper
comparison for determining whether the policy discriminates against
religion is thus whether other ideological speech is allowed, not
whether partisan political speech is allowed.

Nor do I think that Rust v. Sullivan is quite apt here, for reasons
that Rosenberger pointed to.  The school isn't trying to convey some
programmatic message here; it's not setting up a forum for the
expression of some particular government viewpoint.  Rather, it's
allowing the RA to engage in a wide range of speech in his dorm room --
just not religious speech (and political partisan speech).  And it seems
to me that this is especially so when the workplace is necessarily the
person's home as well.  If Rust applied, then the university could ban
pro-choice speech by RAs in their dorm rooms, unpatriotic speech,
antiwar speech, and whatever else; can that possibly be right?

Now if the university were to set up rules for what RAs say to
students who come to their room for counseling, that might be a
different story.  (There they might even be able to say that the RAs
can't counsel students to get abortions, for instance.)  But when the
university is trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any
time during the day in their dorm rooms, that seems to me pretty far
from Rust.

Eugene

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
Sent: Tuesday, November 08, 2005 1:52 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms


All good points.  But if this is properly framed as a case about the
religious activities of a public employee in the workplace, I'm unclear
how Rosenberger is relevant.  The policy apparently says nothing about
the freedom of ordinary students living in the dorms to apply for
university funds to organize Bible studies on equal terms with other
activities.  If we're analogizing non-employment lines of First
Amendment doctrine, this seems closer to Rust v. Sullivan:  the
university is paying you to be someplace and to perform specific tasks,
and certain things you may want to do during that university-paid time,
whether religious or political, may be incompatible with the purpose of
the role you've contracted to fill.  
 
I appreciate Steve Prescott's post.  But since we don't have information
on how the university enforces the policy with regard to political
ideology or other religions, I'd suggest it's not productive to let such
speculation convince us that this must be religious discrimination
against Christians.  (He may well be right, and if he is, then the
university should be faulted.)  
 
As to Eugene's diversity point, I certainly agree in the abstract.
Whether the university is being hypocritical depends on whether they're
trying to suppress the RA's personal identity as an open Christian
(which they clearly can't and shouldn't do) or his proselytizing (if
indeed that's what's happening here, then it's a more legitimate
concern).  It's not the RA who's the issue, it's his in-the-workplace
activities.  The legal question here turns, I think, on the nature of
the Bible study sessions - whether they're within the legitimate bounds
of personal free exercise, or more akin to what was happening at the Air
Force Academy.
 
Steve
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RE: FYI: An Interesting See You at the Pole Case

I don't hold the views with which Eugene charges me.  I have made my
position abundantly clear in, now, three articles.  Eugene ought to read
them before he decides what I do or do not think.

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 1:58 PM
To: Law  Religion issues for Law Academics
Subject: RE: FYI: An Interesting See You at the Pole Case

Hmm -- I guess I had an unwarrantedly positive view of
Catholics' concern about the rights and interests of other religious
groups, and their openness to and amity with those religious groups.  I
still hope, though, that I am descriptively correct, and that Prof.
Newsom's views represent the exception rather than the rule.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Newsom Michael
 Sent: Tuesday, November 08, 2005 8:09 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case

 Yes

 -Original Message-
 From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
 Sent: Monday, November 07, 2005 3:17 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case

 Is that really the view that Catholics take, or should take?  
 We aren't going to conduct masses in school.  Therefore, we 
 will oppose the Equal Access Act.  Never mind that it helps 
 other religions, including other Christians, conduct their 
 services, and worship God as they think is right.  Never mind 
 that it can help Catholics express their religious views.  
 Never mind that it helps Catholic students form groups in 
 which they can spend timing learning about Catholicism, 
 taking a Catholic approach to doing good works, and 
 reinforcing each other's faith.  I'd think that many 
 Catholics would (and should) care about much more than the 
 liturgy, and would (and should) care about more than just 
 their own denomination.  Am I mistaken?

 Eugene

 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Newsom Michael
 Sent: Monday, November 07, 2005 12:11 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case

 He doesn't need to be told that none of the foregoing is 
 tantamount to the liturgy, whereas under EAA evangelical 
 Protestants can have in-school prayer services that strongly 
 resemble their Sunday services. Catholics can't do that.

 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Berg, Thomas C.
 Sent: Thursday, November 03, 2005 11:09 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case

 He should also be told that the EAA or constitutional rights 
 of religious speech also guarantee Catholic students in 
 public schools the right to wear crosses or rosary necklaces 
 in school, to make a pro-Catholic or pro-Catholic-values 
 presentation in a class paper or presentation, and to meet 
 after school as a group of Catholic students, say, to plan a 
 mission project for the needy.  It would not be at all 
 surprising if those freedoms mattered to serious Catholic 
 families who, for financial or other reasons, use public 
 rather than Catholic schools.

 Tom Berg
 University of St. Thomas (Minnesota)

 From: Newsom Michael [mailto:[EMAIL PROTECTED]
 Sent: Thu 11/3/2005 5:19 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case
 The real question is whether it is likely that at some point 
 theological differences will rupture the 
 interest-convergence, no matter how powerful the forces that 
 produced the convergence might be.

 I can offer up an anecdote.  A fellow parishioner of mine, a 
 lawyer with a fine mind, a deep commitment to his faith, 
 politically conservative, and a person whom I genuinely like, 
 recently had a discussion one day after Mass about the Equal 
 Access Act.  His argument in favor of Church support of the 
 EAA was that some religion was better than no religion. This 
 is the political, legal, and cultural line to which Tom 
 refers. I then asked him if he would hold to that view even 
 if he thought that the religion that school children were 
 being exposed to, thanks to EAA, were somehow antithetical to 
 the Catholic faith.  (Recall that we have had a series of 
 emails on the question, and I find it interesting that 
 several Jewish members of this list remain unpersuaded that 
 their children just have to grin and bear the exhortations of 
 evangelical Protestant classmates.)  He said No, and that he 
 wanted to think about the matter, clearly calling into 
 question his easy political, legal, and cultural 
 assumption.  I strongly suspect that theology will trump
 the assumption because my counterargument stunned him.   This is only
 one story, and it may not represent very much.

RE: 500 years

Your response to point 1 begs the question.  You insist on trivializing
liturgy.  You are welcome to do so, but please don't impute your point
of view to others.

I think that you also trivialize the Religion Clauses, but there is no
need to rehearse that argument here.


You need to find some authority for your audacious claim that the
Catholic Church might be willing to lose members in order to save unborn
children.  Your claim supposes that the only way to save them is to run
the risk.  I don't buy that for a minute, and I seriously doubt that the
Church does either.  Again you are engaging in some remarkable
trivializing

Eugene, you tend to trivialize matters that either you don't know much
about or lack sympathy for -- the Mass, the Religion Clauses, and the
Catholic faith community.

You call for candor, you ought to practice it.

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 2:22 PM
To: Law  Religion issues for Law Academics
Subject: RE: 500 years

Michael Newsom writes:

 1. A Catholic has lost his or her way, if not his or here 
 senses, if he or she believes that acceptance of Jesus or 
 objection to abortion is deeper than the liturgy.  See The 
 Catechism of the Catholic Church Part Two: The Celebration of 
 the Christian Mystery, in particular paragraph 1068, quoting 
 from the Sacrosanctum concilium.  (There are other passages 
 equally as powerful, but this will do for openers.)  

Hmm -- I wonder whether this is the dominant view, at least
among American Catholics.  I would think that many of them think shared
opposition to what they see as mass murder, plus a shared acceptance of
the teachings of Jesus, is more important than agreement on finer
theological points; what do other Catholics on the list think?
 
 3. The analogy to political speech in inapt.  There is no 
 need to rehearse our differences in regard to the meaning of 
 the Religion Clauses, and whether they do much more than 
 shape a Free Speech norm.

Indeed there isn't; I'm sure list members are acquainted with
it.  But I do want to suggest that my point isn't simply that Religion
Clauses merely shape a Free Speech norm.  Rather, my point is that
Religion Clauses don't *trump* the Free Speech norm -- that freedom of
speech means the freedom to spread all viewpoints, religious,
antireligious, or secular.
 
 4. The Church, I think, would prefer to see someone be a 
 Protestant rather than an Atheist.  But this is irrelevant.  
 Context matters.  This is surely not true with regard to 
 those who are, at least for the nonce, Catholics.  And that 
 is what matters -- whether those who are now Catholics will 
 leave the faith.  As I suggested in another post, the 
 alliance with the (non-Catholic) Religious Right may well 
 undermine the Catholic faith and, I might add, cause people 
 to abandon that faith. Neither of these eventualities is 
 something that the Church, rationally, could favor.

Might the Church think that an alliance might actually win more
converts from Catholicism to Protestantism (perhaps because the Church
thinks that Catholicism is true and more persuasive than Protestantism)
than vice versa?  Might it think that winning more converts to
Christianity of any stripe (both from the non-Christian and from those
who are Christian in name only) is so important that it's worth risking
a small amount of conversion away from Catholicism?  Might it think that
preventing the deaths of millions of unborn children is likewise worth
running this small risk?
 
 5. What is a scare quote?  

I hadn't answered this question when it was asked earlier,
because Bob O'Brien beat me to it (see
http://lists.ucla.edu/pipermail/religionlaw/2005-November/020251.html);
but I'm following dictionary.com in using the term to mean Either of a
pair of quotation marks used to emphasize a word or phrase or to
indicate its special status, especially to express doubt about its
validity or to criticize its use.  Am I mistaken?
___
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The institution of marriage

2005-11-08 Thread Perry Dane


Ed Brayton  wrote:

I fail to see how the institution of
marriage can be destroyed without having any actual marriage damaged in any
conceivable way. It's not going to do anything to any marriage that I'm
aware of. No one I know is going to leave their spouse if gay marriage is
legalized, or stop loving their kids, or choose not to get married. If
anyone's marriage is fragile enough that it can damaged by the prospect of
people they don't know being allowed to get married, there wasn't any hope
for that marriage in the first place. And without destroying any particular
marriage, how is the institution of marriage to be destroyed? I've never
seen a logical causal argument made here to support this kind of rhetoric; I
suspect I never will.


I don't oppose same-sex marriage.  But I do understand the 
argument that same-sex marriage would threaten the institution of 
marriage, particularly as that institution is understood in many (though, 
of course, not all) religious traditions.  The issue is not whether any 
given marriage will be damaged, but rather whether the cultural meaning of 
the institution -- the set of purposes, expectations, and even cosmic 
meanings -- that are ascribed to it will shift in a way that will 
unavoidably spill over beyond the merely secular realm to religious 
communities as well.  I think it's useful to think of the institution of 
marriage as being, at least in part, a piece of cultural capital in whose 
meaning various communities invest, and whose value as a bearer of meaning 
risks being appropriated, so to speak, when the state radically changes 
the rules.


Consider two analogies:  (1) Why do many American Indians object 
to the use of Indian names and mascots by sports teams, even when the names 
and mascots are not inherently offensive or insulting?  One reason is that 
the appropriation of names and symbols such as Braves inevitably alters 
and dilutes the meaning of such names and symbols among Native Americans 
themselves.  (2) Or consider the pyrrhic victory argument in 
Establishment Clause debates; that is to say, the argument (which I tend to 
support in lots of contexts) that governmental sponsorship of religious 
symbols such as creches or religious practices such as prayers threatens to 
debase and trivialize the genuine religious meaning of those symbols or 
practices.  That is to say, creches and prayers, as pieces of religious 
capital and bearers of meaning, are altered, even in their private use, by 
their public misuse.


Now, of course, to understand the argument that same-sex marriage 
would threaten the institution of marriage as it is understood in many 
religious traditions is not to support that argument.   If nothing else, 
filling in that argument would require a really detailed and careful 
account of the complicated relationship between marriage as a piece of 
religious capital and marriage as a civil institution.  In any event, I 
don't think that religious objectors to same-sex marriage are entitled to 
any sort of veto in the contest over the meaning of marriage.   But we 
should at least be willing to acknowledge that there is something genuine 
at issue here.


Perry



***
Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/

Work:   (856) 225-6004
Fax:   (856) 969-7924
Home:   (610) 896-5702
***


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RE: FYI: An Interesting See You at the Pole Case









Precisely the point. And I want to credit
Tom Berg for making much the same point in a recent article. So I criticized
the Church for supporting EAA without thinking through the disadvantages that
would result. Some think that that criticism reflects a view of Catholicism
that is essentially mean-spirited, that if Catholics didnt support EAA then it
meant that they were anti- this or anti- that. That take on the matter is, of
course, utterly without merit. Why would any institution consciously decide to
follow a course of action that would weaken the organization? The only answer
(is this a scare quote?) is that somehow weakening the institution is less
important than advancing some other supposed goal, all the while citing no
authority to support such a contention.











From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Monday, November 07, 2005
11:10 PM
To: religionlaw@lists.ucla.edu
Subject: Re: FYI: An Interesting
See You at the Pole Case









In a message dated 11/7/2005 3:11:57 P.M.
Eastern Standard Time, [EMAIL PROTECTED] writes:





Catholics cant do that.







If there is a weakness to the EAA, this
is probably where it lies. 











The Act disadvantages students forming
religious clubs in ways that are different than other types of
organizations. It does this by subjecting religious groups to the special
restriction that they may only have custodial monitors (faculty or staff whose principal
interest is in insuring the safety and security of propertty and persons) while
other clubs can have sponsors (faculty and staff whose principal interest may
well be and often is in the subject area of the club or in the service
activities of the organization sponsored)).











Of course, there may be religious
observances that can be organized and led by laity that are appropriate for
Catholic young people.For example, every Saturday here in the District of Columbia, a
group of Catholic college students varying in number from 20 to 100 spend the
morning praying the rosary on the public sidewalk in the vicinity of an
abortion business. Certainly Catholic students could organize group
prayer activities including the Rosary; and they could conduct studies of
Catholic teaching and thought. In this sense, Catholic students probably
are not so much disadvantaged as might otherwise seem. True, at least
from my experience and perspective, that a student Baptist group could
approximate a worship service that would not be hindered by the fact that none
of the students was ordained as a minister of the Gospel, while a students only
service for Catholic students would not take the form of a Mass. 











And you probably have in mind celebration
of the Mass, and the EAA, by denying students access to outside participants on
a regular, on-going basis, would seem to havea disparate impact on
religious observants whose faith family reposes special spiritual authority or
giftedness in a priest or minister.











Jim Henderson





Senior Counsel





ACLJ








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RE: The institution of marriage

2005-11-08 Thread Scarberry, Mark

I appreciate Perry's thoughtful comments. Near the end he says, I 
don't think that religious objectors to same-sex marriage are entitled to 
any sort of veto in the contest over the meaning of marriage. If they
aren't entitled to a veto, are they nevertheless (anagrammatically speaking)
entitled to a vote?

To put it another way, if their interests are legitimate, are they entitled
to put those interests forward and see whether the democratic process
results in protection of those interests?

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: Perry Dane [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 12:40 PM
To: religionlaw@lists.ucla.edu
Subject: The institution of marriage

Ed Brayton  wrote:
I fail to see how the institution of
marriage can be destroyed without having any actual marriage damaged in any
conceivable way. It's not going to do anything to any marriage that I'm
aware of. No one I know is going to leave their spouse if gay marriage is
legalized, or stop loving their kids, or choose not to get married. If
anyone's marriage is fragile enough that it can damaged by the prospect of
people they don't know being allowed to get married, there wasn't any hope
for that marriage in the first place. And without destroying any particular
marriage, how is the institution of marriage to be destroyed? I've never
seen a logical causal argument made here to support this kind of rhetoric;
I
suspect I never will.

 I don't oppose same-sex marriage.  But I do understand the 
argument that same-sex marriage would threaten the institution of 
marriage, particularly as that institution is understood in many (though, 
of course, not all) religious traditions.  The issue is not whether any 
given marriage will be damaged, but rather whether the cultural meaning of 
the institution -- the set of purposes, expectations, and even cosmic 
meanings -- that are ascribed to it will shift in a way that will 
unavoidably spill over beyond the merely secular realm to religious 
communities as well.  I think it's useful to think of the institution of 
marriage as being, at least in part, a piece of cultural capital in whose 
meaning various communities invest, and whose value as a bearer of meaning 
risks being appropriated, so to speak, when the state radically changes 
the rules.

 Consider two analogies:  (1) Why do many American Indians object 
to the use of Indian names and mascots by sports teams, even when the names 
and mascots are not inherently offensive or insulting?  One reason is that 
the appropriation of names and symbols such as Braves inevitably alters 
and dilutes the meaning of such names and symbols among Native Americans 
themselves.  (2) Or consider the pyrrhic victory argument in 
Establishment Clause debates; that is to say, the argument (which I tend to 
support in lots of contexts) that governmental sponsorship of religious 
symbols such as creches or religious practices such as prayers threatens to 
debase and trivialize the genuine religious meaning of those symbols or 
practices.  That is to say, creches and prayers, as pieces of religious 
capital and bearers of meaning, are altered, even in their private use, by 
their public misuse.

 Now, of course, to understand the argument that same-sex marriage 
would threaten the institution of marriage as it is understood in many 
religious traditions is not to support that argument.   If nothing else, 
filling in that argument would require a really detailed and careful 
account of the complicated relationship between marriage as a piece of 
religious capital and marriage as a civil institution.  In any event, I 
don't think that religious objectors to same-sex marriage are entitled to 
any sort of veto in the contest over the meaning of marriage.   But we 
should at least be willing to acknowledge that there is something genuine 
at issue here.

 Perry



***
Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/

Work:   (856) 225-6004
Fax:   (856) 969-7924
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RE: FYI: An Interesting See You at the Pole Case

2005-11-08 Thread Berg, Thomas C.









Just to be clear: I dont
think that this disparate impact (Protestant student-led worship services
protected by the Act, Catholic masses not protected) warrants Catholics opposing
the EAA. For several reasons: (1) There are lots of other things
that Catholic student groups might do that the Act would protect. (2) The
Act doesnt bar student clubs that fall outside of its parameters; it simply
doesnt give them statutory protection, and they fall back (as Doug noted)
on the First Amendment, which might well protect the mass if other student
groups are allowed to have non-school adults participate in any of their events.
(3) It would be better for free speech and civil liberties if the Act were extended
to encompass the Catholic mass than if it were repealed to leave every student
club equally without statutory protection against content-based discrimination.




On the more general issue about traditionalist
Catholics making common cause with conservative Protestants: I suppose,
to answer Professor Newsom, that one piece of evidence that the Catholic
Church might be willing to lose members in order to save unborn children
is the move by several bishops (with some encouragement from the new Pope) to
deny communion to vigorously pro-choice politicians. Calls for such
denials are often accompanied by arguments that the Church has become too lax
on fundamental moral teachings, and on disciplining members who stand against
them, and that it needs to become more sectarian and disciplined
on this even if that results in a smaller Church. I wouldnt claim
that the move to deny communion reflects a view that objection to
abortion is deeper than the liturgy; but as read the
arguments, it does reflect a view that whether one is eligible to receive the
sacrament, and thus be in communion with the Church, cannot be entirely
separated from whether one is in communion with the Churchs position on
fundamental moral issues.



Of course, only a few bishops to date have
indicated they will refuse communion in this way  which might show that
the Church as a whole does not treat abortion as so non-negotiable.
However, my claim was never that *all*
Catholics, or the Church as a whole, were aligning with evangelicals based on
issues like abortion. My claim was only that *traditionalist* Catholics are doing so in large numbers (helping
to produce a realignment of religious-political conflict from Catholic/Protestant
to traditionalist/progressive). That claim, I believe, gains further
support from the recent communion wars, because it is traditionalist Catholics
who have fueled the drive for bishops to take steps against pro-choice
politicians. The communion denials, which I imagine will only grow as an
issue, show that many traditionalist Catholics are quite willing to bring
abortion, a cultural-moral-political issue, to bear on the liturgy.



Tom Berg, University of St. Thomas (Minnesota) 









-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]] 
Sent: Tuesday, November 08, 2005
2:43 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case



Precisely the
point. And I want to credit Tom Berg for making much the same point in a
recent article. So I criticized the Church for supporting EAA without
thinking through the disadvantages that would result. Some think that
that criticism reflects a view of Catholicism that is essentially
mean-spirited, that if Catholics didnt support EAA then it meant that
they were anti- this or anti- that. That take on the matter is, of
course, utterly without merit. Why would any institution consciously
decide to follow a course of action that would weaken the organization?
The only answer (is this a scare quote?) is that somehow
weakening the institution is less important than advancing some other supposed
goal, all the while citing no authority to support such a contention.











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Monday, November 07, 2005
11:10 PM
To: religionlaw@lists.ucla.edu
Subject: Re: FYI: An Interesting
See You at the Pole Case









In a
message dated 11/7/2005 3:11:57 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:





Catholics cant do
that.







If
there is a weakness to the EAA, this is probably where it lies. 











The Act
disadvantages students forming religious clubs in ways that are different than
other types of organizations. It does this by subjecting religious groups
to the special restriction that they may only have custodial monitors (faculty
or staff whose principal interest is in insuring the safety and security of
propertty and persons) while other clubs can have sponsors (faculty and staff
whose principal interest may well be and often is in the subject area of the
club or in the service activities of the organization sponsored)).











Of
course, there may be religious observances that can be organized and led by
laity that are appropriate

Candor

I like to think that I do practice candor.  If Prof. Newsom
believes that I am not being candid about something -- that is to say,
that I'm lying about something (as opposed to being mistaken, which I'm
certain I must be on many things) -- I would appreciate it if he backed
up his accusation with some specific facts.

Eugene

Michael Newsom writes:

 Your response to point 1 begs the question.  You insist on 
 trivializing liturgy.  You are welcome to do so, but please 
 don't impute your point of view to others.
 
 I think that you also trivialize the Religion Clauses, but 
 there is no need to rehearse that argument here.
 
 
 You need to find some authority for your audacious claim that 
 the Catholic Church might be willing to lose members in order 
 to save unborn children.  Your claim supposes that the only 
 way to save them is to run the risk.  I don't buy that for a 
 minute, and I seriously doubt that the Church does either.  
 Again you are engaging in some remarkable trivializing
 
 Eugene, you tend to trivialize matters that either you don't 
 know much about or lack sympathy for -- the Mass, the 
 Religion Clauses, and the Catholic faith community.
 
 You call for candor, you ought to practice it.
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RE: Bible study ban for RA's in UW-Eau Claire dorms

What makes this a hard case is that RAs wear several different hats  --
and it's not that easy to distinguish between them because RAs don't
have fixed office hours (at least I don't think they do) and may be on
the job for a good part of the day  -- maybe all of it.

So let's break this down. 

1. Suppose an RA is on the job, at the office in a sense, and available
for counseling or other work related interactions with dorm students
from 9 to 5, Monday through Friday. Could he be told not to hold bible
study classes in his room during this period? Would the University also
have to prohibit him from holding other kinds of meetings as well.

2. Who gets invited to these classes? Does it matter whether the RA
invites students from the hall for which he is an RA.

3. Can I hold Torah study classes in my office at the Law School during
the school day and invite my students to attend? Can the Law School
prohibit me from doing so?

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005 12:02 PM
To: Volokh, Eugene; Law  Religion issues for Law Academics
Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms

Sorry if I was opaque:  Rosenberger is relevant because it held that
exclusion of religious speech was viewpoint discrimination even when
partisan political speech was also excluded (since the U Va policy was
no religious speech or partisan political speech).  The proper
comparison for determining whether the policy discriminates against
religion is thus whether other ideological speech is allowed, not
whether partisan political speech is allowed.

Nor do I think that Rust v. Sullivan is quite apt here, for reasons
that Rosenberger pointed to.  The school isn't trying to convey some
programmatic message here; it's not setting up a forum for the
expression of some particular government viewpoint.  Rather, it's
allowing the RA to engage in a wide range of speech in his dorm room --
just not religious speech (and political partisan speech).  And it seems
to me that this is especially so when the workplace is necessarily the
person's home as well.  If Rust applied, then the university could ban
pro-choice speech by RAs in their dorm rooms, unpatriotic speech,
antiwar speech, and whatever else; can that possibly be right?

Now if the university were to set up rules for what RAs say to
students who come to their room for counseling, that might be a
different story.  (There they might even be able to say that the RAs
can't counsel students to get abortions, for instance.)  But when the
university is trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any
time during the day in their dorm rooms, that seems to me pretty far
from Rust.

Eugene

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
Sent: Tuesday, November 08, 2005 1:52 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms


All good points.  But if this is properly framed as a case about the
religious activities of a public employee in the workplace, I'm unclear
how Rosenberger is relevant.  The policy apparently says nothing about
the freedom of ordinary students living in the dorms to apply for
university funds to organize Bible studies on equal terms with other
activities.  If we're analogizing non-employment lines of First
Amendment doctrine, this seems closer to Rust v. Sullivan:  the
university is paying you to be someplace and to perform specific tasks,
and certain things you may want to do during that university-paid time,
whether religious or political, may be incompatible with the purpose of
the role you've contracted to fill.  
 
I appreciate Steve Prescott's post.  But since we don't have information
on how the university enforces the policy with regard to political
ideology or other religions, I'd suggest it's not productive to let such
speculation convince us that this must be religious discrimination
against Christians.  (He may well be right, and if he is, then the
university should be faulted.)  
 
As to Eugene's diversity point, I certainly agree in the abstract.
Whether the university is being hypocritical depends on whether they're
trying to suppress the RA's personal identity as an open Christian
(which they clearly can't and shouldn't do) or his proselytizing (if
indeed that's what's happening here, then it's a more legitimate
concern).  It's not the RA who's the issue, it's his in-the-workplace
activities.  The legal question here turns, I think, on the nature of
the Bible study sessions - whether they're within the legitimate bounds
of personal free exercise, or more akin to what was happening at the Air
Force Academy.
 
Steve
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The institution of marriage

2005-11-08 Thread Perry Dane


Mark Scarberry writes:


I appreciate Perry's thoughtful comments. Near the end he says, I
don't think that religious objectors to same-sex marriage are entitled to
any sort of veto in the contest over the meaning of marriage. If they
aren't entitled to a veto, are they nevertheless (anagrammatically speaking)
entitled to a vote?

To put it another way, if their interests are legitimate, are they entitled
to put those interests forward and see whether the democratic process
results in protection of those interests?


For what it's worth, I do think that religious folk are legitimate 
stakeholders in the debate over same-sex marriage.  That gives them both a 
vote and a voice.


On the other hand, I don't think that this necessarily means that 
only the democratic process should resolve this debate.  Sometimes the 
Constitution overrides even legitimate voices.  (Do I think there's a 
constitutional right to same-sex marriage?  I'm still struggling with that 
question.  But I certainly don't think that the question is out of bounds, 
or that courts that decide in favor of such a right are crossing some 
fundamental red line.)


On the third hand (there's usually a third hand), I also think 
that the legitimate religious stake in the definition of marriage renders 
both coherent (see my essay, The Intersecting Worlds of Religious and 
Secular Marriage, in Law and Religion: Current Legal Issues, Vol. 4, at 385 
(Richard O'Dair  Andrew Lewis, eds., Oxford University Press 2001)) and 
normatively very tempting a compromise solution such as Vermont-style 
(i.e., including all the secular legal incidents of marriage) civil unions.


Perry




***
Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/

Work:   (856) 225-6004
Fax:   (856) 969-7924
Home:   (610) 896-5702
***


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Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism

I surely don't wish to trivialize the Mass, which is most
certainly very important for Catholics.  Saying that preventing mass
murder is worth running the risk of X hardly means that X is trivial.  I
also don't understand where I've suggested that I lack sympathy for the
Religion Clauses or for the Catholic faith community.  I certainly
lack sympathy for Prof. Newsom's interpretation of the Religion Clauses,
but that strikes me as a rather different matter.  

As to my audacious claim that the Catholic Church might be
willing to lose members in order to save unborn children, let me offer
two thoughts:

(1)  It is simply not the case that [this] claim supposes that
the only way to save them is to run the risk.  My original paragraph
read Might the Church think that an alliance might actually win more
converts from Catholicism to Protestantism (perhaps because the Church
thinks that Catholicism is true and more persuasive than Protestantism)
than vice versa?  Might it think that winning more converts to
Christianity of any stripe (both from the non-Christian and from those
who are Christian in name only) is so important that it's worth risking
a small amount of conversion away from Catholicism?  Might it think that
preventing the deaths of millions of unborn children is likewise worth
running this small risk?  The first sentence in that paragraph
specifically suggested that an alliance with Protestants might help
Catholics *gain* members (as well as perhaps helping rescue the unborn).
The other two questions merely suggested that *even if* there's some
risk that an alliance would lose the Church a few members, such a risk
might be worth running to save unborn lives -- not that the only way
to help decrease the number of abortions is to lose members.

(2)  But much more importantly, perhaps some other list members
might speak to whether my claim is accurate or even that audacious.
As I understand Catholic teaching, a person doesn't forfeit salvation by
converting from Catholicism to Protestantism; it surely isn't good for
him to do so, but it's not horrifically bad in the way that a loss of
salvation might be.  And as I understand Catholic teaching, the killing
of the unborn is very bad indeed.

Say a Catholic was convinced, as a factual matter, that -- as
Prof. Newsom earlier suggested -- an alliance with Protestants might
lose a few Catholics to Protestantism, but was also convinced, as a
factual matter, that such an alliance might save many unborn children.
Would it really be that shocking, or trivializing, for the Catholic to
think that preventing the deaths of millions of unborn children is . .
. worth running this small risk [of losing some Catholics to
Protestantism]?  Can one take this view and yet still be sympathetic to
the Mass and to the Catholic faith community?  

Speaking for myself, it is my sympathy for Catholics -- my view
of them as being genuinely interested in good works and in saving
innocent life -- that leads me to assume that they'd take such a view.
But I'd love to hear what other list members, especially those who are
intimately familiar with Catholic thought, have to say about this.

Eugene

Michael Newsom writes:

 Your response to point 1 begs the question.  You insist on 
 trivializing liturgy.  You are welcome to do so, but please 
 don't impute your point of view to others.
 
 I think that you also trivialize the Religion Clauses, but 
 there is no need to rehearse that argument here.
 
 You need to find some authority for your audacious claim that 
 the Catholic Church might be willing to lose members in order 
 to save unborn children.  Your claim supposes that the only 
 way to save them is to run the risk.  I don't buy that for a 
 minute, and I seriously doubt that the Church does either.  
 Again you are engaging in some remarkable trivializing
 
 Eugene, you tend to trivialize matters that either you don't 
 know much about or lack sympathy for -- the Mass, the 
 Religion Clauses, and the Catholic faith community.
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Free Exercise Clause and government employees

Alan asks some excellent points.  I should say that there are
sometimes Talmud study classes held during the day at UCLA law school; I
don't think they're taught by a faculty member, but if there were a
faculty member who wanted to teach them, I think that would be great,
and I think it would also be great if students were invited.

But let me ask a broader question; we've spoken so far about the
Free Speech Clause, but it seems to me the Free Exercise Clause is also
involved here.  Holding a Bible study class in the place where one
lives, it seems to me, is the exercise of religion.  A rule that
facially discriminates against such exercise of religion would thus
presumptively implicate the Free Exercise Clause.  See McDaniel v. Paty;
Lukumi Babalu.

Does Locke v. Davey rescue such a prohibition from invalidity?
Does the Free Exercise Clause somehow not apply to discrimination
against religious practices when the government is acting as employer?

Eugene

Alan Brownstein writes:

 What makes this a hard case is that RAs wear several 
 different hats  -- and it's not that easy to distinguish 
 between them because RAs don't have fixed office hours (at 
 least I don't think they do) and may be on the job for a good 
 part of the day  -- maybe all of it.
 
 So let's break this down. 
 
 1. Suppose an RA is on the job, at the office in a sense, and 
 available for counseling or other work related interactions 
 with dorm students from 9 to 5, Monday through Friday. Could 
 he be told not to hold bible study classes in his room during 
 this period? Would the University also have to prohibit him 
 from holding other kinds of meetings as well.
 
 2. Who gets invited to these classes? Does it matter whether 
 the RA invites students from the hall for which he is an RA.
 
 3. Can I hold Torah study classes in my office at the Law 
 School during the school day and invite my students to 
 attend? Can the Law School prohibit me from doing so?
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RE: FYI: An Interesting See You at the Pole Case









It is far too early to determine whether
the communion issue will gain traction in the Church. There are,
as near as I can tell, far more bishops opposed to denying communion than there
are those willing to do so. Burke and Chaput dont have a lot of company
on this matter, at least not yet, and not publicly. And, in any event, I am
not sure that the point of denying communion is to drive liberals out of the
Church, although, for some, it might be. Discipline and expulsion are not the
same thing.



Traditionalist Catholics may
or may not run the Church. 47% of American Catholics voting in the 2004
election voted for Kerry. Again, time will tell whether the Church decides to
become an arm of the Republican Party. My hunch is that it will not, but I
could be wrong and the Republicans are trying very hard to make it happen.



It is always possible that traditionalists
will overplay their hand. Interest convergence is just that, a temporary state
of affairs. The large claim that agreement on social issues trumps
disagreement on theological issues remains to be proven. And it certainly
remains to be proven that the Church will proclaim that such an agreement is an
indispensable element of being Catholic.



On the first point, I will simply refer to
the footnote in your article in which you grant that my concerns about EAA and
the Church might have some merit. Maybe you are withdrawing that footnote.
Second, why would you conclude that I would not support an EAA which allowed
priests to celebrate Mass at the behest of a Catholic student group? That
argument is clearly out of bounds. My objection has always been to EAA as it
exists. Why the resort to a straw man? 











From: Berg, Thomas C.
[mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005
4:44 PM
To: 'Law
  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting
See You at the Pole Case





Just to be clear: I dont
think that this disparate impact (Protestant student-led worship services
protected by the Act, Catholic masses not protected) warrants Catholics
opposing the EAA. For several reasons: (1) There are lots of other
things that Catholic student groups might do that the Act would protect.
(2) The Act doesnt bar student clubs that fall outside of its
parameters; it simply doesnt give them statutory protection, and they
fall back (as Doug noted) on the First Amendment, which might well protect the
mass if other student groups are allowed to have non-school adults participate
in any of their events. (3) It would be better for free speech and civil
liberties if the Act were extended to encompass the Catholic mass than if it were
repealed to leave every student club equally without statutory protection
against content-based discrimination. 



On the more general issue about
traditionalist Catholics making common cause with conservative
Protestants: I suppose, to answer Professor Newsom, that one piece of
evidence that the Catholic Church might be willing to lose members in
order to save unborn children is the move by several bishops (with some
encouragement from the new Pope) to deny communion to vigorously pro-choice
politicians. Calls for such denials are often accompanied by arguments
that the Church has become too lax on fundamental moral teachings, and on
disciplining members who stand against them, and that it needs to become more
sectarian and disciplined on this even if that results in a
smaller Church. I wouldnt claim that the move to deny communion
reflects a view that objection to abortion is deeper than
the liturgy; but as read the arguments, it does reflect a view that
whether one is eligible to receive the sacrament, and thus be in communion with
the Church, cannot be entirely separated from whether one is in communion with
the Churchs position on fundamental moral issues.



Of course, only a few bishops to date have
indicated they will refuse communion in this way  which might show that
the Church as a whole does not treat abortion as so non-negotiable.
However, my claim was never that *all*
Catholics, or the Church as a whole, were aligning with evangelicals based on
issues like abortion. My claim was only that *traditionalist* Catholics are doing so in large numbers
(helping to produce a realignment of religious-political conflict from
Catholic/Protestant to traditionalist/progressive). That claim, I
believe, gains further support from the recent communion wars, because it is
traditionalist Catholics who have fueled the drive for bishops to take
steps against pro-choice politicians. The communion denials, which I
imagine will only grow as an issue, show that many traditionalist Catholics are
quite willing to bring abortion, a cultural-moral-political issue, to bear on
the liturgy.



Tom Berg, University
of St. Thomas (Minnesota) 









-Original Message-
From: Newsom Michael
[mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005
2:43 PM
To: Law
  Religion issues for Law Academics

RE: The institution of marriage

In order to answer Mark's question, we have to decide whether there is a
constitutional dimension to the cultural capital associated with
marriage (accepting Perry's analysis for the moment). Let me pose a
hypothetical question. Are religious individuals entitled to a vote on
the question of what constitutes a religion for cultural capital
purposes? A group calls itself a religion. Members of other faiths are
willing extend to them the same statutory accommodations available to
other faiths, but balk at the law referring to this group's beliefs as a
religion. Or, to extend Justice Scalia's analysis in McCreary, perhaps
non monotheistic beliefs systems will get the same accommodations
available to Jews, Christians etc, but only if they are identified as
non-deistic associations, rather than religions.

Alan Brownstein



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Tuesday, November 08, 2005 1:31 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The institution of marriage

I appreciate Perry's thoughtful comments. Near the end he says, I 
don't think that religious objectors to same-sex marriage are entitled
to 
any sort of veto in the contest over the meaning of marriage. If they
aren't entitled to a veto, are they nevertheless (anagrammatically
speaking)
entitled to a vote?

To put it another way, if their interests are legitimate, are they
entitled
to put those interests forward and see whether the democratic process
results in protection of those interests?

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: Perry Dane [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 12:40 PM
To: religionlaw@lists.ucla.edu
Subject: The institution of marriage

Ed Brayton  wrote:
I fail to see how the institution of
marriage can be destroyed without having any actual marriage damaged in
any
conceivable way. It's not going to do anything to any marriage that I'm
aware of. No one I know is going to leave their spouse if gay marriage
is
legalized, or stop loving their kids, or choose not to get married. If
anyone's marriage is fragile enough that it can damaged by the prospect
of
people they don't know being allowed to get married, there wasn't any
hope
for that marriage in the first place. And without destroying any
particular
marriage, how is the institution of marriage to be destroyed? I've
never
seen a logical causal argument made here to support this kind of
rhetoric;
I
suspect I never will.

 I don't oppose same-sex marriage.  But I do understand the 
argument that same-sex marriage would threaten the institution of 
marriage, particularly as that institution is understood in many
(though, 
of course, not all) religious traditions.  The issue is not whether any 
given marriage will be damaged, but rather whether the cultural meaning
of 
the institution -- the set of purposes, expectations, and even cosmic 
meanings -- that are ascribed to it will shift in a way that will 
unavoidably spill over beyond the merely secular realm to religious 
communities as well.  I think it's useful to think of the institution
of 
marriage as being, at least in part, a piece of cultural capital in
whose 
meaning various communities invest, and whose value as a bearer of
meaning 
risks being appropriated, so to speak, when the state radically
changes 
the rules.

 Consider two analogies:  (1) Why do many American Indians
object 
to the use of Indian names and mascots by sports teams, even when the
names 
and mascots are not inherently offensive or insulting?  One reason is
that 
the appropriation of names and symbols such as Braves inevitably
alters 
and dilutes the meaning of such names and symbols among Native Americans

themselves.  (2) Or consider the pyrrhic victory argument in 
Establishment Clause debates; that is to say, the argument (which I tend
to 
support in lots of contexts) that governmental sponsorship of religious 
symbols such as creches or religious practices such as prayers threatens
to 
debase and trivialize the genuine religious meaning of those symbols or 
practices.  That is to say, creches and prayers, as pieces of religious

capital and bearers of meaning, are altered, even in their private use,
by 
their public misuse.

 Now, of course, to understand the argument that same-sex
marriage 
would threaten the institution of marriage as it is understood in
many 
religious traditions is not to support that argument.   If nothing else,

filling in that argument would require a really detailed and careful 
account of the complicated relationship between marriage as a piece of 
religious capital and marriage as a civil institution.  In any event,
I 
don't think that religious objectors to same-sex marriage are entitled
to 
any sort of veto in the contest over the meaning of marriage.   But we 
should at least be willing to acknowledge that there is something
genuine 
at

RE: Bible study ban for RA's in UW-Eau Claire dorms









I recognize that it
makes this case seem much more troubling to characterize the university policy
as a blanket ban on all religious speech in a person's private room. But
I'm afraid we're beginning to argue scenarios somewhat different from what's
been presented. 



Eugene characterizes this as allowing the RA to engage in a wide
range of speech in his dorm room -- just not religious speech and the
university ... trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any time
during the day in their dorm rooms. It would be helpful to know the
source for these categorical characterizations, which seem to me to go beyond
the facts in evidence.



My own reading of whats happening -- based, I admit, on only a sketchy
newspaper story combined with my own experience on a campus -- is that the RA makes
it public knowledge that he hosts Bible study in his room or some common area
of the dorm (it's unclear which), and probably extends an invitation to those
whod like to participate. (If these were not openly advertised
events, its doubtful they would have come to the Universitys
attention as a matter of concern.) So what we have is not just any religious
speech exchanged among students in the privacy of someones room, but
rather, more precisely, an educational program, if not a devotional exercise,
being run by the RA and (probably) advertised within the workplace. The universitys
fear, as I understand it, is that students who don't share the RA's
perspectives will feel less able to come to him, *not* because of his personal
identity, beliefs, or the religious viewpoints he might express in his dorm
room, but because his public profile as an organizer of on-site religious
activities raises a concern that he may bring perspectives to their problems
that would be inappropriate for a state actor.



Steve 





 -Original Message-

 From: [EMAIL PROTECTED] [mailto:religionlaw-

 [EMAIL PROTECTED] On Behalf Of Volokh, Eugene

 Sent: Tuesday, November 08, 2005 12:02 PM

 To: Volokh, Eugene; Law  Religion
 issues for Law Academics

 Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms

 

 Sorry if I was opaque: Rosenberger
is relevant because it held that

 exclusion of religious speech was viewpoint discrimination even
when

 partisan political speech was also excluded (since the U Va policy
was

 no religious speech or partisan political speech). The
proper

 comparison for determining whether the policy discriminates
against

 religion is thus whether other ideological speech is allowed, not

 whether partisan political speech is allowed.

 

 Nor do I think that Rust v. Sullivan is
quite apt here, for reasons

 that Rosenberger pointed to. The school isn't trying to
convey some

 programmatic message here; it's not setting up a forum for the

 _expression_ of some particular government viewpoint. Rather,
it's

 allowing the RA to engage in a wide range of speech in his dorm
room --

 just not religious speech (and political partisan speech).
And it seems

 to me that this is especially so when the workplace is
necessarily the

 person's home as well. If Rust applied, then the university
could ban

 pro-choice speech by RAs in their dorm rooms, unpatriotic speech,

 antiwar speech, and whatever else; can that possibly be right?

 

 Now if the university were to set up rules
for what RAs say to

 students who come to their room for counseling, that might be a

 different story. (There they might even be able to say that
the RAs

 can't counsel students to get abortions, for instance.) But
when the

 university is trying to govern what RAs say to their friends and

 classmates -- even ones who aren't coming in for counseling -- at
any

 time during the day in their dorm rooms, that seems to me pretty
far

 from Rust.

 

 Eugene

 

 -Original Message-

 From: [EMAIL PROTECTED]

 [mailto:[EMAIL PROTECTED] On Behalf Of Steve
Sanders

 Sent: Tuesday, November 08, 2005 1:52 PM

 To: 'Law  Religion issues for Law
 Academics'

 Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms

 

 

 All good points. But if this is properly framed as a case
about the

 religious activities of a public employee in the workplace, I'm
unclear

 how Rosenberger is relevant. The policy apparently says
nothing about

 the freedom of ordinary students living in the dorms to apply for

 university funds to organize Bible studies on equal terms with
other

 activities. If we're analogizing non-employment lines of
First

 Amendment doctrine, this seems closer to Rust v. Sullivan:
the

 university is paying you to be someplace and to perform specific
tasks,

 and certain things you may want to do during that university-paid
time,

 whether religious or political, may be incompatible with the
purpose of

 the role you've contracted to fill.

 

 I appreciate Steve Prescott's post. But since we don't have
information

 on how the university

Re: Candor

2005-11-08 Thread FRAP428

In a message dated 11/8/05 4:45:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

I like to think that I do practice candor. 

I know you do, Eugene. But I believe that you are influenced by your viewpoints, even though you are unaware of how they are shaping your reactions. And no, Eugene, I cannot point to a single discrete instance, but rather my oberservations based on having been a member of this list since 1996 or 1997-ish. And it may well be that this isn't apparent to those who share your general approach--sort of like a fish not feeling water (which, of course, is the difficulty for those in a particular faith tradition). It is hard to empathize with those who are unlike you and the more unlike you someone is the harder it is to empathize. I am moved to compassion more by a fuzzy little Shetland Sheepdog than by an pit bull or an alligator or a house fly. I sympathize with what I have a kinship with or that something I find already appealing. 

The evangelical doesn't truly "see" the problem with being proselytized because for him or her it isn't a problem. He or she may not like being proslytized by someone of a different faith or religion, but deep down there is an understanding because they only differ on the particulars. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

Cuimhnich air na daoine o'n d'thàinig thu
--- Remember the people from whom you came.
___
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RE: FYI: An Interesting See You at the Pole Case

2005-11-08 Thread Berg, Thomas C.









Im not withdrawing anything; I said
in the article that your point about the disparate impact was well taken, but
that it would be better to expand the EAA than to use any disparate impact as a
basis for repealing it. If you agree with that, great. I must say,
though, that your strong and repeatedly expressed opposition to Protestant student
clubs  which would still exist even if Catholic students could celebrate
mass  led me to think (quite reasonably I believe) that youd
probably still support repeal of the Act even then.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]] 
Sent: Tuesday, November 08, 2005
4:09 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case



It is far too early to
determine whether the communion issue will gain traction in the
Church. There are, as near as I can tell, far more bishops opposed to
denying communion than there are those willing to do so. Burke and Chaput
dont have a lot of company on this matter, at least not yet, and not
publicly. And, in any event, I am not sure that the point of denying
communion is to drive liberals out of the Church, although, for some, it might
be. Discipline and expulsion are not the same thing.



Traditionalist
Catholics may or may not run the Church. 47% of American Catholics voting
in the 2004 election voted for Kerry. Again, time will tell whether the
Church decides to become an arm of the Republican Party. My hunch is that
it will not, but I could be wrong and the Republicans are trying very hard to
make it happen.



It is always possible
that traditionalists will overplay their hand. Interest
convergence is just that, a temporary state of affairs. The large claim
that agreement on social issues trumps disagreement on theological issues
remains to be proven. And it certainly remains to be proven that the
Church will proclaim that such an agreement is an indispensable element of
being Catholic.



On the first point, I
will simply refer to the footnote in your article in which you grant that my
concerns about EAA and the Church might have some merit. Maybe you are
withdrawing that footnote. Second, why would you conclude that I would
not support an EAA which allowed priests to celebrate Mass at the behest of a
Catholic student group? That argument is clearly out of
bounds. My objection has always been to EAA as it exists. Why the
resort to a straw man? 











From: Berg,
Thomas C. [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005
4:44 PM
To: 'Law  Religion issues for
Law Academics'
Subject: RE: FYI: An Interesting
See You at the Pole Case





Just to be clear: I
dont think that this disparate impact (Protestant student-led worship
services protected by the Act, Catholic masses not protected) warrants
Catholics opposing the EAA. For several reasons: (1) There are lots
of other things that Catholic student groups might do that the Act would
protect. (2) The Act doesnt bar student clubs that fall outside of
its parameters; it simply doesnt give them statutory protection, and
they fall back (as Doug noted) on the First Amendment, which might well protect
the mass if other student groups are allowed to have non-school adults
participate in any of their events. (3) It would be better for free
speech and civil liberties if the Act were extended to encompass the Catholic
mass than if it were repealed to leave every student club equally without
statutory protection against content-based discrimination. 



On the more general issue
about traditionalist Catholics making common cause with conservative
Protestants: I suppose, to answer Professor Newsom, that one piece of
evidence that the Catholic Church might be willing to lose members in
order to save unborn children is the move by several bishops (with some
encouragement from the new Pope) to deny communion to vigorously pro-choice
politicians. Calls for such denials are often accompanied by arguments
that the Church has become too lax on fundamental moral teachings, and on
disciplining members who stand against them, and that it needs to become more
sectarian and disciplined on this even if that results in a
smaller Church. I wouldnt claim that the move to deny communion
reflects a view that objection to abortion is deeper than
the liturgy; but as read the arguments, it does reflect a view that
whether one is eligible to receive the sacrament, and thus be in communion with
the Church, cannot be entirely separated from whether one is in communion with
the Churchs position on fundamental moral issues.



Of course,

RE: Candor

Surely Frances is right that I am influenced by [my] viewpoints, even 
though you are unaware of how they are shaping your reactions -- all of us 
are.  I try to be empathetic to those who are quite different from me; for 
instance, I am most certainly not an evangelical Christian (or a Christian at 
all), though I think I empathize with attempts to restrict their speech.  But 
it may well be that I don't fully understand others' perspective.

But please note that Prof. Newsom wasn't simply accusing me of being 
influenced, as we all are, by our viewpoints.  He was accusing me of lack of 
candor.  (You call for candor, you ought to practice it.)  I'd like to know 
what it was that I was supposedly not candid about, so I can defend myself 
against that accusation.

Eugene


-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, November 08, 2005 2:24 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Candor


In a message dated 11/8/05 4:45:37 PM Eastern Standard Time, [EMAIL PROTECTED] 
writes:


I like to think that I do practice candor. 


I know you do, Eugene. But I believe that you are influenced by your 
viewpoints, even though you are unaware of how they are shaping your reactions. 
And no, Eugene, I cannot point to a single discrete instance, but rather my 
oberservations based on having been a member of this list since 1996 or 
1997-ish.  And it may well be that this isn't apparent to those who share your 
general approach--sort of like a fish not feeling water (which, of course, is 
the difficulty for those in a particular faith tradition). It is hard to 
empathize with those who are unlike you and the more unlike you someone is the 
harder it is to empathize. I am moved to compassion more by a fuzzy little 
Shetland Sheepdog than by an pit bull or an alligator or a house fly. I 
sympathize with what I have a kinship with or that something I find already 
appealing. 

The evangelical doesn't truly see the problem with being proselytized because 
for him or her it isn't a problem. He or she may not like being proslytized by 
someone of a different faith or religion, but deep down there is an 
understanding because they only differ on the particulars. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

Cuimhnich air na daoine o'n d'thàinig thu
--- Remember the people from whom you came.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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messages to others.

Re: Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism

2005-11-08 Thread Will Esser

Eugene,

As a practicing Catholic and someone who has watched the posts on this list for several years, I believe that Prof. Newsom's comments regarding the collaboration between the Catholic Church and members of Protestant faiths is in the distinct minority. One need only look at the numerous dialogues which are on-going between the United States Conference of Catholic Bishops and the leadership of various other Protestant demoninations (http://www.usccb.org/seia/dialogues.htm) to see that the Catholic Church is actively engaged in reaching out and working with other religions, rather than simply "desiring to be left alone."

While it has been the case that the Catholic Church has lost members to Protestant denominations (and vice versa), the Catholic Church has never viewed this as a cause or basis for cutting alliances or discussions with other faiths. Rather, if anything, such losses are a call to more properly chatechize the Church's members so that they can truly know and understand their faith. Catholics who are devouted to the Mass and their faith can most certainly join with members of other religions in supporting a cause (i.e. protecting unborn life). I personally have been involved in several such organizations and my personal experience is that such involvement often tends to deeper faith. It is the challenged faith which is oftentimes most deeply held.

All the best from Charlotte,

Will Esser



"Volokh, Eugene" [EMAIL PROTECTED] wrote:
I surely don't wish to trivialize the Mass, which is mostcertainly very important for Catholics. Saying that preventing massmurder is worth running the risk of X hardly means that X is trivial. Ialso don't understand where I've suggested that I lack sympathy for theReligion Clauses or for "the Catholic faith community." I certainlylack sympathy for Prof. Newsom's interpretation of the Religion Clauses,but that strikes me as a rather different matter. As to my "audacious claim that the Catholic Church might bewilling to lose members in order to save unborn children," let me offertwo thoughts:(1) It is simply not the case that "[this] claim supposes thatthe only way to save them is to run the risk." My original paragraphread "Might the Church think that an alliance might actually win moreconverts from Catholicism to
 Protestantism (perhaps because the Churchthinks that Catholicism is true and more persuasive than Protestantism)than vice versa? Might it think that winning more converts toChristianity of any stripe (both from the non-Christian and from thosewho are Christian in name only) is so important that it's worth riskinga small amount of conversion away from Catholicism? Might it think thatpreventing the deaths of millions of unborn children is likewise worthrunning this small risk?" The first sentence in that paragraphspecifically suggested that an alliance with Protestants might helpCatholics *gain* members (as well as perhaps helping rescue the unborn).The other two questions merely suggested that *even if* there's somerisk that an alliance would lose the Church a few members, such a riskmight be worth running to save unborn lives -- not that "the only way"to help decrease the number of abortions is to lose members.(2) !
 But much
 more importantly, perhaps some other list membersmight speak to whether my claim is accurate or even that "audacious."As I understand Catholic teaching, a person doesn't forfeit salvation byconverting from Catholicism to Protestantism; it surely isn't good forhim to do so, but it's not horrifically bad in the way that a loss ofsalvation might be. And as I understand Catholic teaching, the killingof the unborn is very bad indeed.Say a Catholic was convinced, as a factual matter, that -- asProf. Newsom earlier suggested -- an alliance with Protestants mightlose a few Catholics to Protestantism, but was also convinced, as afactual matter, that such an alliance might save many unborn children.Would it really be that shocking, or "trivializing," for the Catholic tothink "that preventing the deaths of millions of unborn children is . .. worth running this small risk [of losing some Catholics toProtestantism]"? Can one ta!
 ke this
 view and yet still be sympathetic tothe Mass and to the Catholic faith community? Speaking for myself, it is my sympathy for Catholics -- my viewof them as being genuinely interested in good works and in savinginnocent life -- that leads me to assume that they'd take such a view.But I'd love to hear what other list members, especially those who areintimately familiar with Catholic thought, have to say about this.EugeneMichael Newsom writes: Your response to point 1 begs the question. You insist on  trivializing liturgy. You are welcome to do so, but please  don't impute your point of view to others.  I think that you also trivialize the Religion Clauses, but  there is no need to rehearse that argument here.  You need to find some authority for your audacious claim that  the Catholic Church might be

Re: Candor

2005-11-08 Thread David E. Guinn




I am afraid that this appears to be a misuse of the 
term. To accuse Eugene of not being candid is to attack his integrety and 
honesty -- i.e. a circuitous way of saying he is lying.

To suggest that Eugene's opinions are biased by his 
world view, does nothing but state the obvious in a somewhat insulting 
way. Obviously, we are all influenced by our environment. The idea 
of this list, it seems to me, is to provide a forum in which we each express our 
ideas and challenge the ideas of others in an effort to better understand the 
issues at stake, the position taken by others and, occassionally be persuaded to 
change or adjust our ideas. 

I haven't seen Eugene do anything other than pursue 
this goal.

At least, that is my perception.

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  
  To: religionlaw@lists.ucla.edu 
  Sent: Tuesday, November 08, 2005 4:24 
  PM
  Subject: Re: Candor
  In a message dated 11/8/05 4:45:37 PM Eastern 
  Standard Time, [EMAIL PROTECTED] 
  writes:
  I like to think that I do practice candor. I 
  know you do, Eugene. But I believe that you are influenced by your viewpoints, 
  even though you are unaware of how they are shaping your reactions. And no, 
  Eugene, I cannot point to a single discrete instance, but rather my 
  oberservations based on having been a member of this list since 1996 or 
  1997-ish. And it may well be that this isn't apparent to those who share 
  your general approach--sort of like a fish not feeling water (which, of 
  course, is the difficulty for those in a particular faith tradition). It is 
  hard to empathize with those who are unlike you and the more unlike you 
  someone is the harder it is to empathize. I am moved to compassion more by a 
  fuzzy little Shetland Sheepdog than by an pit bull or an alligator or a house 
  fly. I sympathize with what I have a kinship with or that something I find 
  already appealing. The evangelical doesn't truly "see" the problem 
  with being proselytized because for him or her it isn't a problem. He or she 
  may not like being proslytized by someone of a different faith or religion, 
  but deep down there is an understanding because they only differ on the 
  particulars. Frances R. A. Paterson, J.D., Ed.D.Associate 
  ProfessorDepartment of Educational LeadershipValdosta State 
  UniversityValdosta, GA 31698Cuimhnich air na daoine o'n 
  d'thàinig thu--- Remember the people from whom you came.
  
  

  ___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.
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Bible study ban for RA's in UW-Eau Claire dorms

I may have been imprecise; my point is not that UW was trying to
ban all religious speech, only that it was expressly banning a
particular kind of speech (Bible study groups, or perhaps more generally
religious study meetings) defined by its religiosity.  Such
discrimination against subcategories of religious speech is
presumptively unconstitutional, it seems to me, even if it doesn't
discriminate against all religious speech.

But as to the university's fear about the student's fear, I'm
not sure I quite understand Steve's argument.  I agree that a student
won't be influenced by religious views that he never hears about.  But
say that a student hears that the RA is a minister in Church X, or is
prominently involved in Church X, or conducts a student group outside
his dorm room that relates to Church X.  Why would the student
distinguish that from the RA's conducting Church X Bible study in his
dorm room?  In either case, a student might equally say I think
enthusiastic members of Church X have certain biases, and that makes me
reluctant to ask those members for advice.  If the student, for
instance, is gay, and thinks that members of Church X strongly
disapprove of homosexuality, I take it that it's the RA's publicly known
membership in Church X that would make the student uncomfortable about
coming to the RA, regardless of how this membership becomes known.

Eugene


Steve Sanders writes:
 
 I recognize that it makes this case seem much more troubling to
characterize the university policy as a blanket ban on all religious
speech in a person's private room.  But I'm afraid we're beginning to
argue scenarios somewhat different from what's been presented.
 Eugene characterizes this as allowing the RA to engage in a wide range
of speech in his dorm room -- just not religious speech and the
university ... trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any
time during the day in their dorm rooms.  It would be helpful to know
the source for these categorical characterizations, which seem to me to
go beyond the facts in evidence.
 
My own reading of what's happening -- based, I admit, on only a sketchy
newspaper story combined with my own experience on a campus -- is that
the RA makes it public knowledge that he hosts Bible study in his room
or some common area of the dorm (it's unclear which), and probably
extends an invitation to those who'd like to participate.  (If these
were not openly advertised events, it's doubtful they would have come to
the University's attention as a matter of concern.)  So what we have is
not just any religious speech exchanged among students in the privacy of
someone's room, but rather, more precisely, an educational program, if
not a devotional exercise, being run by the RA and (probably) advertised
within the workplace.  The university's fear, as I understand it, is
that students who don't share the RA's perspectives will feel less able
to come to him, *not* because of his personal identity, beliefs, or the
religious viewpoints he might express in his dorm room, but because his
public profile as an organizer of on-site religious activities raises a
concern that he may bring perspectives to their problems that would be
inappropriate for a state actor.
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Re: Candor

2005-11-08 Thread FRAP428

In a message dated 11/8/05 5:36:08 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

But it may well be that I don't fully understand others' perspective.


Well, it is a difficult thing to judge--how successful we are, at the deepest levels, in being empathetic. And wisdom (not sheer intellectual brilliance)--from living the reflective life over a period of some decades can be helpful. Off topic but--I ascribe some of the lack of civility in our public discourse to the difficulty many people have with putting themselves in someone's else's shoes. Ultimately (sort of back on topic), it is a large part of what a legal education is about (in a formalistic way). The ability to look at a situation from someone else's (your opponent's) position/perspective. 

Off topic again--one "cure" is to make sure our children are avid readers. I firmly believe that encountering Black Beauty at precisely the right age gives a child a sympathy with animals that cannot be duplicated. But Anna Sewell's novel somewhat over sentimental novel (to contemporary adult sensibilities) is but one example. A child needs exposure to a wide variety of books that "twig" his or her heartstrings at just the right time in his or her emotional development and present the world from multiple (and sympathetic) perspectives. No, Eugene, I am most emphatically saying anything whatsoever about your childhood exposure to literature but merely speaking in a general sense. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

Cuimhnich air na daoine o'n d'thàinig thu
--- Remember the people from whom you came.
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Much as we all would love to read everyone else's articles . . .

I did read Prof. Newsom's Protestant Empire article, which has
indeed colored my view of what Prof. Newsom thinks.

More broadly, though, all of us has written very many articles;
I doubt that we can expect that others will take the time to read all or
even most of them.  Nonetheless, we need to be able to infer what others
think -- and as in most conversations, we draw this inference from what
we've heard others say in the conversation, not through a deep
familiarity with their published works.  It seems to me quite legitimate
(as well as necessary) to draw such inferences.

Conversely, if we think that there are items in our articles
that shed light on the analysis, it seems to me incumbent on us to
summarize or even quote portions of those items, rather than to expect
that others will read our works in their entirety.  Certainly pitching
one's own work on-list is quite legitimate -- but even if in some
theoretical sense we all ought to read everyone else's work, it seems
to me that insisting that others read one's work is going beyond what's
practical.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Newsom Michael
 Sent: Tuesday, November 08, 2005 12:25 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case
 
 
 I don't hold the views with which Eugene charges me.  I have 
 made my position abundantly clear in, now, three articles.  
 Eugene ought to read them before he decides what I do or do not think.
 
 -Original Message-
 From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
 Sent: Tuesday, November 08, 2005 1:58 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: FYI: An Interesting See You at the Pole Case
 
   Hmm -- I guess I had an unwarrantedly positive view of 
 Catholics' concern about the rights and interests of other 
 religious groups, and their openness to and amity with those 
 religious groups.  I still hope, though, that I am 
 descriptively correct, and that Prof. Newsom's views 
 represent the exception rather than the rule.
 
   Eugene
 
  -Original Message-
  From: [EMAIL PROTECTED]
  [mailto:[EMAIL PROTECTED] On Behalf Of 
  Newsom Michael
  Sent: Tuesday, November 08, 2005 8:09 AM
  To: Law  Religion issues for Law Academics
  Subject: RE: FYI: An Interesting See You at the Pole Case
  
  
  Yes
  
  -Original Message-
  From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
  Sent: Monday, November 07, 2005 3:17 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: FYI: An Interesting See You at the Pole Case
  
  Is that really the view that Catholics take, or should take?
  We aren't going to conduct masses in school.  Therefore, we 
  will oppose the Equal Access Act.  Never mind that it helps 
  other religions, including other Christians, conduct their 
  services, and worship God as they think is right.  Never mind 
  that it can help Catholics express their religious views.  
  Never mind that it helps Catholic students form groups in 
  which they can spend timing learning about Catholicism, 
  taking a Catholic approach to doing good works, and 
  reinforcing each other's faith.  I'd think that many 
  Catholics would (and should) care about much more than the 
  liturgy, and would (and should) care about more than just 
  their own denomination.  Am I mistaken?
  
  Eugene
  
  -Original Message-
  From: [EMAIL PROTECTED]
  [mailto:[EMAIL PROTECTED] On Behalf Of
  Newsom Michael
  Sent: Monday, November 07, 2005 12:11 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: FYI: An Interesting See You at the Pole Case
  
  
  He doesn't need to be told that none of the foregoing is
  tantamount to the liturgy, whereas under EAA evangelical 
  Protestants can have in-school prayer services that strongly 
  resemble their Sunday services. Catholics can't do that.
   
  
  
  
  From: [EMAIL PROTECTED]
  [mailto:[EMAIL PROTECTED] On Behalf Of
  Berg, Thomas C.
  Sent: Thursday, November 03, 2005 11:09 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: FYI: An Interesting See You at the Pole Case
   
  He should also be told that the EAA or constitutional rights
  of religious speech also guarantee Catholic students in 
  public schools the right to wear crosses or rosary necklaces 
  in school, to make a pro-Catholic or pro-Catholic-values 
  presentation in a class paper or presentation, and to meet 
  after school as a group of Catholic students, say, to plan a 
  mission project for the needy.  It would not be at all 
  surprising if those freedoms mattered to serious Catholic 
  families who, for financial or other reasons, use public 
  rather than Catholic schools.
   
  Tom Berg
  University of St. Thomas (Minnesota)
   
  
  
  
  From: Newsom Michael [mailto:[EMAIL PROTECTED]
  Sent: Thu 11/3/2005 5:19 PM
  To: Law  Religion issues for Law Academics
  Subject:

RE: Free Exercise Clause and government employees

2005-11-08 Thread Stephen R. Prescott, Esq.

I composed my response before the question of the extent and exact nature of the UW policy had been raised based on my (perhaps mistaken) reading of a news report. I accept Steve Sanders point that I need to know the specifics of the policy prior to declaring it to be religious discrimination. If anyone does know what the policy states and how it is applied I would appreciate being informed.
It still seems to me that there are First Amendment religion clause concerns (and certainly free speech). The RA is a state employee, albeit a temporary one at the lowest rung of the ladder. I certainly do think that during "office hours" the university could prohibit the RA from holding a Bible study or advising a student to seek the answer to his/her problems in the Bible. However, as I understand it, this involved an RA holding a Bible study in his dorm room. RAs are in some sense on call or on duty 24 hours per day, or perhaps all evening and night, and are expected to be available for emergencies. However, being available seems different than "office hours."
An analogy can be drawn to police officers. Many are expected to be available 24 hours a day for emergency calls. Surely, it would be a violation of an officer's freedom of religion to decree that he/her could not teach a Bible study because he or she might be called and thus was "on the job." [This is not conjectural, when I was a prosecutor the Captain in command of detectives of the local police force was expected to available 24/7 for emergencies. He taught Bible classes on Sunday morning, Sunday evening, and Wednesday evening at his church. I once called him during this time; I know that his detectives did often. Surely, he could not have been told that he could never teach a Bible class because he might be contacted by telephone or police radio for advice or instruction (very common) or even called to the station (rare but not unheard of) during the time he was teaching his Bible classes.]
Is this still not viewpoint discriminationwhich raises constitutional concerns under the religion and speech (not the focus of this forum) clauses of the First Amendment? Assuming that the RA is not leading the Bible class during designated work time, but during time he is free to watch football, play ping pong, etc., etc. is whether the RA leads the Bible study in his dorm room or over at the Student Union really significant? Conceding that his dorm room may in some sense be his "workplace," is the university's professed fear that when a student learns of the RA's beliefs he or she will fear being judged any different at a different location? Would not such student also fear being judged if the RA left each Sunday morning for church? Could the school order the employee to not reveal to any student that he or she went to church or led a Bible study at an
offcampus apartment? Even if the school forbids any controversial activities in the dorm room,it seems to me thatthe blanket prohibition on religious speech raises constitutional questions not obviated by the school's possible viewpoint discrimination in some others areas.
Steve Prescott

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RE: Bible study ban for RA's in UW-Eau Claire dorms

2005-11-08 Thread marty . lederman

Eugene:  What's the Free Speech Clause theory for why the state may not treat 
partisan political speech and religious speech in exactly the same manner?


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 can 
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---BeginMessage---
Title: Message



 Hmm --I had read a different account, but 
I'm happy to accept this one (at least for the purposes of our discussion, and 
possibly as the accurate one). In any case, though, exclusion of partisan 
events doesn't seem to me enough to eliminate the religious discrimination 
problem, just as it wasn't in Rosenberger. The Socialist Youth League 
might well be not partisan, in the sense that it promotes socialism as an ideal 
rather than as a party; try a Spartacus Youth League or an International 
A.N.S.W.E.R. chapter. So it seems to me that if religious groups are 
restricted but other ideological groups (except for partisan political events), 
we have religious discrimination; as I mentioned, Rosenberger so 
holds.

 More broadly, it seems to me that tolerance and diversity would 
include tolerance for a diversity of religious beliefs of the RAs as well as the 
students. If a student concludes that an RA is unapproachable because of 
his religion -- not because he's personally insulted you, or has told you that 
your religion is inferior (where government as employer is concerned, 
restrictions on rude advocacy of religion or ideology, or even advocacy that 
harshly criticizes other religions or ideologies,may well be proper), but 
simply because he's running a Bible study group -- is the student really showing 
a tolerance for diversity? If the school caters to the preferences of 
those students who feel uncomfortable talking to out-of-the-closet Christians, 
is the school really showing a tolerance for diversity?
 Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Steve SandersSent: Tuesday, November 08, 2005 
  12:42 PMTo: 'Law  Religion issues for Law 
  Academics'Subject: RE: Bible study ban for RA's in UW-Eau Claire 
  dorms
  
  I dont believe that labeling this 
  as a religious-discrimination claim is accurate. As one of the newspaper 
  accounts says: UW-Eau Claire spokesman Mike 
  Rindo said Thursday the university prohibits resident assistants from leading 
  Bible studies or other activities like 
  partisan political events (emphasis added) in the dorms. It doesn't 
  prohibit them from attending them. 
  
  So, no, RAs also could not 
  organize meetings of the Bush=Hitler Club of the Socialist Youth League. 
  Non-RA living in the dorms could do either of these, as well as lead Bible 
  studies. 
  
  I think Eugene is right that the 
  issue here is employment, not the state as landlord. The universitys 
  casting this as an approachability issue makes matters somewhat 
  tricky. I assume that, less euphemistically stated, the policy is aimed 
  at discouraging proselytizing by a state employee on state property during 
  working hours  something thats even more incompatible with an RAs role than 
  with the jobs of most state actors (because among other things, RA duties 
  usually include promoting tolerance, diversity, etc.). If its simply a 
  matter of the RAs personal identity, I of course agree that discrimination 
  would be inappropriate. The issue here would seem to turn on the nature 
  of the Bible study meetings (are they advertised, with residents 
  invited/encouraged to attend? held in his room or a public lounge? etc.), and 
  Im not sure the newspaper accounts give us enough facts to draw reliable 
  legal conclusions. 
  
  Steve
  
  
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Volokh, 
  EugeneSent: Tuesday, 
  November 08, 2005 10:06 AMTo: Law  Religion issues for Law 
  AcademicsSubject: RE: Bible study ban for RA's in 
  UW-Eau Claire dorms
  
  
   
  Hmm -- as I understand it, this isn't a simple religious accommodation claim, 
  in which an RA claims an exemption from a generally applicable rule (no 
  meetings of ideological groups in your dorm rooms). This is a claim that 
  the government is discriminating against religious groups; you can organize 
  meetings of the Bush=Hitler Club or the Socialist Youth League in your 
  dormroom, regardless of whether this causes some students to feel that you're 
  "unapproachable," but you can't organize Bible Study 
  meetings.
  
  
  
   Incidentally, to the 
  extent that the state is resting its argument on its power as landlord, that

RE: Free Exercise Clause and government employees

Good questions, Eugene.

I'm glad to hear that students are studying Talmud at UCLA. And I doubt
there is a problem with a faculty member joining them if they meet in an
open classroom as a Jewish Study Group.

But I have a problem with the faculty member organizing and leading a
Talmud study group in his office and inviting students from his class to
participate. (I also have a problem with a faculty member organizing and
leading a Republican Party study group in his office and inviting
students from his class to participate.)

If the former isn't an Establishment clause violation, I think it comes
close enough to be prohibited under the play in the joints analysis in
Locke.

As for the free exercise argument, if a prohibition against such study
groups did not violate the free speech clause, there may be a real
problem in holding that it violates the free exercise clause. We would
need to know whether a prohibition against other group meetings would
also be upheld under free speech clause, government as employer
doctrine. If meetings involving other subjects and viewpoints could also
be prohibited, can religious expressive activities receive greater
protection under the free exercise clause than secular expressive
activities receive under the free speech clause? 

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005 2:06 PM
To: Law  Religion issues for Law Academics
Subject: Free Exercise Clause and government employees

Alan asks some excellent points.  I should say that there are
sometimes Talmud study classes held during the day at UCLA law school; I
don't think they're taught by a faculty member, but if there were a
faculty member who wanted to teach them, I think that would be great,
and I think it would also be great if students were invited.

But let me ask a broader question; we've spoken so far about the
Free Speech Clause, but it seems to me the Free Exercise Clause is also
involved here.  Holding a Bible study class in the place where one
lives, it seems to me, is the exercise of religion.  A rule that
facially discriminates against such exercise of religion would thus
presumptively implicate the Free Exercise Clause.  See McDaniel v. Paty;
Lukumi Babalu.

Does Locke v. Davey rescue such a prohibition from invalidity?
Does the Free Exercise Clause somehow not apply to discrimination
against religious practices when the government is acting as employer?

Eugene

Alan Brownstein writes:

 What makes this a hard case is that RAs wear several 
 different hats  -- and it's not that easy to distinguish 
 between them because RAs don't have fixed office hours (at 
 least I don't think they do) and may be on the job for a good 
 part of the day  -- maybe all of it.
 
 So let's break this down. 
 
 1. Suppose an RA is on the job, at the office in a sense, and 
 available for counseling or other work related interactions 
 with dorm students from 9 to 5, Monday through Friday. Could 
 he be told not to hold bible study classes in his room during 
 this period? Would the University also have to prohibit him 
 from holding other kinds of meetings as well.
 
 2. Who gets invited to these classes? Does it matter whether 
 the RA invites students from the hall for which he is an RA.
 
 3. Can I hold Torah study classes in my office at the Law 
 School during the school day and invite my students to 
 attend? Can the Law School prohibit me from doing so?
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RE: Bible study ban for RA's in UW-Eau Claire dorms

Well, the Free Speech Clause precedent is Rosenberger; but I
realize you asked about the Free Speech Clause theory.  Rosenberger's
answer, which isn't bulletproof but which seems persuasive enough, is
that banning religious speech but allowing secular ideological speech
bars a certain class of viewpoints on various subjects; one can express
secular viewpoints about abortion but not religious ones, for instance.


Perhaps the same should be said of partisan political speech,
and Lehman v. City of Shaker Heights and Taxation With Representation v.
Regan (as explicated by Rosenberger) are therefore wrong.  But in any
event, the Court's view is that whatever the status of discrimination
against partisan political speech and in favor of other ideological
speech, discrimination against religious speech and in favor of most
other ideological speech is viewpoint discrimination.

 -Original Message-
 From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
 Sent: Tuesday, November 08, 2005 3:24 PM
 To: Law  Religion issues for Law Academics; Law  Religion 
 issues for Law Academics
 Cc: Volokh, Eugene
 Subject: RE: Bible study ban for RA's in UW-Eau Claire dorms
 
 
 Eugene:  What's the Free Speech Clause theory for why the 
 state may not treat partisan political speech and religious 
 speech in exactly the same manner?
 
 
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  private.
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 messages to others.
 
 
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RE: Bible study ban for RA's in UW-Eau Claire dorms


UW isn't banning a particular kind of speech ... defined by its religiosity
for all students, only for employees in a particular working/educational
context.  That's an important distinction we should not elide.

It's perhaps sloppy for the university to characterize its concern as
approachability.  It raises all the questions Eugene rightly suggests.  But
at the same time, I take it that we all appreciate the difference between a
judge who is publicly known as a conservative Christian, and a judge who sits
on the bench wearing his Ten Commandments robe.  As a matter of law, one could
legitimately object to the approachability of the latter but not the former
(unless perhaps you have Tom Delay's attorney working for you...).  The
distinction between personal conduct/belief and perceived state action is not
always an easy one, but it is not an unfamiliar one.

A student may decide not to discuss a problem with an RA for a host of reasons
-- religion, politics, personality -- that we can't and shouldn't elevate to
legal concerns.  But a student at a public university has the right to expect
that someone who is a cross between an advisor and a 24-hour cop will 
not apply

his religious perspectives to his official duties.  If the facts here (many of
which we don't know) would lead a reasonable student to the conclusion 
that the

RA would do so, the university has not overstepped its bounds.

While I respect those who would characterize this as a free-exercise claim, I
think it's properly analyzed under Pickering and public employee speech
doctrine, which courts regularly apply to religious speech.  See, e.g., Marchi
v. Bd. of Coop. Educ. Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999)
([W]hen government endeavors to police itself and its employees in an effort
to avoid transgressing Establishment Clause limits, it must be accorded some
leeway, even though the conduct it forbids might not inevitably be determined
to violate the Establishment Clause and the limitations it imposes might
restrict an individual's conduct that might well be protected by the Free
Exercise Clause if the individual were not acting as an agent of 
government.).


Steve

Quoting Volokh, Eugene [EMAIL PROTECTED]:


I may have been imprecise; my point is not that UW was trying to
ban all religious speech, only that it was expressly banning a
particular kind of speech (Bible study groups, or perhaps more generally
religious study meetings) defined by its religiosity.  Such
discrimination against subcategories of religious speech is
presu

mptively unconstitutional, it seems to me, even if it doesn't

discriminate against all religious speech.

But as to the university's fear about the student's fear, I'm
not sure I quite understand Steve's argument.  I agree that a student
won't be influenced by religious views that he never hears about.  But
say that a student hears that the RA is a minister in Church X, or is
prominently involved in Church X, or conducts a student group outside
his dorm room that relates to Church X.  Why would the student
distinguish that from the RA's conducting Church X Bible study in his
dorm room?  In either case, a student might equally say I think
enthusiastic members of Church X have certain biases, and that makes me
reluctant to ask those members for advice.  If the student, for
instance, is gay, and thinks that members of Church X strongly
disapprove of homosexuality, I take it that it's the RA's publicly known
membership in Church X that would make the student uncomfortable about
coming to the RA, regardless of how this membership becomes known.

Eugene


Steve Sanders writes:

I recognize that it makes this case seem much more troubling to
characterize the university policy as a blanket ban on all religious
speech in a person's private room.  But I'm afraid we're beginning to
argue scenarios somewhat different from what's been presented.
Eugene characterizes this as allowing the RA to engage in a wide range
of speech in his dorm room -- just not religious speech and the
university ... trying to govern what RAs say to their friends and
classmates -- even ones who aren't coming in for counseling -- at any
time during the day in their dorm rooms.  It would be helpful to know
the source for these categorical characterizations, which seem to me to
go beyond the facts in evidence.

My own reading of what's happening -- based, I admit, on only a sketchy
newspaper story combined with my own experience on a campus -- is that
the RA makes it public knowledge that he hosts Bible study in his room
or some common area of the dorm (it's unclear which), and probably
extends an invitation to those who'd like to participate.  (If these
were not openly advertised events, it's doubtful they would have come to
the University's attention as a matter of concern.)  So what we have is
not just any religious speech exchanged among students in the privacy of
someone's room, but rather, more precisely, an

Political Speech

2005-11-08 Thread Lawyer2974





In case you missed it on NPR this 
afternoon, here’s the segment on the sermon at All Saints Episcopal Church in 
Pasadena.
http://www.npr.org/templates/story/story.php?storyId=5000672 You’ll need Windows Media to 
listen.

Donald C. Clark, Jr.Counselor at LawBannockburn Lake 
Office Plaza I2333 Waukegan RoadSuite 160Bannockburn, Illinois 
60015(847) 236-0900 (telephone)(847) 236-0909 
(facsimiles)
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RE: Free Exercise Clause and government employees

I guess I think the regulation of government employee speech lies
somewhere in the middle between government funding of private exercises
of religion  and government regulation of private exercises of religion,
so a play in the joints analysis might be appropriate here.

But I certainly could be wrong about this.

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Tuesday, November 08, 2005 4:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise Clause and government employees

The broadest possible holding of Locke is that the prohibition on
government discriminating against private exercises of religion does not
apply to funding cases.  There is room for argument about whether it
applies to all funding caes.  It says nothing about regulation cases.
So Locke cannot answer the question about the RA.

The RA question is whether the RA's Bible study is somehow state action
because he is a state employee working out of his room on a 24-hour
basis, or whether even though it is private action, the his unusual job
gives the state a compelling interest in suppressing the Bible study.  I
am skeptical of both those theories, but however they are resolved,
Locke has nothing to say about them.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005 4:06 PM
To: Law  Religion issues for Law Academics
Subject: Free Exercise Clause and government employees

Alan asks some excellent points.  I should say that there are
sometimes Talmud study classes held during the day at UCLA law school; I
don't think they're taught by a faculty member, but if there were a
faculty member who wanted to teach them, I think that would be great,
and I think it would also be great if students were invited.

But let me ask a broader question; we've spoken so far about the
Free Speech Clause, but it seems to me the Free Exercise Clause is also
involved here.  Holding a Bible study class in the place where one
lives, it seems to me, is the exercise of religion.  A rule that
facially discriminates against such exercise of religion would thus
presumptively implicate the Free Exercise Clause.  See McDaniel v. Paty;
Lukumi Babalu.

Does Locke v. Davey rescue such a prohibition from invalidity?
Does the Free Exercise Clause somehow not apply to discrimination
against religious practices when the government is acting as employer?

Eugene

Alan Brownstein writes:

 What makes this a hard case is that RAs wear several different hats  
 -- and it's not that easy to distinguish between them because RAs 
 don't have fixed office hours (at least I don't think they do) and may

 be on the job for a good part of the day  -- maybe all of it.
 
 So let's break this down. 
 
 1. Suppose an RA is on the job, at the office in a sense, and 
 available for counseling or other work related interactions with dorm 
 students from 9 to 5, Monday through Friday. Could he be told not to 
 hold bible study classes in his room during this period? Would the 
 University also have to prohibit him from holding other kinds of 
 meetings as well.
 
 2. Who gets invited to these classes? Does it matter whether the RA 
 invites students from the hall for which he is an RA.
 
 3. Can I hold Torah study classes in my office at the Law School 
 during the school day and invite my students to attend? Can the Law 
 School prohibit me from doing so?
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RE: Free Exercise Clause and government employees

2005-11-08 Thread Joel Sogol

If I understand this right, some of it was discussed in Bishop v. Aronov,
926 F.2d 1066 (C.A.11 (Ala.)),1991.:

The University of Alabama through its Board of Trustees (the University)
appeals the district court's summary judgment and other orders in favor of
Assistant Professor Phillip A. Bishop (Dr. Bishop) enjoining the
University from curtailing his speech and religion rights in certain
respects. [FN1] We conclude that the action taken by the University did not
transgress constitutional guarantees and proscriptions, and we now reverse.

At the time, I was the Hillel director, and was involved in channeling some
of the complaints to the University.  It appeared that student grades were
impacted by attendance at the meetings at Bishop's, but I do not recall if
that was ever proven.  There was certainly concern about it on the part of
the students who did not attend. 

Joel L. Sogol
Attorney at Law
811 21st Avenue
Tuscaloosa, Alabama 35401
ph (205) 345-0966
fx (205) 345-0971
[EMAIL PROTECTED]
 
Ben Franklin observed that truth wins a fair fight -- which is why we have
evidence rules in U.S. courts.
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Tuesday, November 08, 2005 5:29 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise Clause and government employees

Good questions, Eugene.

I'm glad to hear that students are studying Talmud at UCLA. And I doubt
there is a problem with a faculty member joining them if they meet in an
open classroom as a Jewish Study Group.

But I have a problem with the faculty member organizing and leading a
Talmud study group in his office and inviting students from his class to
participate. (I also have a problem with a faculty member organizing and
leading a Republican Party study group in his office and inviting
students from his class to participate.)

If the former isn't an Establishment clause violation, I think it comes
close enough to be prohibited under the play in the joints analysis in
Locke.

As for the free exercise argument, if a prohibition against such study
groups did not violate the free speech clause, there may be a real
problem in holding that it violates the free exercise clause. We would
need to know whether a prohibition against other group meetings would
also be upheld under free speech clause, government as employer
doctrine. If meetings involving other subjects and viewpoints could also
be prohibited, can religious expressive activities receive greater
protection under the free exercise clause than secular expressive
activities receive under the free speech clause? 

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005 2:06 PM
To: Law  Religion issues for Law Academics
Subject: Free Exercise Clause and government employees

Alan asks some excellent points.  I should say that there are
sometimes Talmud study classes held during the day at UCLA law school; I
don't think they're taught by a faculty member, but if there were a
faculty member who wanted to teach them, I think that would be great,
and I think it would also be great if students were invited.

But let me ask a broader question; we've spoken so far about the
Free Speech Clause, but it seems to me the Free Exercise Clause is also
involved here.  Holding a Bible study class in the place where one
lives, it seems to me, is the exercise of religion.  A rule that
facially discriminates against such exercise of religion would thus
presumptively implicate the Free Exercise Clause.  See McDaniel v. Paty;
Lukumi Babalu.

Does Locke v. Davey rescue such a prohibition from invalidity?
Does the Free Exercise Clause somehow not apply to discrimination
against religious practices when the government is acting as employer?

Eugene

Alan Brownstein writes:

 What makes this a hard case is that RAs wear several 
 different hats  -- and it's not that easy to distinguish 
 between them because RAs don't have fixed office hours (at 
 least I don't think they do) and may be on the job for a good 
 part of the day  -- maybe all of it.
 
 So let's break this down. 
 
 1. Suppose an RA is on the job, at the office in a sense, and 
 available for counseling or other work related interactions 
 with dorm students from 9 to 5, Monday through Friday. Could 
 he be told not to hold bible study classes in his room during 
 this period? Would the University also have to prohibit him 
 from holding other kinds of meetings as well.
 
 2. Who gets invited to these classes? Does it matter whether 
 the RA invites students from the hall for which he is an RA.
 
 3. Can I hold Torah study classes in my office at the Law 
 School during the school day and invite my students to 
 attend? Can the Law School prohibit me from doing so?
___
To post, send message to

Re: Free Exercise Clause and government employees

2005-11-08 Thread Paul Finkelman





Alan: Doesn't it depend on what constitutes "studying Talmud." I
imagine one could study the Talmud as a legal commentary and not have
any interest in the religious aspects of it? Would it be ok if
faculty member said we will study Talmud, the Koran, some Christian
texts, and other religous texts to see how they relate to law? I am
not trying to be difficult here, but I envision the study group at UCLA
to be made up of people of different faiths interested in this complex
set of legal arguments. Indeed, if is studying Talmud for religious
purposes, then I am with you: it is an establishment clause violation.
Paul Finkelman


Alan Brownstein wrote:

  Good questions, Eugene.

I'm glad to hear that students are studying Talmud at UCLA. And I doubt
there is a problem with a faculty member joining them if they meet in an
open classroom as a Jewish Study Group.

But I have a problem with the faculty member organizing and leading a
Talmud study group in his office and inviting students from his class to
participate. (I also have a problem with a faculty member organizing and
leading a Republican Party study group in his office and inviting
students from his class to participate.)

If the former isn't an Establishment clause violation, I think it comes
close enough to be prohibited under the play in the joints analysis in
Locke.

As for the free exercise argument, if a prohibition against such study
groups did not violate the free speech clause, there may be a real
problem in holding that it violates the free exercise clause. We would
need to know whether a prohibition against other group meetings would
also be upheld under free speech clause, government as employer
doctrine. If meetings involving other subjects and viewpoints could also
be prohibited, can religious expressive activities receive greater
protection under the free exercise clause than secular expressive
activities receive under the free speech clause? 

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 08, 2005 2:06 PM
To: Law  Religion issues for Law Academics
Subject: Free Exercise Clause and government employees

	Alan asks some excellent points.  I should say that there are
sometimes Talmud study classes held during the day at UCLA law school; I
don't think they're taught by a faculty member, but if there were a
faculty member who wanted to teach them, I think that would be great,
and I think it would also be great if students were invited.

	But let me ask a broader question; we've spoken so far about the
Free Speech Clause, but it seems to me the Free Exercise Clause is also
involved here.  Holding a Bible study class in the place where one
lives, it seems to me, is the exercise of religion.  A rule that
facially discriminates against such exercise of religion would thus
presumptively implicate the Free Exercise Clause.  See McDaniel v. Paty;
Lukumi Babalu.

	Does Locke v. Davey rescue such a prohibition from invalidity?
Does the Free Exercise Clause somehow not apply to discrimination
against religious practices when the government is acting as employer?

	Eugene

Alan Brownstein writes:

  
  
What makes this a hard case is that RAs wear several 
different hats  -- and it's not that easy to distinguish 
between them because RAs don't have fixed office hours (at 
least I don't think they do) and may be on the job for a good 
part of the day  -- maybe all of it.

So let's break this down. 

1. Suppose an RA is on the job, at the office in a sense, and 
available for counseling or other work related interactions 
with dorm students from 9 to 5, Monday through Friday. Could 
he be told not to hold bible study classes in his room during 
this period? Would the University also have to prohibit him 
from holding other kinds of meetings as well.

2. Who gets invited to these classes? Does it matter whether 
the RA invites students from the hall for which he is an RA.

3. Can I hold Torah study classes in my office at the Law 
School during the school day and invite my students to 
attend? Can the Law School prohibit me from doing so?

  
  ___
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RE: Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism

2005-11-08 Thread Sisk, Gregory C.

The Mass is the liturgical heart of the Catholic faith, especially with the
Catholic belief that Jesus Christ is truly present in the Eucharist.  Thus,
if supporting the free speech and free exercise of believers in other
religions could bring about the twilight of the Catholic Mass, I would find
it difficult to reconcile a belief in civil liberties and my faith.  But I
simply cannot see how one could find the dots so as to connect my support
for a vigorous protection of free speech and a revitalized free exercise
doctrine with an abandonment or depreciation of the Catholic Mass.  And I am
comforted in this view by the knowledge that Pope Benedict and his
predecessor John Paul the Great, as well as the American episcopate,
likewise have seen great merit in strengthening positive relationships among
people of diverse faiths and in supporting a robust public regime of
religious freedom.

Nor can I understand how acting in solidarity with evangelical and other
traditionalist Protestant Christians (and for that matter with
non-Christians) to protect the life of the unborn weakens my Catholic faith
or threatens the survival of the Catholic Church.  My Catholic faith is not
so thread-bare that it might unravel through my interaction with others who
think differently or who might question some of my doctrinal beliefs.

Are there Catholics who have converted to Protestant Christianity?  Of
course.  Has this happened by reason of interfaith efforts to protect unborn
human life or traditional marriage or similar matters?  Has the alliance of
orthodox Catholics and traditionalist Protestants on certain issues of
public concern been associated with an exodus of persons from Catholicism
into Protestantism?  I find it hard to believe that the devout Catholics who
are drawn by their faith to participate in public religious witness are
peculiarly vulnerable to losing their faith.

But if conversion of Catholics to evangelical Christianity or other
Protestant beliefs were to occur, would the Catholic Church regard all such
persons as bound for the eternal fires of Hell?  Hardly.  While the Catholic
Church teaches that anyone who recognizes the truth of the Catholic faith
and despite that knowledge abandons the Church thereby has fallen out of
grace, that teaching applies only to the person who deliberately acts
contrary to his or her convictions.  While the Catholic Church believes that
the fullness of the Christian life may be experienced only within the Church
and that the Catholic Church provides the greatest hope of salvation, the
Church regards faithful Christians in Protestant denominations as remaining
in imperfect communion with the Catholic Church (whether they so regard
themselves or not). (And for that matter, Catholics do not regard our elder
brothers in faith, that is, Jews, or other sincere adherents to other
non-Christian religions as damned either.)  Some may regard the Catholic
viewpoint as arrogant or triumphalist, because the Catholic Church believes
it possesses the full deposit of the faith conveyed to her by Christ Jesus
himself, but it is far from a general condemnation to eternal damnation of
non-Catholics.

Frankly, if I were shown a vision that my beloved daughter would either
become a casual Catholic who attended Mass at Christmas and Easter and
otherwise ignored Church teaching and eschewed Catholic worship or instead
become a dynamic and engaged Protestant for whom faith would be a meaningful
part of her life, my only hesitation in choosing the Protestant alternative
for her would be the fond hope that if she remained Catholic she might
eventually be fully renewed in the Catholic faith (but of course that return
to Catholic devotion could occur even if she became a Protestant Christian
for a time, as witness my own wife).

In any event, and in my experience, cooperation between orthodox Catholics
and traditionalist Protestants is as likely (or more so) to result in
movement toward the Catholic Church as away from it.  Given the consistent
and heroic witness of the Catholic Church in favor of protection of unborn
human life, many former Protestant Christians have found themselves drawn
into the Catholic Church.  For that reason and many others, I am among them.

Greg Sisk


Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html


-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 4:01 PM
To: Law  Religion issues for Law Academics
Subject: Catholic views as to the relative harm of mass murder of the unborn
vs. some risk of some Catholics converting to Protestantism

I surely don't wish to trivialize the Mass, which is most
certainly very important for Catholics.  Saying that preventing mass
murder is worth running the risk of X hardly means that X is trivial.  I
also

RE: Free Exercise Clause and government employees

Alan:  I'm not sure what the rule would be as to government
selection of speakers in a lecture series.  But let me ask you this,
which doesn't involve the government's own speech:  We know that the
government may deny the charitable tax exemption to organizations that
engage in lobbying.  See Taxation With Representation v. Regan.  May the
government deny the charitable tax exemption to organizations that
engage in religious speech?

I assume the answer is no, because that would be discrimination
against a religious practice, and unconstitutional under the Free
Exercise Clause, see Lukumi and McDaniel.  Yet content-based (though
viewpoint-neutral) discrimination against political partisan activity is
constitutional under the Free Speech Clause, see Taxation With
Representation.  If I'm correct, then this means that religious speech
is at least sometimes protected against governmental discrimination
based on religiosity even where political speech is not protected
against government discrimination based on its content.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of Alan 
 Brownstein
 Sent: Tuesday, November 08, 2005 4:55 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Free Exercise Clause and government employees
 
 
 I'm not sure that it does, if we are talking about speech.
 
 For example, in Forbes the Court lists several government 
 decisions involving editorial discretion, e.g. picking 
 speakers for a lecture series etc. There are also many 
 decisions that are not listed that would involve similar 
 discretionary functions, e.g. acquiring books for a public 
 library. The court suggests that even viewpoint 
 discriminatory decisions in these contexts should not be 
 subject to rigorous review under the free speech clause.
 
 If the official choosing speakers for the lecture series, for 
 example, rejects several possible speakers because their 
 viewpoints are deemed unacceptable, speakers expressing 
 secular messages could not challenge this decision under the 
 free speech clause. Do you think a speaker expressing a 
 religious message would have a free exercise claim here, Eugene?
 
 Alan Brownstein
 
 
 
   Finally, Alan's Free Exercise Clause / Free Speech 
 Clause is an interesting one, but I wonder how far it would 
 go.  After all, if the Free Exercise Clause has an 
 antidiscrimination component, wouldn't it necessarily end up 
 protecting religious speech (as well as religious
 conduct) against discrimination based on religiosity, even in 
 situations where the Free Speech Clause doesn't protect 
 secular speech against discrimination based on its content?
 
   Eugene
 
  
 
 ___
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 see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
 
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 viewed as private.  Anyone can subscribe to the list and read 
 messages that are posted; people can read the Web archives; 
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 messages to others.
 
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Discrimination Between Religious and Political Speech

2005-11-08 Thread Marty Lederman




The condition in Regan was not 
content-based: The preferred tax status was eligible only if the 
organization agreed not to engage in "substantial lobbying," of any 
kind. The Court emphasized this fact: "[T]he veterans' organizations 
that qualify under 501(c)(19) are entitled to receive tax-deductible 
contributions regardless of the content of any speech they may use, including 
lobbying." 461 U.S. at 548.

Eugene, earlier you wrote that 
Rosenberger's distinction between religious and political speech wasn't 
"bulletproof." That's putting it mildly. The way the Court got 
around the problem in Rosenberger was to pretend that the exclusion of 
"political activities" there was not content-based, but was instead 
simplya prohibition on electioneering and lobbying of whatever 
content, partisan orotherwise (shades of Regan), whereas the 
exclusion of "religious activity" was viewpoint-based, in that it (allegedly) 
covered any activity that 
"primarily 
promotes or manifests a particular belie[f] in or about a deity or an ultimate 
reality." Indeed, the Court indicated that it was not giving more 
solicitude to religious viewpoints than to political viewpoints, and that it 
would have invalidated an exclusion of the latter, as well: "It is as objectionable to 
exclude both a theistic and an atheistic perspective on the debate as it is to 
exclude one, the other, or yet another political, economic, or 
social viewpoint." 

The problem in Rosenberger -- as Souter 
pointed out -- is that if UVA had excluded activities reflecting "primarily" a 
partisan viewpoint, that arguably would have been 
constitutional, per Greer and Lehman. Now, 
perhaps Greer and Lehman are wrongly decided insofar as they 
permit discrimination against political speech. My point is simply that, 
whatever the rules are for political speech, it should be 
constitutional for the state totreat religious and partisan speech 
exactlythe same -- indeed, I think a very strong case can be made that it 
violates the Establishment Clause,if not the Free Speech Clause, to treat 
religious speech more favorably than political speech, absent some very strong 
justification for the distinction.

That's a pretty good rule of thumb, I think -- in 
general (although there are exceptions, particularly in light of the 
Establishment Clause), the state can, and presumptively must, treat private 
religious and poltical speech equally.


- Original Message - 
From: "Volokh, Eugene" [EMAIL PROTECTED]
To: "Law  Religion issues for Law Academics" 
religionlaw@lists.ucla.edu
Sent: Tuesday, November 08, 2005 10:41 
PM
Subject: RE: Free Exercise Clause and government 
employees
Alan: I'm not sure what the rule would be as to 
governmentselection of speakers in a lecture series. But let me ask 
you this,which doesn't involve the government's own speech: We know 
that thegovernment may deny the charitable tax exemption to organizations 
thatengage in lobbying. See Taxation With Representation v. 
Regan. May thegovernment deny the charitable tax exemption to 
organizations thatengage in religious speech?I assume the answer is 
no, because that would be discriminationagainst a religious practice, and 
unconstitutional under the FreeExercise Clause, see Lukumi and 
McDaniel. Yet content-based (thoughviewpoint-neutral) discrimination 
against political partisan activity isconstitutional under the Free Speech 
Clause, see Taxation WithRepresentation. If I'm correct, then this 
means that religious speechis at least sometimes protected against 
governmental discriminationbased on religiosity even where political speech 
is not protectedagainst government discrimination based on its 
content.Eugene -Original Message- From: 
[EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of Alan  
Brownstein Sent: Tuesday, November 08, 2005 4:55 PM To: Law 
 Religion issues for Law Academics Subject: RE: Free Exercise 
Clause and government employees   I'm not sure that it 
does, if we are talking about speech.  For example, in Forbes 
the Court lists several government  decisions involving editorial 
discretion, e.g. picking  speakers for a lecture series etc. There are 
also many  decisions that are not listed that would involve similar 
 discretionary functions, e.g. acquiring books for a public  
library. The court suggests that even viewpoint  discriminatory 
decisions in these contexts should not be  subject to rigorous review 
under the free speech clause.  If the official choosing speakers 
for the lecture series, for  example, rejects several possible speakers 
because their  viewpoints are deemed unacceptable, speakers expressing 
 secular messages could not challenge this decision under the  
free speech clause. Do you think a speaker expressing a  religious 
message would have a free exercise claim here, Eugene?  Alan 
BrownsteinFinally, Alan's Free Exercise 
Clause / Free Speech  Clause is an interesting one, but I wonder how far 
it would

RE: FYI: An Interesting See You at the Pole Case