Lemon test not applicable in prisons?
I was quite surprised to read the following passage from a recent district court case, Salahuddin v. Perez, ___, 2006 WL 266574, at *9 (S.D.N.Y. Feb. 2, 2006): When presented with an Establishment Clause claim, a court must ask whether the challenged practice (1) has a secular purpose; (2) advances or inhibits religion in its principal or primary effect; and (3) fosters excessive entanglement between religion and the state. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). [B]ecause plaintiff is a prisoner challenging a Department of Corrections directive, the Lemon test is tempered by the test laid out by the Supreme Court in Turner v. Safley, which found that a prison regulation that impinges on an inmate's constitutional rights is nevertheless valid 'if it is reasonably related to legitimate penological interests. ' Warburton, 2 F.Supp.2d at 316 (citing Turner, 482 U.S. at 89). The Court need not engage in a determination of whether or not the decision to establish the program under Fishkill's chaplaincy and academic departments passed the Lemon test, because the undisputed facts of record clearly demonstrate that Defendants' decision to establish CMP/CHSP under the auspices of the chaplaincy and educational departments, rather than under the auspices of Plaintiff's proposed inmate organization, was reasonably related to legitimate penological interests within the meaning of the Turner standard. * * * Does anyone know whether this is a conventional understanding of Lemon's applicability in prisons? Or is it simply wrong? Thanks. Scott Idleman Marquette University ___ 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.
Religious marriages and the state
Hi all, Does anyone know of any cases, apart from People v. Greenleaf in New York, in which a clergyperson was prosecuted for officiating at a same-sex marriage? Thanks. Perry ___ 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.
Lemon test not applicable in prisons?
Fascinating! I do think that the Lemon test is tempered in the prison context, but not by virtue of Turner v. Safley. Rather, it seems to me that, to the extent that prisons (and, to a lesser extent, the armed forces) are closed off from free access to the religious element of civil society, the government can justifiably try, to some extent, to import or reproduce or sponsor a religious element into the prison, even if that requires more direct financial support and entanglement than could be justified in other contexts. Put another way, prisons and similar settings present contexts in which the government might be justified in recognizing a positive (as in the distinction between positive and negative freedoms) free exercise interest that mitigates, at least partially, against establishment clause concerns. The decision that Scott quoted is problematic in two respects. First, it wrongly relies on statist penological interests, rather than individual free exercise interests, as the counterweight to the establishment clause. This could very easily lead to a very different set of results. Second, the analysis in Turner is framed in terms of a balance (albeit one with a thumb on the scale) between the prison's interests and the liberty of an individual. For example, one of the considerations in the Turner calculus is whether there are alternative means of exercising the right that remain open to prison inmates. And another consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates. If the establishment clause is understood, however, as protecting structural values rather than individual rights, then the whole Turner analysis would have to be substantially recast before it could make sense as a way of measuring whether the state impermissibly crossed a tempered wall of separation (forgive the mixed metaphor). It's still fascinating, though. Perry ___ 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.
So what's the deal?
In 2002 Prez Bush proclaimed compassionate coercion: http://www.whitehouse.gov/news/releases/2002/02/20020212-2.html In 1991 Archie Brodsky of Harvard Medical School wrote: And it is one of the most blatant and pervasive violations of constitutional rights in the United States today. After all, even murderers on death row are not forced to pray. http://www.peele.net/lib/aaabuse.html So whats the deal? Why are the people on this list so reluctant to get into this issue? ___ 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.
From the list custodian RE: So what's the deal?
Folks: It might help to be a bit more explicit when posing such questions, rather than just relying on labeling (compassionate coercion), conclusory assertions, and links that people may not have much time to follow. What's the issue? Why is what's going on coercive? What are the obvious counterarguments as to why it wouldn't be coercive? Why is this a constitutional violation? Also, it's usually a mistake to ask why people on this list are reluctant to get involved in things. Some of them may well be involved; others may be spending their time elsewhere; others may be scholars more than people who get involved on the litigation side. Please don't assume that just because some issue is important, each academic who works in the general field is going to get involved in it. Please also remember that the list, though open to the public at large, is aimed at academic discussions of the law of government and religion. The more detail and thoughtful analysis one can include in the posts, the more helpful the posts will be. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Tommy Perkins Sent: Tuesday, February 07, 2006 6:44 PM To: religionlaw@lists.ucla.edu Subject: So what's the deal? In 2002 Prez Bush proclaimed compassionate coercion: http://www.whitehouse.gov/news/releases/2002/02/20020212-2.html In 1991 Archie Brodsky of Harvard Medical School wrote: And it is one of the most blatant and pervasive violations of constitutional rights in the United States today. After all, even murderers on death row are not forced to pray. http://www.peele.net/lib/aaabuse.html So what's the deal? Why are the people on this list so reluctant to get into this issue? ___ 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.
Denmark Cartoons and Blasphemy
I read with interest a CNNarticle on the continuing controversy over the Denmark Cartoons depicting the Prophet Mohammed. Of particular interest was the following:"The Danish government says it does not control what is in the country's newspapers and that courts will determine whether the newspaper that originally published the cartoons is guilty of blasphemy."http://www.cnn.com/2006/WORLD/asiapcf/02/07/cartoon.protests/index.htmlSometimes I think we takeit so for granted that "blasphemy" is notforbidden in the U.S. that to hear of a European countrywhichregulates _expression_ in this manner comes as a shock. Does anybodyknow the details of Danish "blasphemy" law?WillWill Esser --- Ad Majorem D! ei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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.
