Re: FYI: An Interesting See You at the Pole Case
In a message dated 11/7/2005 11:56:33 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Well, they can't have an outside leader under the Equal Access Act. But after Good News Club v. Milford Central School, they can have an outside leader under the First Amendment if other clubs are permitted to have outside leaders. GNC v. MCS was an after hours use of facilities case, not relying on a right of access under the Equal Access Act. The EAA, of course, is a Spending Clause statute. How do you see the First Amendment principles in GNC impacting the restrictions on associational freedoms imposed by the EAA? Jim Henderson Senior Counsel ACLJ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 500 years
Well, I have only anecdotal evidence regarding proselytizing by Catholics. Although I am not Catholic, I sent my older daughter to parochial school from fifth through tenth grade. Her first week at Our Lady of Assumption she told me she wanted to convert so I took her to see the priest and, bless him, he handled the situation in the most admirable way. He said very respectfully and gravely to this little girl (and, incidentally, in the loveliest Irish accent), "Elizabeth, Holy Mother Church would be delighted to have you join us in the faith. But, Elizabeth, she must be sure that the person truly understands the step that he or she is taking. While you are a pupil at Our Lady of Assumption, you will learn about the Catholic faith. So here is what I want you to do. Keep coming to school here and study hard and obey your teachers. Talk to your mother and father about what you are learning and what you learn about our church. If, in two years, you still feel the same way, then come back to see me with your parents and we'll talk about it." These are his words virtually verbatim. Well, Elizabeth's interest in converting to Catholicism died away, but I appreciated how he handled her and I have never forgotten his words or the delicacy with which he handled the situation. He didn't turn her away. He didn't disparage her new found enthusiasm or wanting to embrace the faith of her classmates and teachers. He welcomed her without taking advantage of her vulnerability. Incidently, we had the grandest dinner table conversations, she tell me what she learned in religion class and I'd say, "Elizabeth that is really interesting I can see why Catholics believe that (because. . . .). Methodists believe. . . . Baptists believe. . . Jewish people believe. . . . Muslims believe. . . . In our church, we believe. . . ." I was always careful to be respectful of the position of the Catholic church regarding the subject and, indeed, of the beliefs of the other faith traditions I brought up during the course of the conversation. 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 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Censoring Narnia
Here is anexcerpt from anADF Press Release on an interesting case concerning an attempt byAmericans Unitedto 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 Comments 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, th! e 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 aboutprivate religious speech in public schools. And if there were such adiscussion, it would not be on the basis that some religion is betterthan no religion.The documents of Vatican II do defend freedom of conscience forall, which necessarily means that "evangelical Protestant teaching" willbe protected by law even if it tends to undermine Catholicism. And thereason given in those documents sounds in the dignity of the humanperson, not in institutional or theological advantage. The documents ofVatican II also recognize the possibility of salvation outside thechurch, and even outside Christianity, makig Catholic teaching far moretolerant than evangelical Protestant teaching.Michael, you seem to think that the persistence of serioustheological disagreements show ! that the conflict of the Reformation hasnot burned itself out. I agree that theological disagreements persist,but they no longer motivate much serious conflict. For more than 200years, from Henry VII to Culloden Moor in 1746, Englishmanintermittently killed each other in serious numbers over theProtestant-Catholic divide. Nineteenth-century Americans occasionalkilled each other in street violence, and occasionally destroyedchurches, over the Protestant-Catholic divide. In the 1920s, Oregonbanned private schools as a way of banning Catholic schools, and severalother states considered similar legislation. That's the kind ofconflict 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-Catholicismfaded away and became disreputable. Al Smith was hurt as a Presidentialcandidate by his Catholocism; Kennedy was hurt some but seems to have
been helped more. Kerry was not hurt by being Catholic; he was hurt bynot being Catholic enough. The current theological disagreements arenothing like the old style conflict. Contemporary anti-Catholicism isrooted not in Protestantism, but in the secular left, principallyorganized around issues of sexual morality, and secondarily on derisionof any belief in the supernatural.It may be that reduced conflict is a form of assimilation, andbad for Catholic doctrine in the long run. That's a different pointfrom whether social conflict actually persists.Finally, let me say that I agree that persistence and resistancepretty much describes a lot of evangelical Protestant proselytizing. Iresist too. But while there are some limits to that persistence, Iagree that proselytizing is at the very core of the First Amendment, andthat resistance, not censorship, is the appropriate response.I have left below the original question! to which I wasresponding, which is considerably broader than just childrenproselytizing in public schools.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341 (phone)512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of Newsom MichaelSent: Monday, November 07, 2005 2:40 PMTo: Law Religion issues for Law AcademicsSubject:
Political Activity:All Saintsw Church Pasadena
Also potentially relevant is Christian Echoes National Ministry, Inc. v. United States, 470 F. 2d 849 (10th Cir. 1972) Donald C. Clark, Jr.Counselor at LawBannockburn Lake Office Plaza I2333 Waukegan RoadSuite 160Bannockburn, Illinois 60015(847) 236-0900 (telephone)(847) 236-0909 (facsimiles) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Censoring Narnia
Seems a simple case of people gone nuts again. Almost as nuts as the Christians who are trying to ban the book because it is anti-Christian due to the use of magic and witches and such. I guess their theory is that allowing it to be read is establishing religion -- by exposing kids to something other than what they are taught at home. Steve On 11/8/05, Rick Duncan [EMAIL PROTECTED] 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 Comments 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: FYI: An Interesting See You at the Pole Case
At 12:47 PM 11/7/05 -0800, you wrote: 1. These people are strangers. If someone I knew began to proselytize their faith in conversations with me, I would be offended. I work with people of many different faiths on religious liberty matters and etc, etc. Not legal points, but I can not take this any longer. Throughout my life I have been subjected to attempts by classmates, co-workers and other associates to change my political views, ranging from Who ya voting for and extended browbeating for giving the wrong answer, to insisting at length that my views are both evil and stupid, that I am a Fascist and a racist, and on and on... But they are never berated for proselytizing. Why is it so reasonable to non-Christians to react violently to being told that their religion is wrong and to demand a gag rule, but unreasonable to react with anger to being told such things and demand that they be silenced? Or to being told that Christianity is anti-semitic, never mind that I am Jewish enough for any REAL anti-semites (as opposed to the ones my father kept seeing under the bed)? Why isn't this proseleytizing? No doubt this will elicit another string of that's DIFFERENT rationalizations. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Censoring Narnia
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Bible study ban for RA's in UW-Eau Claire dorms
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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
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
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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly)
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 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 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 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
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 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe,
The institution of marriage
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 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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 Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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
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 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: FYI: An Interesting See You at the Pole Case
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 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism
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
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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Candor
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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ---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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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
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) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read
RE: Free Exercise Clause and government employees
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
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? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the
RE: Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Discrimination Between Religious and Political Speech
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
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. But I do think that it fairly calls into question any easy distinction between the political, legal, and cultural on the one hand, and the theological on the other. And if this were not enough, I think that the list members who defend the right of evangelical Protestant schoolchildren to proselytize, however politely, make MY point that evangelical Protestants have no intention of