Re: Teenagers The Spirit of Liberty
I am wondering whether the concern with majorities v. minorities is precise enough to capture what is going on here. On the one hand, graduation speeches about about who we are. They are, almost by definition, inclusive. On the other hand, who we are is contestable. A good deal of politics, contrary to much rational choice theory, is about getting people to define themselves as a people in certain ways. And every definition, privilieges some people at the expense of others. The mere decision to invite George Bush or Hiliary Clinton will offend some people (typically in the minority at that school district), as is the decision to invite the local athletic hero (offends those who think we place too much emphasis on sports). Moreover, the speaker must say something, that something cannot be fully neutral and will inevitably define some people as more in than others. The worst graduation speech I ever heard was by a friend, who in an effort to be uncontroversial offended a great many people, by blithely passing over numerous controversial issues, pretending no controversy existed. Nevertheless, I believe at the core of the first amendment is the principle that we is not defined by membership in a religion or religious belief in general. For this reason, why I would have no constitutional objection to a public school inviting Professor Duncan, as a national authority on religious freedom, to give a commencement address on why we are committed to his vision of religion freedom, I do not believe he or anyone else giving a speech sponsored by a public institution where they are expected to speak for all of us may lead of utter a sectarian prayer (and I do not believe there is any such thing as a non-sectarian prayer). Mark A. Graber ___ 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: How one school district found religion
A very interesting article that raises (one might say begs) the question of the extent to which it is constitutionally permissible for the state to encourage adherents of intolerant religions to be tolerant. The last paragraph of the article summarizes the school system's position nicely: Limiting deeply held beliefs to the private sphere breeds suspicion and tension. True religious liberty prevails not only when people feel comfortable expressing their beliefs, but also when they learn to discuss religious differences with civility and respect.Some on this list might complain that the whole concept of encouraging cross-religious dialogue under state sponsorship smacks of imperial Protestant theology. To the extent the exercise is about more than etiquette there might be something to this, though it might not be a persuasive objection. What should an adherent of Wahabism think about such a program, if the adherent buys into the theology represented in the school textbooks quoted here the other day? There certainly is an important state interest in promoting personal security. Is adopting a platform of enforced religious tolerance the least restrictive means of achieving that objective? From the article, it seems clear that participants in the program grew to see the similarities between religious belief systems. What if this outlook results in higher levels of intermarriage between religious adherents (prohibited in some religions) and a consequent decrease in adherents of some religions or a decrease in religious institutional participation? Bottom line, can the state adopt a policy that religious adherents have to get with the program of religious liberty, or are we now required on the one hand to literalize the First Amendment to prevent the adoption of any policy on the interaction between belief and action in secular society (to the extent anyone acknowledges the existence of such a thing), or on the other to deconstruct the First Amendment as an obsolete imposition of one religious point of view? Or are we allowed, with or without acknowledging that the First Amendment reflects a religious viewpoint, to say that its benefits for the continuity of the polity outweigh any burden placed on intolerant religionists? VanceOn 5/23/06, Joel Sogol [EMAIL PROTECTED] wrote: http://news.yahoo.com/s/usatoday/20060522/cm_usatoday/howoneschooldistrictfoundreligion Americans have never been in greater need of understanding religious differences and cultivating respect for religious freedom. The events of 9/11 transformed America's relationship with Muslims at home and abroad, a surge in immigration from Asia and Africa has increased the nation's religious diversity, and cultural conflicts between secularists and religious conservatives occur like clockwork. So you might think the last thing school districts would want is to bring religion into the classroom. Better to play it safe, and avoid lawsuits and angry parents by limiting any mention of faith to the private sphere. But school officials in Modesto, in Northern California, decided not to play it safe. In 2000, the religiously diverse community took a risk and, in an almost unheard-of undertaking for a public school district, offered a required course on world religions and religious liberty for ninth-graders. Joel L. Sogol Attorney at Law 811 21st Avenue Tuscaloosa, Alabama 35401 ph: (205) 345-0966 fx: (205) 345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. ___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. -- Vance R. KovenBoston, MA USA[EMAIL PROTECTED] ___ 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: Teenagers The Spirit of Liberty
The backstory: According to press accounts, each year the seniors at Russell County High School elect a class chaplain (this year, Megan Chapman) who gives the prayer at graduation. A student filed suit to stop the prayer. Hearing about the suit, the seniors (apparently following the advice of Liberty Counsel) re-elected Chapman the day before graduation to give a message. The judge was apparently not impressed by the switch and ordered school officials and the student not to include a prayer in the ceremony. That led to the protest by 200 seniors during the event. According to the news account in the Courier-Journal, Chapman did give a speech in which she spoke of her faith in God and urged her classmates to trust in God. In my view, the original arrangement (seniors elect a chaplain to give a prayer) is unconstitutional (Santa Fe). The alternative -- the selection of a student to give a message -- is the advice given by groups like Liberty Counsel (relying on Adler) -- and close to the advice given in the U.S. Dept. of Education guidelines (2003). The fact that the students (perhaps encouraged by school officials) tried to change from prayer to message at the last minute undermines the charge by Chapman/Liberty Counsel that her speech rights were violated by the judge's order. It seems to me that the protest by the 200 students (and the standing ovation from the crowd) was all about the what they believe to be the right of the majority to impose prayer (their prayer) on everyone else at the graduation. It is not enough that Chapman was free to express her personal religious views in her speech or that they could have as much prayer as they wish at a privately-sponsored baccalaureate. They want the kind of Christian prayer that has been offered at graduation in Russell County for years. This conflict isn't about free speech or even a 60-second prayer; it's about who gets to define what kind of nation we are. Charles Haynes First Amendment Center From: [EMAIL PROTECTED] on behalf of Kurt Lash Sent: Tue 5/23/2006 10:14 PM To: Law Religion issues for Law Academics Subject: Re: Teenagers The Spirit of Liberty I think that the denigration of Rick and his original post has gone a bit overboard. As I understand the facts (and I could be wrong), the students voted on a graduation speaker and that speaker planned on including a prayer as part of her speech. In an injunction based on a suit filed only days before, the judge prohibited the student from praying. Apparently prayers were a traditional part of the ceremony, but it's not clear how they took place. But taking the facts as known, I am not at all convinced that the Court's establishment clause jurisprudence forbids all prayers by invited private speakers (including students) at school events. Could she have been held in contempt if she declared God have mercy on the souls of those killed in Iraq? It seems to me that when the government opens a space for private speech, forbiding private speakers from engaging in religion talk raises serious First Amendment issues. It begs the question to assert tyranny of the majority. As I tell my students, the only thing worse than a tyranical majority is a tyrannical minority--or a single tyrant. The issue is whether a supermajority of the people, at a moment in time, enshrined a principle in our constitution which justifies the injunction in this case. Unless I am wrong about the facts, I am not at all convinced that it does. The students' action/protest not only accepted (for the moment) the court's ruling (no lynch mob here), I thougt its symbolism was quite potent: The courts cannot silence our private religious speech. They may have acted from a religious/majoritarian impulse, but the constitutional principle involved protects both the majority and minority from unwarranted government censorship--whether by courts or by school boards, and whether the speech is secular or religious. Kurt Lash Loyola Law School (L.A.) PS: There is, of course, a serious issue regarding the degree to which members of an an audience may prevent a speaker from speaking, or a ceremony from taking place, through their disruptive protests--whether religious or secular based. This issue, however, has nothing to do with the establishment issues raised by those responding to Rick's post. Content-type: multipart/alternative; boundary=Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-transfer-encoding: 8BIT --Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: 8BIT I see from earlier news stories that the student first asked the principal to not schedule prayers at the graduation, and the principal refused. The prayers objected to originally were clearly out of line under current case law. School authorities shouldn't be in the business of telling kids when to pray -- and is that not exactly what
RE: Teenagers The Spirit of Liberty
"This conflict isn't about "free speech" or even a 60-second prayer; it's about who gets to define what kind of nation we are." Charles HaynesFirst Amendment CenterI agree with this insight. I don't think this issue is about the majority of students bullying a classmate as some have suggested. I think it is about students taking a stand against a particular view of America, a view that wishes to impose a strictly secular establishment in the schools. I guess they (the students who took a stand and their parents who applauded)would say that it is better for the people to define the role of religion in the schools than for the ACLU and federal courts to do so.I personally am not one who wishes to use public schools to impose religion on dissenters. But I am also strongly imposed to the public schools becoming an engine of secularization, a place where religious children need to wear a secular mask when taking part in school activities.Again, school choice is the solution to this problem of "defining" what kind of nation we are and what kind of schools we attend. It does not have to be either religious schools and prayer or secular schools and no prayer. It can be both. The one for those who value religion as a necessary part of the education of children; and the other for those who don't. But if we have a government school monopoly, and if someone tries to impose a strictly secular environment within that monopoly, then I will applaud students who stand up and say "we will not be silenced;we are going to participate in defining what kind of nation we are." These kids are heroes in my book. Their parents should be proud of them.Rick DuncanRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Sneak preview the all-new Yahoo.com. It's not radically different. Just radically better. ___ 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.
Bullying of Christian Students in Public Schools
Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment.Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates.___ 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: Teenagers The Spirit of Liberty
Rick Duncan wrote: "This conflict isn't about "free speech" or even a 60-second prayer; it's about who gets to define what kind of nation we are." Charles Haynes First Amendment Center I agree with this insight. I don't think this issue is about the majority of students bullying a classmate as some have suggested. Do you really think that booing the Muslim student who objected to the prayer is *not* bullying? If so, perhaps you have a very different definition of booing than I do. I think it is about students taking a stand against a particular view of America, a view that wishes to impose a strictly secular establishment in the schools. I guess they (the students who took a stand and their parents who applauded)would say that it is better for the people to define the role of religion in the schools than for the ACLU and federal courts to do so. That's an absolutely absurd position. By that position, if "the people" decided to mandate that all students pray 5 times a day toward Mecca, the ACLU and federal courts could have no say in it. It's one thing to argue that this particular type of prayer does not violate the establishment clause (I think most of us agree that it's a close call, given the precedents); it's quite another to think that "the people" should get to decide whatever role religion will play in public schools. That is a pure recipe for majoritarian tyranny. I personally am not one who wishes to use public schools to impose religion on dissenters. But I am also strongly imposed to the public schools becoming an engine of secularization, a place where religious children need to wear a secular mask when taking part in school activities. And you honestly think that if students cannot force other students to sit through their religious exercises, then schools are "engines of secularization"? By that logic, then, could not a Muslim argue that allowing others to force them to sit through Christian prayers makes the schools an "engine of Christianization"? Again, school choice is the solution to this problem of "defining" what kind of nation we are and what kind of schools we attend. It does not have to be either religious schools and prayer or secular schools and no prayer. It can be both. The one for those who value religion as a necessary part of the education of children; and the other for those who don't. I agree with this, but we still must decide what goes on in public schools right now as they exist. And since A) public schools include a diverse student body of a multitude of religious viewpoints; B) religious exercises have no role to play in the educational mission of the school; and C) allowing any one religion to have access to force other religions to sit through their religious exercises during school activities can only result in alienation and conflict; it is clear to me that the best policy is simply to keep religion out of school activities altogether. But if we have a government school monopoly, and if someone tries to impose a strictly secular environment within that monopoly, then I will applaud students who stand up and say "we will not be silenced;we are going to participate in defining what kind of nation we are." These kids are heroes in my book. Their parents should be proud of them. But I doubt you would feel that way if the facts were turned around only slightly. Let's take a hypothetical. Let's say in the middle of the student's prayer, a group of Muslim students stood up and began to loudly recite an Islamic prayer in Arabic. Would you still applaud those students for standing up and saying "we will not be silenced, we are going to participate in defining what kind of nation we are"? I highly doubt it. I think you only applaud this because your views sit squarely with the majority, which in my mind means that it does amount to bullying - we have the numbers, so you're just going to have to sit there and take it while we carry out our religious exercises during a school event where religion is completely irrelevant to the process of education. If you were in the minority, I suspect your opinion would be dramatically different. 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: Teenagers The Spirit of Liberty
With all due respect, the prayer was hardly private. -Original Message- From: Kurt Lash [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 23, 2006 10:14 PM To: Law Religion issues for Law Academics Subject: Re: Teenagers The Spirit of Liberty I think that the denigration of Rick and his original post has gone a bit overboard. As I understand the facts (and I could be wrong), the students voted on a graduation speaker and that speaker planned on including a prayer as part of her speech. In an injunction based on a suit filed only days before, the judge prohibited the student from praying. Apparently prayers were a traditional part of the ceremony, but it's not clear how they took place. But taking the facts as known, I am not at all convinced that the Court's establishment clause jurisprudence forbids all prayers by invited private speakers (including students) at school events. Could she have been held in contempt if she declared God have mercy on the souls of those killed in Iraq? It seems to me that when the government opens a space for private speech, forbiding private speakers from engaging in religion talk raises serious First Amendment issues. It begs the question to assert tyranny of the majority. As I tell my students, the only thing worse than a tyranical majority is a tyrannical minority--or a single tyrant. The issue is whether a supermajority of the people, at a moment in time, enshrined a principle in our constitution which justifies the injunction in this case. Unless I am wrong about the facts, I am not at all convinced that it does. The students' action/protest not only accepted (for the moment) the court's ruling (no lynch mob here), I thougt its symbolism was quite potent: The courts cannot silence our private religious speech. They may have acted from a religious/majoritarian impulse, but the constitutional principle involved protects both the majority and minority from unwarranted government censorship--whether by courts or by school boards, and whether the speech is secular or religious. Kurt Lash Loyola Law School (L.A.) PS: There is, of course, a serious issue regarding the degree to which members of an an audience may prevent a speaker from speaking, or a ceremony from taking place, through their disruptive protests--whether religious or secular based. This issue, however, has nothing to do with the establishment issues raised by those responding to Rick's post. Content-type: multipart/alternative; boundary=Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-transfer-encoding: 8BIT --Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: 8BIT I see from earlier news stories that the student first asked the principal to not schedule prayers at the graduation, and the principal refused. The prayers objected to originally were clearly out of line under current case law. School authorities shouldn't be in the business of telling kids when to pray -- and is that not exactly what scheduling prayers is? Rick, is there any reason this group shouldn't be compared to the lynch mob that goes after a suspected horse thief? The fellow may be guilty, and a court can determine that later -- but lynching is illegal, and shouldn't we trust to the courts to arrive at a near-just conclusion? I graduated from a high school where I was one of 2 students -- about 1% of the graduating class -- not of the predominant religion. I understand exactly what the plaintiff in the case complained about. It's scary that a ruling from a federal court is not enough to preserve religious rights against a mob. I'm deeply troubled by that. Ed Darrell Dallas Rick Duncan [EMAIL PROTECTED] wrote: Here is the way I look at it. One poor kid tried to censor his classmates with the help of a powerful legal ally, the ACLU. His classmates did not like being silenced by the poor kid. So they made a stand--not to ostracize the poor kid, but to stand up for their liberty of religious expression at their own commencement. They did not violate the spirit of the EC. The spirit of the EC deals with government coercion and religion. The true spirit of the Religion Clause is on the side of the students who would not be cowed and silenced by the ACLU and the unelected judiciary. I am proud of these kids. I hope their spirit spreads to many other schools and impacts many other commencements. There is no need to ask school officials to sponsor prayer. All students need to do is pray: without asking for endorsement or permission from government authorities. Cheers, Rick Duncan [EMAIL PROTECTED] wrote: Some info from the involved ACLU affiliate is at this link: http://www.aclu-ky.org/news.html#Grad%20Prayer That info includes the following paragraph: School-sponsored prayer constitutes a symbolic and tangible ‘preference… given by
Re: Teenagers The Spirit of Liberty
So, can we expect this "protest" to become a tradition at this and other schools? And what will school officials do when muslim students decide to sing the call to prayer during the ceremony? Or when atheists decide they need to be heard? On what grounds will the school threaten to stifle any spontaneous speech _expression_ if they refuse to curtail this? it's not about religious _expression_, this incident, it's about schools having the right and responsibility to maintain discipline and order ton conduct their activities--the same reason that restricting a student from disrupting algebra class by standing up and reciting a prayer aloud isn't a violation of his constitutional rights.Surely, Rick, you don't suggest the school system begin condoning certain religious acts of protest but not others? I'm sure the school had policies and punishments in place to address this kind of disruption. They should not pick and choose when to apply those regulations based on their level of agreement with the religious speech in question. And, seriously, you think a school system should sanction a process in which a majority religion gets to elect a graduation "chaplain" for the purposes of giving the graduation prayer??As for how you restrict these kinds of activities, ask the valedictorian in Gallatin, TN... he insisted on being heard at his graduation ceremony, which did not allow for a valedictorian speech. He now faces disorderly conduct charges and is having his diploma withheld. Why is this case any different?http://www.tennessean.com/apps/pbcs.dll/article?AID=/20060524/NEWS04/605240379On May 24, 2006, at 12:40 PM, Rick Duncan wrote:"This conflict isn't about "free speech" or even a 60-second prayer; it's about who gets to define what kind of nation we are." Charles HaynesFirst Amendment Center I agree with this insight. I don't think this issue is about the majority of students bullying a classmate as some have suggested. I think it is about students taking a stand against a particular view of America, a view that wishes to impose a strictly secular establishment in the schools. I guess they (the students who took a stand and their parents who applauded) would say that it is better for the people to define the role of religion in the schools than for the ACLU and federal courts to do so. I personally am not one who wishes to use public schools to impose religion on dissenters. But I am also strongly imposed to the public schools becoming an engine of secularization, a place where religious children need to wear a secular mask when taking part in school activities. Again, school choice is the solution to this problem of "defining" what kind of nation we are and what kind of schools we attend. It does not have to be either religious schools and prayer or secular schools and no prayer. It can be both. The one for those who value religion as a necessary part of the education of children; and the other for those who don't. But if we have a government school monopoly, and if someone tries to impose a strictly secular environment within that monopoly, then I will applaud students who stand up and say "we will not be silenced; we are going to participate in defining what kind of nation we are." These kids are heroes in my book. Their parents should be proud of them. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. Sneak preview the all-new Yahoo.com. It's not radically different. Just radically better. ___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: How one school district found religion
Cross-religious dialogue, without some understanding of its context or setting, can hardly be the measure or substance of toleration. Actions also help shape and define toleration. They are at least as important as words are. Of course, in some settings, words take on action-like qualities. (Context is relevant in determining whether such dialogue is nothing more than an effort to advance an imperialist Protestant agenda. There is precious little evidence that teaching about religion can be separated from teaching religion. Curriculum design, teacher training and competence, institutional and community pressures, including Protestant or other majoritarian religious -- imperialism, can all work to change a course about religion into a course that teaches religion. That is precisely why such courses in elementary and secondary public schools are an extremely bad idea. (There are other objections largely having to do with coverage what religions are or are not included in the courses and what aspects of religious belief, practice, theology, text, ritual and ceremony are or are not to be included in the courses.) Conversations about religious diversity and tolerance need to take place more rather than less often. But such conversations do not require discussions of religious belief, practice, theology, text, ritual and ceremony. That said, even these discussions can be subverted, depending, of course, on the pressures brought to bear on the shape and character of those discussions. The Religion Clauses contain a theory of toleration. It is just not clear what the boundaries of it might be. There is no doubt that the Clauses require intra-Protestant toleration. The struggle, since the Founding, has been over whether the Clauses require toleration of non Protestants, Christians or not. In light of the text of the Clauses and the struggles of religious outsiders to be included within their protection, one could fairly read the Clauses as favoring, if not mandating tolerance of [some] non Protestants over intolerance. Teaching toleration of those religions falling within the protection of the Clauses, therefore, is hardly unconstitutional. (Some might say that all religions are protected. I wonder. But that is another conversation altogether.) I dont think that the existence of tolerated intolerant religions presents a constitutional problem. Interestingly the belief-action distinction actually serves some useful purpose here. Adherents of tolerated intolerant religions can believe anything that they want to. But their actions are subject to constitutional norms regarding tolerance, and, hence, are subject to regulation. From: Vance R. Koven [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 24, 2006 8:36 AM To: Law Religion issues for Law Academics Subject: Re: How one school district found religion A very interesting article that raises (one might say begs) the question of the extent to which it is constitutionally permissible for the state to encourage adherents of intolerant religions to be tolerant. The last paragraph of the article summarizes the school system's position nicely: Limiting deeply held beliefs to the private sphere breeds suspicion and tension. True religious liberty prevails not only when people feel comfortable expressing their beliefs, but also when they learn to discuss religious differences with civility and respect. Some on this list might complain that the whole concept of encouraging cross-religious dialogue under state sponsorship smacks of imperial Protestant theology. To the extent the exercise is about more than etiquette there might be something to this, though it might not be a persuasive objection. What should an adherent of Wahabism think about such a program, if the adherent buys into the theology represented in the school textbooks quoted here the other day? There certainly is an important state interest in promoting personal security. Is adopting a platform of enforced religious tolerance the least restrictive means of achieving that objective? From the article, it seems clear that participants in the program grew to see the similarities between religious belief systems. What if this outlook results in higher levels of intermarriage between religious adherents (prohibited in some religions) and a consequent decrease in adherents of some religions or a decrease in religious institutional participation? Bottom line, can the state adopt a policy that religious adherents have to get with the program of religious liberty, or are we now required on the one hand to literalize the First Amendment to prevent the adoption of any policy on the interaction between belief and action in secular society (to the extent anyone acknowledges the existence of such a thing), or on the other to deconstruct the First Amendment as an obsolete imposition of one religious point of view? Or are we allowed, with or without acknowledging that
RE: Bullying of Christian Students in Public Schools
The Ninth Circuit recently held that schools could ban t-shirts calling homosexuality as in because such shirts impinged on the rights of gay students to be secure in school thus allegedly interfering with their rights an exception to Tinkers speech protective rule., Harper v. Poway School District .The matter Rick describes raises another Tinker problem: whether school officials may show disruption by pointing to the reaction of other students without as demonstration that they (school officials ) made any effort to protect the speakers. Most courts seem to allow hecklers vetoes in school speech cases without such a showing.. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Wednesday, May 24, 2006 1:49 PM To: Law Religion issues for Law Academics Subject: Bullying of Christian Students in Public Schools Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006 Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment. Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst.-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates. ___ To post, send message to Religionlaw@lists.ucla.edu To
Re: Bullying of Christian Students in Public Schools
Obviously, the bullying is outrageous, regardless. The suppression of speech issue cannot be determined until we know what the school policy is (i.e., no Christian messages looks very different than 'no t-shirts containing any words). MAG [EMAIL PROTECTED] 05/24/06 1:49 PM Did someone mention bullying of students in the government schools. Here is a case of real bullying taking place in the Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006 Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CA*Students and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release * May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment. Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didn't see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates. ___ 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: Bullying of Christian Students in Public Schools
Let me make sure I have this right -- because some students on one "side" engage in bullying based on views and _expression_ of those views, it is ok for those on the other side to do the same.Right, Rick?Because civil disobedience was required to end racial segregation, disobedience of court orders is always ok.Do I have that right?Of course not.Of course there is bullying in schools still today. And it is on all sorts of bases -- anti gay, pro-gay, race, girls sports, smart kids, fat kids, small kids, clumsy kids, poor kids, etc.I think it poor law and worse morality to argue sauce for the goose on this one.SteveOn May 24, 2006, at 1:49 PM, Rick Duncan wrote:Did someone mention bullying of students in the government schools. Here is a case of real bullying taking place in the Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CA—Students and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, “Homosexuality is sin. Jesus can set you free.” (For further details, see PJI press release – May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment.Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get “beat up” after school. Another pupil described how they went into the cafeteria wearing their shirts. “While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us,” said Lyana Tagintsev. “I felt unprotected,” she said. Taginstev told the board that “the school is suppose to protect us like any other students, but I didn’t see them try to do anything.” Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. “We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards,” Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that “this kind of speech suppression makes me wonder if American schools follow the US Constitution.” “Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well,” Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. “My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville,” said Kevin Snider who is the PJI attorney representing the students from both districts. “These students are pleading with the school boards to respect the rights of speech and to provide safe schools,” stated Brad Dacus, PJI president. “We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence.” The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates.___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
RE: Bullying of Christian Students in Public Schools
How is toleration advanced if a group of intolerant students is allowed to bully and harass gay and lesbian students? This question is especially acute in light of the sorry history of harassment and worse of gay and lesbian people. And it would be disingenuous in the extreme to argue that all that the Slavic Christians were doing was expressing their faith. In this context their words took on an action-like quality and that warrants their regulation or outright suppression in the public schools. I do not condone threats leveled against these Slavic Christians. Those are clearly wrong. There are better ways to confront intolerant bullies. From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 24, 2006 1:49 PM To: Law Religion issues for Law Academics Subject: Bullying of Christian Students in Public Schools Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006 Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment. Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst.-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
Re: Bullying of Christian Students in Public Schools
Rick Duncan wrote: Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): I agree with you, these students have had their rights violated. I've written about this case and others that happened around the Day of Silence and supported those kids who wore shirts like this. But that has nothing to do with your argument in the prayer situation. Are you seriously going to say "well christians were bullied in california by the school, so it's okay for them to bully someone else in Kentucky"? The two situations have nothing to do with each other. Ed Brayton 05.23.2006 Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment. Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates. ___ 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: Judge Becker Posthumously Creates Circuit Split on MinisterialException
For a case reaching a similar conclusion, I think, see Bollard v. California Province, Society of Jesus.,196 F.3d 940 (1999) Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Wednesday, May 24, 2006 4:33 PM To: Law Religion issues for Law Academics; CONLAWPROF@lists.ucla.edu Cc: [EMAIL PROTECTED] Subject: Judge Becker Posthumously Creates Circuit Split on MinisterialException The U.S. Court of Appeals for the Third Circuit today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss a Title VII sex discrimination claim brought by the chaplain of a Chatolic college who was constructively dismissed. http://www.ca3.uscourts.gov/opinarch/051222p.pdf The majority opinion was written by Judge Edward Becker, who died last Friday, and was joined by Judge Nygaard (both Republican appointees). Judge Smith dissented. The decision raises a host of interesting and important questions. 1. For a start, can a dead judge's vote count? (See Howard Bashman's query here: http://howappealing.law.com/052406.html#014771.) If this were the Supreme Court, the answer would be no, I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when the case is submitted) and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority. What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible. Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith cure the problem by formally shifting his vote to reverse, out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his dissent? 2. Part of the Becker opinion suggests that the SCOTUS's religious-organization autonomy cases are solely about preventing courts from having to adjudicate questions of religious doctrine, religious belief and church regulation, and that where a case can be decided without such adjudication of religious questions, generally applicable laws can and should be applied to churches and religious organizations. See pages 37-38 (citing Jones and Smith). This would be a truly radical doctrinal decision: Until now, no court has held that Smith applies to ministerial decisions. But the court does not follow through on its logic. At several places in the opinion (e.g., pages 32, 47, 51), Becker acknowledges that if a Church does discriminate on the basis of sex as a matter of religious doctrine in ministerial decisions (e.g., in deciding that only men may be priests), it will have a constitutional defense to title VII liability, even though title VII is a generally applicable law and even though in such a case a Court would not necessarily have to resolve any questions of religious doctrine, religious belief and church regulation. 3. The case is decided on a motion to dismiss (i.e., the court of appeals simply permits the case to go forward to discovery and possible trial). At this stage, the college has not asserted any religious basis for dismissing the plaintiff. Judge Becker is careful to explain that if the college does allege a religious basis for its decisions, the case would have to proceed without the plaintiff being able to question the bona fides, or legitimacy, of the college's religious beliefs or doctrines --- which might well result in a victory for the defendants . . .but not necessarily. Here's the key passage describing what would happen in such a case: Gannon may offer an explanation for Petruskas demotion that is grounded in religious principles or internal church regulations. The mere assertion of either type of explanation would not necessarily require the dismissal of Petruskas claims. . . . Gannon might argue that Petruska was demoted for reasons independent of gender discrimination. For example, Gannon might assert that Petruska
Re: Third Circuit departs from majority
Third Circuit is wrong. This has to be a categorical exception. Like certain kinds of immunity based on status -- e.g., a judge.Supreme Court will take it.On May 24, 2006, at 4:22 PM, Volokh, Eugene wrote: In today's Petruska v. Gannon University,http://www.ca3.uscourts.gov/opinarch/051222p.pdf, the Third Circuit held(2-1, per the late Judge Becker), that the ministerial exception toantidiscrimination law applies only when the religious employer'sactions are motivated by the employer's religious beliefs. Thus, if achurch fires (or refuses to hire) a minister based on the minister'srace or sex, the church is *not* immune from an antidiscriminationlawsuit unless it can show that the race or sex discrimination wasreligiously motivated, as opposed to the product of nonreligiousprejudices on the decisionmaker's part. The other cases that have recognized a ministerial exceptionhave generally (as best I can tell, unanimously, if one counts thosecases that have confronted the issue) held that church decisions aboutministers' employment are *categorically* immune, with no need for adetermination of whether the church's motive was religious. The ThirdCircuit thus departs from the dominant rule for ministerial exceptioncases, and follows a path that's more common in other religious freedom(whether pre-Smith Free Exercise or RFRA) cases, where the claimant mustshow a sincerely held religious belief animating his actions. Any thoughts on (a) whether the Third Circuit was right, and (b)whether the Supreme Court is likely to grant cert to resolve the newlycreated circuit split? Eugene___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. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires."Walter Lippmann ___ 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: Judge Becker Posthumously Creates Circuit Split onMinisterialException
My recollection is that the NinthCircuit in Bollard drew a different distinction, allowing an action for damages (but not reinstatement) for harassment (but not for hiring, firing, or other job actions). Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc SternSent: Wednesday, May 24, 2006 3:42 PMTo: Law Religion issues for Law AcademicsSubject: RE: Judge Becker Posthumously Creates Circuit Split onMinisterialException For a case reaching a similar conclusion, I think, see Bollard v. California Province, Society of Jesus.,196 F.3d 940 (1999) Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Wednesday, May 24, 2006 4:33 PMTo: Law Religion issues for Law Academics; CONLAWPROF@lists.ucla.eduCc: [EMAIL PROTECTED]Subject: Judge Becker Posthumously Creates Circuit Split on MinisterialException The U.S. Court of Appeals for the Third Circuit today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss a Title VII sex discrimination claim brought by the chaplain of a Chatolic college who was constructively dismissed. http://www.ca3.uscourts.gov/opinarch/051222p.pdf The majority opinion was written by Judge Edward Becker, who died last Friday, and was joined by Judge Nygaard (both Republican appointees). Judge Smith dissented. The decision raises a host of interesting and important questions. 1. For a start, can a dead judge's vote count? (See Howard Bashman's query here: http://howappealing.law.com/052406.html#014771.) If this were the Supreme Court, the answer would be "no," I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when "the case is submitted") and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority. What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible. Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith "cure" the problem by formally shifting his vote to "reverse," out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his "dissent"? 2. Part of the Becker opinion suggests that the SCOTUS's religious-organization autonomy cases are solely about preventing courts from having to adjudicate questions of religious doctrine, religious belief and church regulation, and that where a case can be decided without such adjudication of religious questions, generally applicable laws can and should be applied to churches and religious organizations. See pages 37-38 (citing Jones and Smith). This would be a truly radical doctrinal decision: Until now, no court has held that Smith applies to ministerial decisions. But the court does not follow through on its logic. At several places in the opinion (e.g., pages 32, 47, 51), Becker acknowledges that if a Church does discriminate on the basis of sex as a matter of religious doctrine in ministerial decisions (e.g., in deciding that only men may be priests), it will have a constitutional defense to title VII liability, even though title VII is a generally applicable law and even though in such a case a Court would not necessarily have to resolve any questions of religious doctrine, religious belief and church regulation. 3. The case is decided on a motion to dismiss (i.e., the court of appeals simply permits the case to go forward to discovery and possible trial). At this stage, the college has not asserted any religious basis for dismissing the plaintiff. Judge Becker is careful to explain that if the college does allege a religious basis for its decisions, the case would have to proceed without the plaintiff being able to question the bona fides, or legitimacy, of the
Re: Third Circuit departs from majority
Because the status of the minister is so inextricably intertwined with the religious community, its beliefs and practices, and its autonomy. Any review of a decision regarding hiring or selecting a minister improperly intrudes on free exercise.Not the same rule for janitors, bookkeepers, etc.SteveOn May 24, 2006, at 4:59 PM, Marty Lederman wrote: "This has to be a categorical exception." Because . . . why, exactly? What if, for instance, the college did not contend that the decision was based on any religious rationale at all, but was instead purely a matter of (non-religiously motivated) sex discrimination. Why should it receive a constitutional exemption from a statutory obligation in that instance? - Original Message - From: Steven Jamar To: Law Religion issues for Law Academics Sent: Wednesday, May 24, 2006 4:39 PM Subject: Re: Third Circuit departs from majority Third Circuit is wrong. This has to be a categorical exception. Like certain kinds of immunity based on status -- e.g., a judge.Supreme Court will take it.On May 24, 2006, at 4:22 PM, Volokh, Eugene wrote: In today's Petruska v. Gannon University,http://www.ca3.uscourts.gov/opinarch/051222p.pdf, the Third Circuit held(2-1, per the late Judge Becker), that the ministerial exception toantidiscrimination law applies only when the religious employer'sactions are motivated by the employer's religious beliefs. Thus, if achurch fires (or refuses to hire) a minister based on the minister'srace or sex, the church is *not* immune from an antidiscriminationlawsuit unless it can show that the race or sex discrimination wasreligiously motivated, as opposed to the product of nonreligiousprejudices on the decisionmaker's part.The other cases that have recognized a ministerial exceptionhave generally (as best I can tell, unanimously, if one counts thosecases that have confronted the issue) held that church decisions aboutministers' employment are *categorically* immune, with no need for adetermination of whether the church's motive was religious. The ThirdCircuit thus departs from the dominant rule for ministerial exceptioncases, and follows a path that's more common in other religious freedom(whether pre-Smith Free Exercise or RFRA) cases, where the claimant mustshow a sincerely held religious belief animating his actions.Any thoughts on (a) whether the Third Circuit was right, and (b)whether the Supreme Court is likely to grant cert to resolve the newlycreated circuit split?Eugene___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. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires."Walter Lippmann ___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.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. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008http://www.law.howard.edu/faculty/pages/jamar/ ___ To post, send message to
Re: Judge Becker Posthumously Creates Circuit Split on MinisterialException
See Mayor and City Council of Baltimore v. Mathews, 571 F.2d 1273 (4th Cir. 1978): Upon consideration of the appellees' petitions for rehearing and the response filed by the appellants, we conclude that Judge Craven's vote cannot be counted in the disposition of these appeals. Judge Craven died after approving Parts I and II of the opinion that Judge Winter wrote expressing the views of a majority of the court. His death occurred, however, before the dissenting and concurring opinions were written and before the court's decision was announced. Therefore, Judge Craven's approval of Judge Winter's draft cannot be tallied for the purpose of deciding the appeals. Cf. United States v. American-Foreign Steamship Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960). Accordingly, we withdraw the opinions that were previously filed, affirm by an equally divided court the district court's orders granting preliminary injunctions, and remand the case to the district court for trial. Regrettably, these cases have been delayed by our initial misapprehension of the effect of Judge Craven's death on their outcome. Consequently, we request the district court to try them and enter a final order as expeditiously as possible. [EMAIL PROTECTED] 5/24/2006 1:32:48 PM The U.S. Court of Appeals for the Third Circuit today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss a Title VII sex discrimination claim brought by the chaplain of a Chatolic college who was constructively dismissed. http://www.ca3.uscourts.gov/opinarch/051222p.pdf The majority opinion was written by Judge Edward Becker, who died last Friday, and was joined by Judge Nygaard (both Republican appointees). Judge Smith dissented. The decision raises a host of interesting and important questions. 1. For a start, can a dead judge's vote count? (See Howard Bashman's query here: http://howappealing.law.com/052406.html#014771.) If this were the Supreme Court, the answer would be no, I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when the case is submitted) and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority. What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible. Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith cure the problem by formally shifting his vote to reverse, out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his dissent? 2. Part of the Becker opinion suggests that the SCOTUS's religious-organization autonomy cases are solely about preventing courts from having to adjudicate questions of religious doctrine, religious belief and church regulation, and that where a case can be decided without such adjudication of religious questions, generally applicable laws can and should be applied to churches and religious organizations. See pages 37-38 (citing Jones and Smith). This would be a truly radical doctrinal decision: Until now, no court has held that Smith applies to ministerial decisions. But the court does not follow through on its logic. At several places in the opinion (e.g., pages 32, 47, 51), Becker acknowledges that if a Church does discriminate on the basis of sex as a matter of religious doctrine in ministerial decisions (e.g., in deciding that only men may be priests), it will have a constitutional defense to title VII liability, even though title VII is a generally applicable law and even though in such a case a Court would not necessarily have to resolve any questions of religious doctrine, religious belief and church regulation. 3. The case is decided on a motion to dismiss (i.e., the court of appeals simply permits the case to go forward to discovery and possible trial). At this stage, the college has not asserted any religious basis for dismissing the plaintiff. Judge Becker is careful to explain
Re: Third Circuit departs from majority
The Petruska case is not a hiring case, but a firing case. In any event, why should religious institutions be able to discriminate at will -- in ways that are not mandated by religious belief -- just because they are religious? Is the societal harm different if committed by a religious institution rather than a secular institution? I certainly don't think so. Marci In a message dated 5/24/2006 5:39:48 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Because the status of the minister is so inextricably intertwined with the religious community, its beliefs and practices, and its autonomy. Any review of a decision regarding hiring or selecting a minister improperly intrudes on free exercise. Not the same rule for janitors, bookkeepers, etc. 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: Third Circuit departs from majority
On May 24, 2006, at 5:43 PM, [EMAIL PROTECTED] wrote: The Petruska case is not a hiring case, but a firing case. In any event, why should religious institutions be able to discriminate at will -- in ways that are not mandated by religious belief -- just because they are religious?See prior answer. Yes. Just because they are religious. When we are talking about ministers. Is the societal harm different if committed by a religious institution rather than a secular institution? I certainly don't think so.Yes. The countervailing need for independence of a religious institution is much greater than that of a business or non-religious charity.Steve Marci In a message dated 5/24/2006 5:39:48 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Because the status of the minister is so inextricably intertwined with the religious community, its beliefs and practices, and its autonomy. Any review of a decision regarding hiring or selecting a minister improperly intrudes on free exercise. Not the same rule for janitors, bookkeepers, etc.Steve ___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. -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"Face violence if necessary, but refuse to return violence. If we respect those who oppose us, they may achieve a new understanding of the human relations involved."Martin Luther King, Jr. ___ 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: Third Circuit departs from majority
Marci and Steve are each focusing on different issues -- while such discrimination may not be mandated by religious doctrine (and thus raising a weaker free exercise need), the Court in Amos indicated that the concern was a chilling impact on religious institutions (while admitting that the burden on Mormon doctrine was minimal). Steve Green On May 24, 2006, at 5:43 PM, [EMAIL PROTECTED] wrote: The Petruska case is not a hiring case, but a firing case. In any event, why should religious institutions be able to discriminate at will -- in ways that are not mandated by religious belief -- just because they are religious? See prior answer. Yes. Just because they are religious. When we are talking about ministers. Is the societal harm different if committed by a religious institution rather than a secular institution? I certainly don't think so. Yes. The countervailing need for independence of a religious institution is much greater than that of a business or non-religious charity. Steve Marci In a message dated 5/24/2006 5:39:48 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Because the status of the minister is so inextricably intertwined with the religious community, its beliefs and practices, and its autonomy. Any review of a decision regarding hiring or selecting a minister improperly intrudes on free exercise. Not the same rule for janitors, bookkeepers, etc. 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/ pages/jamar Face violence if necessary, but refuse to return violence. If we respect those who oppose us, they may achieve a new understanding of the human relations involved. Martin Luther King, Jr. ___ 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.
