Re: 75% of Minneapolis airport taxis refuse customerswithalco hol
The state may well choose to accommodate things for which the constitution does not compel accommodation. Is it the religious motive of the driver that matters? Or the conduct of the passenger? Can these taxi drivers discriminate against all those who drink alcohol? For that matter, why don't they, if that is the basis for the action. This is an arbitrary, idiosyncratic interpretation of the dictates of Islam with so many internal inconsistencies as to not be the sort of thing that needs be granted the hammer of constitutionalizing the accommodation. Of course the fact that it is so idiosyncratic doesn't really matter (much) except insofar as it can be shown to really be non-genuine -- because how do they (logically) distinguish between those who had wine on the plane, those carrying bottles in luggage, those carrying bottles in bags, those carrying bottles in the open? As to color coding by this or that passenger -- is that not a form of discrimination against passengers too? You can only take green cabs, but others can take either green or purple? Curious to me how this little aberrant understanding of Islam in practice would get started and then grow as it did. Interesting demonstration of group-think. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol
Human beings are not generic round pegs that are carefully shaved down to a uniform size on a lathe so as to fit perfectly into every round hole. When society, through the force of law, demands that everyone be the same and behave the same, demanding that people surrender their deeply-held religious beliefs so as to be an efficient cog in the societal machine, then we have lost our liberty. Instead, being part of a diverse community means making reasonable accommodations for religious views, thus making it possible, within reasonable parameters, for people from every faith to fully participate in our public and economic life. The question is finding that right balance between reasonable accommodation for persons with deeply held religious beliefs and the need for effective performance of the job at hand. If it is impossible to make an accommodation and the requirement is an important part of the task at hand, then accommodation would not be required. Thus, for example, if every flight attendant were Muslim, allowing all flight attendants to refuse to serve alcohol to passengers might be an unreasonable accommodation (although we certainly could as a society then discuss whether accommodation was a sufficiently important and respectful measure as to justify removing service of alcohol from airplane transportation, as being able to imbibe alcohol while sitting on a plane is hardly a civil right (although it is a privilege that I admit to enjoying).) But if a one flight attendant out of four on a plane was a Muslim and were to ask to be the person who hands out pillows or food or soft drinks, rather than be the one who fills drink orders, that would be a simple accommodation that inconveniences no one and respects the dignity and individuality of the person involved. That these questions require a case-by-case analysis -- rather than imposition of absolutist rules -- simply reflects that we are human beings and not cattle. In any event, I think the Minneapolis-St. Paul airport and the Muslim cab drivers should be commended for seeking to find a balance in a way that addresses all concerns and shows respect for all persons. That we can imagine another set of circumstances in which reasonable accommodation would not be possible is no argument to refuse to accommodate in circumstances where it can be accomplished with little inconvenience. We ought to be grateful that we still live in a society where, at least in some regions and in some circumstances, reasonable people of good faith are wiling to look for a solution that doesn't involve excluding people's whose views are not our own or imposing a rigid and exclusive bureaucratic rule by the majority upon a minority group. Greg Sisk Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Friday, September 29, 2006 10:50 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol we should not force someone to take a job if they must break religious beliefs, that is too coercive; but surely we cannot run a society if people who have an obligation to do a job (pick up fares) refuse to do that job. COnsider this. What if all 75% of the Muslim cabbies took this position, and then, over time, 95% of the cabbies were Muslims who would not pick up certain fares? And if 25% of all flight attendants are Muslim and refuse to serve drinks on planes, do we color code our planes; or our amtrack trains? Can the conductor on the train refuse to sell a ticket to the passenger who is legally drinking on the train? Paul Finkelman Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/29/06 5:37 PM Sandy: I still wonder why this isn't just assuming the conclusion. One could equally well say that unemployment beneficiaries must take any job for which they're qualified, end of story, having been granted unemployment compensation on those terms. Or one could say that a restaurant given a valuable liquor license must open seven days a week, end of story, notwithstanding the fact that its owner feels a religious obligation to close Saturdays or Sundays. The question here is whether it's proper for those who define the rules to come up with an exception that accommodates the licensee's religious beliefs, while at the same time avoiding inconvenience to the public. It's hard to come up with such an accommodation for the postal worker, but not that hard, I think, for the cab drivers (the color-coding being a pretty good idea). If the airport is willing to accommodate the drivers, why
RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol
Hard to imagine how telling a cab driver to pick up a passenger shaves down the person's faith. Let's try it another way: suppose devoutly Muslim (or Jewish) men drave susbtantial numbers of cabs and refuse to pick up fares of women who are not modestly dressed. No shorts or short skirts? Are you prepared to say that their first amendment rights to dress as they wish should be trumped by the religious beliefs of someone who holds a licence that says he must pick up all passsengers? I do not know when Greg last flew, but my sense is that flight attendants are pretty busy and can't divide up jobs according to religous preference. Hard to imagine how you would run that business. I am not suggesting that we exclude anyone from the society on the basis of religion; just that people hired to do a job, should do it Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/30 1:42 PM Human beings are not generic round pegs that are carefully shaved down to a uniform size on a lathe so as to fit perfectly into every round hole. When society, through the force of law, demands that everyone be the same and behave the same, demanding that people surrender their deeply-held religious beliefs so as to be an efficient cog in the societal machine, then we have lost our liberty. Instead, being part of a diverse community means making reasonable accommodations for religious views, thus making it possible, within reasonable parameters, for people from every faith to fully participate in our public and economic life. The question is finding that right balance between reasonable accommodation for persons with deeply held religious beliefs and the need for effective performance of the job at hand. If it is impossible to make an accommodation and the requirement is an important part of the task at hand, then accommodation would not be required. Thus, for example, if every flight attendant were Muslim, allowing all flight attendants to refuse to serve alcohol to passengers might be an unreasonable accommodation (although we certainly could as a society then discuss whether accommodation was a sufficiently important and respectful measure as to justify removing service of alcohol from airplane transportation, as being able to imbibe alcohol while sitting on a plane is hardly a civil right (although it is a privilege that I admit to enjoying).) But if a one flight attendant out of four on a plane was a Muslim and were to ask to be the person who hands out pillows or food or soft drinks, rather than be the one who fills drink orders, that would be a simple accommodation that inconveniences no one and respects the dignity and individuality of the person involved. That these questions require a case-by-case analysis -- rather than imposition of absolutist rules -- simply reflects that we are human beings and not cattle. In any event, I think the Minneapolis-St. Paul airport and the Muslim cab drivers should be commended for seeking to find a balance in a way that addresses all concerns and shows respect for all persons. That we can imagine another set of circumstances in which reasonable accommodation would not be possible is no argument to refuse to accommodate in circumstances where it can be accomplished with little inconvenience. We ought to be grateful that we still live in a society where, at least in some regions and in some circumstances, reasonable people of good faith are wiling to look for a solution that doesn't involve excluding people's whose views are not our own or imposing a rigid and exclusive bureaucratic rule by the majority upon a minority group. Greg Sisk Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Friday, September 29, 2006 10:50 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol we should not force someone to take a job if they must break religious beliefs, that is too coercive; but surely we cannot run a society if people who have an obligation to do a job (pick up fares) refuse to do that job. COnsider this. What if all 75% of the Muslim cabbies took this position, and then, over time, 95% of the cabbies were Muslims who would not pick up certain fares? And if 25% of all flight attendants are Muslim and refuse to serve drinks on planes, do we color code our planes; or our amtrack trains? Can the conductor on the train refuse to sell a ticket to the passenger who is legally drinking on the train? Paul Finkelman Paul Finkelman President William McKinley Distinguished Professor of Law and
RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol
It's only hard to imagine that telling a Muslim cab driver to knowingly assist someone in transporting alcohol could be a burden on faith if you're unwilling to put yourself, even for a moment, in that person's shoes and consider the matter from the point of view of the believer involved, rather than insisting upon evaluating by one's own worldview. The sincerity of the Muslim cab drivers is denied by no one who is familiar with the situation here in the Twin Cities. They sincerely believe that they are directly assisting evil if they knowingly participate in the transportation of an illicit substance. That's not my worldview either, but I have no difficulty understanding it and see no reason not to respect and accommodate to it. Paul's absolutist standard of if you're hired to do a job, just do it is so rigid that it would lead to innumerable instances of injustice and disrespect for diversity in our society, as well as create situations in which certain elements of the economy and public life would be closed to people of certain faiths, not for reasons of necessity but merely of efficiency and convenience. By effectively saying that cab driving is off limits to Muslims or being a physician is off limits to Catholics (by reason of rules requiring training or assistance in abortion) is to make people of certain faiths second-class citizens and alienated from society. That is not a healthy road down which to travel. Nor should we forget that the majority makes the rules, and often are less than willing to consider the effect imposed on the minority. Of course, we cannot allow police officers or fire fighters to decide whether to respond to a particular location on religious grounds. Likewise, we cannot allow military servicemembers to refuse commands to participate in military action because of religious pacifism. But most situations don't require such strict rules or refusal to accommodate. A person should be able to practice medicine, without being required to participate in abortions or assisted suicide. A religiously-affiliated hospital should be able to provide medical services and employ hundreds, without being required to make its facilities available for abortions. A lawyer should be able to practice law, without being forcibly appointed by a court to represent someone seeking an abortion or the right to kill themselves. The owner of a commercial building should be able to participate in the commercial leasing market, without being required to accept the lease of the adult bookstore or the strip club. A bank loan officer should be able to hold a job, without being assigned to the account of the local pornography industry (assuming another employee could be so assigned). A Jewish person should be able to obtain most jobs, without being required to work on the Sabbath (when such accommodation is reasonable). A traditional Muslim woman should be permitted to hold a job, without being required to remove her veil, at least for other than safety reasons. By making such accommodations, we ensure that our society remains open to people from all faiths and we avoid the incalculable harm of damaging a person of faith for no reason other than custom, bureaucracy, the arrogance of a majority, or mere convenience. As for Paul's other hypotheticals, once again, each requires a case-by-case analysis as reasonableness, rather than strict and broad rules just for the sake of efficiency and uniformity. And in fact we do in many sectors of society allow people to make judgments based on modesty of clothing. No shirt, no shoes, no service. Does that impinge on people's preferences for lighter clothing, particular along a beach or during the summer? Yes. Should we deny the store that prerogative? Can we allow the same accommodation for cab drivers, perhaps not. I am comfortable living with a vibrant and healthy and diverse society in which things are not the same everywhere and in every circumstance. That's the human condition. Greg Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 12:52 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu; [EMAIL PROTECTED] Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol Hard to imagine how telling a cab driver to pick up a passenger shaves down the person's faith. Let's try it another way: suppose devoutly Muslim (or Jewish) men drave susbtantial numbers of cabs and refuse to pick up fares of women who are not modestly dressed. No shorts or short skirts? Are you prepared to say that their first amendment rights to dress as they wish should be trumped by the religious beliefs of someone who holds a licence that says he must pick up all passsengers? I
Victory for Military Chaplains Who Pray In Jesus Name
AlthoughCongress didn't pass new legislation,they did order SECNAV and SECAF to rescind their recent (illegal) policies that required "non-sectarian" prayersso the controversial Air Force Guidelines (and Navy policy) are now TOTALLY RESCINDED, and military chaplains are free to pray "in Jesus name" in any public setting. The official Senate/House conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdfIn Jesus name, Chaplain Klingenschmitt 719-360-5132 cell www.persuade.tv ---Press Release: VICTORY FOR MILITARY CHAPLAINS WHO PRAY "IN JESUS NAME" To: National DeskContact: Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] WASHINGTON DC, Sept. 30th /Christian Newswire/ -- 1) Navy and Air Force Chaplains free to pray "in Jesus name" again. 2) Congress orders Secretary of the Navy to rescind "non-sectarian" prayer policy. 3) Congress orders Secretary of the Air Force to rescind "guidelines concerning the exercise of religion."After months of fighting the Navys "non-sectarian" prayer policy, Chaplain Gordon James Klingenschmitt rejoiced on Friday as the U.S. Congress took decisive action to overturn recent Navy and Air Force policies that required "non-sectarian" prayers. "Praise be to God, military chaplains can once again pray freely in Jesus name!" Klingenschmitt declared victory. "Although this fight may have cost my career and my pension, it was well worth it, because now at least other chaplains will be given the same religious liberty I was denied."While Senator John Warner blocked language in the Defense Authorization Act to let chaplains pray according to their conscience, Congressman Duncan Hunter held firm and secured non-negotiable language in the "Conference Report" forcing the Navy and Air Force to rescind their "non-sectarian" prayer policies. The official conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdfJanet Folger, Founder and President of Faith To Action, declared victory as well: "This conference report has teeth. It restores freedom of speech to military chaplains, it restores the law since 1860 that traditionally let chaplains pray in Jesus name in any setting, and it serves a swift rebuke to Secretary of the Navy Donald C. Winter. Hes now been ordered by Congress to rescind his illegal policy, and stop his censorship of chaplains prayers. Winter is over, its Summer again, for chaplains who pray in Jesus name." Klingenschmitt also believes this policy change will overturn his recent court-martial conviction. "When my court-martial judge ruled that wearing my uniform during public worship is only safe inside Sunday chapel, but that worshipping in public in uniform can be criminally punished if you disobey orders, he based his ruling on SECNAVINST 1730.7C, that same illegal policy Congress just rescinded. That proves my commanders original order was unlawful, and my court-martial verdict is now legally unenforceable." Klingenschmitt has already written to Secretary of Defense Donald H. Rumsfeld, read here: http://www.persuade.tv/frenzy6/LetterToSECDEF22Sep06.pdf To schedule an interview with Chaplain Klingenschmitt or Janet Folger, contact Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] Stay in the know. Pulse on the new Yahoo.com. Check it out. ___ 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: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol
Greg's analysis seems entirely right to me. To add just one item, would we respond to religious requests for days off with You were hired to do a job Tuesday to Saturday, do it? Say that taxicabs were expected to be on duty Monday through Friday until 10 pm, and someone asked for an exemption for Friday evenings. Should we just reject such a request, on the theory that there may be other such requests that would be too burdensome? Or should we see if we can accommodate the person (for instance, because there are enough other cab drivers who are willing to work Friday evenings)? The question here, recall, isn't even whether the airport authority has a state constitutional obligation to accommodate the religious objection -- only whether it's proper for it to do so if it wants to. Eugene -Original Message- From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 11:20 AM To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu' Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol It's only hard to imagine that telling a Muslim cab driver to knowingly assist someone in transporting alcohol could be a burden on faith if you're unwilling to put yourself, even for a moment, in that person's shoes and consider the matter from the point of view of the believer involved, rather than insisting upon evaluating by one's own worldview. The sincerity of the Muslim cab drivers is denied by no one who is familiar with the situation here in the Twin Cities. They sincerely believe that they are directly assisting evil if they knowingly participate in the transportation of an illicit substance. That's not my worldview either, but I have no difficulty understanding it and see no reason not to respect and accommodate to it. Paul's absolutist standard of if you're hired to do a job, just do it is so rigid that it would lead to innumerable instances of injustice and disrespect for diversity in our society, as well as create situations in which certain elements of the economy and public life would be closed to people of certain faiths, not for reasons of necessity but merely of efficiency and convenience. By effectively saying that cab driving is off limits to Muslims or being a physician is off limits to Catholics (by reason of rules requiring training or assistance in abortion) is to make people of certain faiths second-class citizens and alienated from society. That is not a healthy road down which to travel. Nor should we forget that the majority makes the rules, and often are less than willing to consider the effect imposed on the minority. Of course, we cannot allow police officers or fire fighters to decide whether to respond to a particular location on religious grounds. Likewise, we cannot allow military servicemembers to refuse commands to participate in military action because of religious pacifism. But most situations don't require such strict rules or refusal to accommodate. A person should be able to practice medicine, without being required to participate in abortions or assisted suicide. A religiously-affiliated hospital should be able to provide medical services and employ hundreds, without being required to make its facilities available for abortions. A lawyer should be able to practice law, without being forcibly appointed by a court to represent someone seeking an abortion or the right to kill themselves. The owner of a commercial building should be able to participate in the commercial leasing market, without being required to accept the lease of the adult bookstore or the strip club. A bank loan officer should be able to hold a job, without being assigned to the account of the local pornography industry (assuming another employee could be so assigned). A Jewish person should be able to obtain most jobs, without being required to work on the Sabbath (when such accommodation is reasonable). A traditional Muslim woman should be permitted to hold a job, without being required to remove her veil, at least for other than safety reasons. By making such accommodations, we ensure that our society remains open to people from all faiths and we avoid the incalculable harm of damaging a person of faith for no reason other than custom, bureaucracy, the arrogance of a majority, or mere convenience. As for Paul's other hypotheticals, once again, each requires a case-by-case analysis as reasonableness, rather than strict and broad rules just for the sake of efficiency and uniformity. And in fact we do in many sectors of society allow people to make judgments based on modesty of clothing. No shirt, no shoes, no service. Does that impinge on people's preferences for lighter clothing, particular along a beach or during the summer? Yes. Should we deny the store that prerogative?
Re: Victory for Military Chaplains Who Pray In Jesus Name
And a loss for all sailors and soldiers and member of the air force who will feel excluded and shut out by people like Cap. Klingenschmitt and his ilk who cannot understand the difference between their role as officers in relationship to all members of the armed forces, and their personal needs to proclaim their private religious beliefs. Our soldiers die to protect the latter right; they should not be subjected to the oppression from military chaplains who insist on insulting and antagonizing soldiers and sailors and causing conflict within the ranks. I am sure Capt. Kingenschmitt can draw great comfort in the thoughts that his public prayers that offend many in the armed forces will in the end undermine the ability of the armed forces to defend the nation. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] Gordon James Klingenschmitt [EMAIL PROTECTED] 09/30/06 3:14 PM Although Congress didn't pass new legislation, they did order SECNAV and SECAF to rescind their recent (illegal) policies that required non-sectarian prayersso the controversial Air Force Guidelines (and Navy policy) are now TOTALLY RESCINDED, and military chaplains are free to pray in Jesus name in any public setting. The official Senate/House conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf In Jesus name, Chaplain Klingenschmitt 719-360-5132 cell www.persuade.tv --- Press Release: VICTORY FOR MILITARY CHAPLAINS WHO PRAY IN JESUS NAME To: National Desk Contact: Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] WASHINGTON DC, Sept. 30th /Christian Newswire/ -- 1) Navy and Air Force Chaplains free to pray in Jesus name again. 2) Congress orders Secretary of the Navy to rescind non-sectarian prayer policy. 3) Congress orders Secretary of the Air Force to rescind guidelines concerning the exercise of religion. After months of fighting the Navy's non-sectarian prayer policy, Chaplain Gordon James Klingenschmitt rejoiced on Friday as the U.S. Congress took decisive action to overturn recent Navy and Air Force policies that required non-sectarian prayers. Praise be to God, military chaplains can once again pray freely in Jesus name! Klingenschmitt declared victory. Although this fight may have cost my career and my pension, it was well worth it, because now at least other chaplains will be given the same religious liberty I was denied. While Senator John Warner blocked language in the Defense Authorization Act to let chaplains pray according to their conscience, Congressman Duncan Hunter held firm and secured non-negotiable language in the Conference Report forcing the Navy and Air Force to rescind their non-sectarian prayer policies. The official conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf Janet Folger, Founder and President of Faith To Action, declared victory as well: This conference report has teeth. It restores freedom of speech to military chaplains, it restores the law since 1860 that traditionally let chaplains pray in Jesus name in any setting, and it serves a swift rebuke to Secretary of the Navy Donald C. Winter. He's now been ordered by Congress to rescind his illegal policy, and stop his censorship of chaplains' prayers. Winter is over, it's Summer again, for chaplains who pray in Jesus name. Klingenschmitt also believes this policy change will overturn his recent court-martial conviction. When my court-martial judge ruled that wearing my uniform during 'public worship' is only safe inside Sunday chapel, but that 'worshipping in public' in uniform can be criminally punished if you disobey orders, he based his ruling on SECNAVINST 1730.7C, that same illegal policy Congress just rescinded. That proves my commander's original order was 'unlawful,' and my court-martial verdict is now legally unenforceable. Klingenschmitt has already written to Secretary of Defense Donald H. Rumsfeld, read here: http://www.persuade.tv/frenzy6/LetterToSECDEF22Sep06.pdf To schedule an interview with Chaplain Klingenschmitt or Janet Folger, contact Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] - Stay in the know. Pulse on the new Yahoo.com. Check it out. ___ 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
Accommodating arbitrary, idiosyncratic interpretation[s] ... with ... many internal inconsistencies
I had thought that, where constitutional accommodations are involved, Thomas v. Review Bd. had settled the matter: It's not up to the government to decide whether beliefs are internally consistent, or whether they are shared by all of the claimant's ostensible coreligionists. Nor is it up to the government to question the line the claimants draw. (We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.) Now it doesn't follow that the cab drivers ought to have a constitutional entitlement to the accommodation; since I agree with Smith, I think that they shouldn't, and even under the Minnesota Constitution's provision, which Minnesota courts have interpreted as following Sherbert and Yoder, it's possible that one might reject the accommodation claim (though it's interesting to see just how this could be done). I just think that their claim cant be rejected on the grounds that their interpretation of Islamic law is arbitrary, idiosyncratic, or inconsistent. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, September 30, 2006 6:42 AM To: Law Religion issues for Law Academics Subject: Re: 75% of Minneapolis airport taxis refuse customerswithalco hol The state may well choose to accommodate things for which the constitution does not compel accommodation. Is it the religious motive of the driver that matters? Or the conduct of the passenger? Can these taxi drivers discriminate against all those who drink alcohol? For that matter, why don't they, if that is the basis for the action. This is an arbitrary, idiosyncratic interpretation of the dictates of Islam with so many internal inconsistencies as to not be the sort of thing that needs be granted the hammer of constitutionalizing the accommodation. Of course the fact that it is so idiosyncratic doesn't really matter (much) except insofar as it can be shown to really be non-genuine -- because how do they (logically) distinguish between those who had wine on the plane, those carrying bottles in luggage, those carrying bottles in bags, those carrying bottles in the open? As to color coding by this or that passenger -- is that not a form of discrimination against passengers too? You can only take green cabs, but others can take either green or purple? Curious to me how this little aberrant understanding of Islam in practice would get started and then grow as it did. Interesting demonstration of group-think. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Accommodating arbitrary, idiosyncratic interpretation[s] ... with ... many internal inconsistencies
Nor do I and nor did I so claim. On 9/30/06, Volokh, Eugene [EMAIL PROTECTED] wrote: I had thought that, where constitutional accommodations are involved, Thomas v. Review Bd. had settled the matter: It's not up to the government to decide whether beliefs are internally consistent, or whether they are shared by all of the claimant's ostensible coreligionists. Nor is it up to the government to question the line the claimants draw. (We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.) Now it doesn't follow that the cab drivers ought to have a constitutional entitlement to the accommodation; since I agree with Smith, I think that they shouldn't, and even under the Minnesota Constitution's provision, which Minnesota courts have interpreted as following Sherbert and Yoder, it's possible that one might reject the accommodation claim (though it's interesting to see just how this could be done). I just think that their claim cant be rejected on the grounds that their interpretation of Islamic law is arbitrary, idiosyncratic, or inconsistent. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, September 30, 2006 6:42 AM To: Law Religion issues for Law Academics Subject: Re: 75% of Minneapolis airport taxis refuse customerswithalco hol The state may well choose to accommodate things for which the constitution does not compel accommodation. Is it the religious motive of the driver that matters? Or the conduct of the passenger? Can these taxi drivers discriminate against all those who drink alcohol? For that matter, why don't they, if that is the basis for the action. This is an arbitrary, idiosyncratic interpretation of the dictates of Islam with so many internal inconsistencies as to not be the sort of thing that needs be granted the hammer of constitutionalizing the accommodation. Of course the fact that it is so idiosyncratic doesn't really matter (much) except insofar as it can be shown to really be non-genuine -- because how do they (logically) distinguish between those who had wine on the plane, those carrying bottles in luggage, those carrying bottles in bags, those carrying bottles in the open? As to color coding by this or that passenger -- is that not a form of discrimination against passengers too? You can only take green cabs, but others can take either green or purple? Curious to me how this little aberrant understanding of Islam in practice would get started and then grow as it did. Interesting demonstration of group-think. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol
Paul's distinction doesn't hold up. Part of doing the job is doing it on the days assigned to work. It is just as sensible to define the job of being a cab driver as accepting assignments on equal terms with other employees to work on Saturday, as it is to define it as picking up every fare at the airport. If an accommodation is appropriate for a Sabbath observer (and I gather that Paul agrees it is), which means of course that someone else may be inconvenienced by having to work on Saturday or Sunday (or by the employer in having to pay more to get someone to work on the weekend), then a reasonable accommodation is appropriate for other incidents of the employment, such as how the task is undertaken, adjustments made to the way it is performed, or assignments within the employee pool of different elements of the task. These elements of the job are no more or less part of the employment than the days of work that are assigned. Greg Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 3:19 PM To: religionlaw@lists.ucla.edu Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol not about days off, but about doing the job on the days you work; one is an accommodation to religious needs but it gets the job done and leaves NO discretion to the employee to decide who to serve and who not to serve; this system means some people won't get picked up and won't know why and sets the stage for discrimination. the day off does not exempt workers from doing the job when they are at work; the Minn. program does. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/30/06 4:09 PM Greg's analysis seems entirely right to me. To add just one item, would we respond to religious requests for days off with You were hired to do a job Tuesday to Saturday, do it? Say that taxicabs were expected to be on duty Monday through Friday until 10 pm, and someone asked for an exemption for Friday evenings. Should we just reject such a request, on the theory that there may be other such requests that would be too burdensome? Or should we see if we can accommodate the person (for instance, because there are enough other cab drivers who are willing to work Friday evenings)? The question here, recall, isn't even whether the airport authority has a state constitutional obligation to accommodate the religious objection -- only whether it's proper for it to do so if it wants to. Eugene -Original Message- From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 11:20 AM To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu' Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol It's only hard to imagine that telling a Muslim cab driver to knowingly assist someone in transporting alcohol could be a burden on faith if you're unwilling to put yourself, even for a moment, in that person's shoes and consider the matter from the point of view of the believer involved, rather than insisting upon evaluating by one's own worldview. The sincerity of the Muslim cab drivers is denied by no one who is familiar with the situation here in the Twin Cities. They sincerely believe that they are directly assisting evil if they knowingly participate in the transportation of an illicit substance. That's not my worldview either, but I have no difficulty understanding it and see no reason not to respect and accommodate to it. Paul's absolutist standard of if you're hired to do a job, just do it is so rigid that it would lead to innumerable instances of injustice and disrespect for diversity in our society, as well as create situations in which certain elements of the economy and public life would be closed to people of certain faiths, not for reasons of necessity but merely of efficiency and convenience. By effectively saying that cab driving is off limits to Muslims or being a physician is off limits to Catholics (by reason of rules requiring training or assistance in abortion) is to make people of certain faiths second-class citizens and alienated from society. That is not a healthy road down which to travel. Nor should we forget that the majority makes the rules, and often are less than willing to consider the effect imposed on the minority. Of course, we cannot allow police officers or fire fighters to decide whether to respond to a particular location on religious grounds. Likewise, we cannot allow military servicemembers to
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
Well, we started with people hired to do a job, should do it. Now we're at people hired to do a job, should do it on the days that they are willing to do it, even though they can get an exemption from the schedule the job usually required. Why not have an alternative vision -- people hired to do a job, should do it, but if they have serious moral or religious objections to some aspect of the job, we should try to accommodate them when such an accommodation wouldn't be that hard? That, I take it, is the way many jobs are run. If you're doing research on pornography that requires accessing sexually themed material, and the secretary or librarian you ask to help you says I wonder whether I might hand this off to my colleague who doesn't have my religious objections to it, I take it you'd say Sure, at least if the hand-off will be relatively simple. If some small part of a biological research task involves vivisection of small animals, and one of the researchers offers to trade off this task with a colleague, I'd think the supervisor would be and should be happy to oblige. Why should the words common carrier magically dissolve this laudable willingness to accommodate? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Saturday, September 30, 2006 1:19 PM To: religionlaw@lists.ucla.edu Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol not about days off, but about doing the job on the days you work; one is an accommodation to religious needs but it gets the job done and leaves NO discretion to the employee to decide who to serve and who not to serve; this system means some people won't get picked up and won't know why and sets the stage for discrimination. the day off does not exempt workers from doing the job when they are at work; the Minn. program does. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/30/06 4:09 PM Greg's analysis seems entirely right to me. To add just one item, would we respond to religious requests for days off with You were hired to do a job Tuesday to Saturday, do it? Say that taxicabs were expected to be on duty Monday through Friday until 10 pm, and someone asked for an exemption for Friday evenings. Should we just reject such a request, on the theory that there may be other such requests that would be too burdensome? Or should we see if we can accommodate the person (for instance, because there are enough other cab drivers who are willing to work Friday evenings)? The question here, recall, isn't even whether the airport authority has a state constitutional obligation to accommodate the religious objection -- only whether it's proper for it to do so if it wants to. Eugene -Original Message- From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 11:20 AM To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu' Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol It's only hard to imagine that telling a Muslim cab driver to knowingly assist someone in transporting alcohol could be a burden on faith if you're unwilling to put yourself, even for a moment, in that person's shoes and consider the matter from the point of view of the believer involved, rather than insisting upon evaluating by one's own worldview. The sincerity of the Muslim cab drivers is denied by no one who is familiar with the situation here in the Twin Cities. They sincerely believe that they are directly assisting evil if they knowingly participate in the transportation of an illicit substance. That's not my worldview either, but I have no difficulty understanding it and see no reason not to respect and accommodate to it. Paul's absolutist standard of if you're hired to do a job, just do it is so rigid that it would lead to innumerable instances of injustice and disrespect for diversity in our society, as well as create situations in which certain elements of the economy and public life would be closed to people of certain faiths, not for reasons of necessity but merely of efficiency and convenience. By effectively saying that cab driving is off limits to Muslims or being a physician is off limits to Catholics (by reason of rules requiring training or assistance in abortion) is to make people of certain faiths second-class citizens and alienated from society. That is not a healthy road down which to travel. Nor should we forget that the majority makes the rules, and often are less than willing to consider the effect imposed on the minority. Of
RE: Accommodating arbitrary, idiosyncratic interpretation[s] ... with ... many internalinconsistencies
Hmm -- then why bring up the supposed arbitrariness, idiosyncracy, or inconsistency of the taxi drivers' beliefs? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, September 30, 2006 1:25 PM To: Law Religion issues for Law Academics Subject: Re: Accommodating arbitrary,idiosyncratic interpretation[s] ... with ... many internalinconsistencies Nor do I and nor did I so claim. On 9/30/06, Volokh, Eugene [EMAIL PROTECTED] wrote: I had thought that, where constitutional accommodations are involved, Thomas v. Review Bd. had settled the matter: It's not up to the government to decide whether beliefs are internally consistent, or whether they are shared by all of the claimant's ostensible coreligionists. Nor is it up to the government to question the line the claimants draw. (We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.) Now it doesn't follow that the cab drivers ought to have a constitutional entitlement to the accommodation; since I agree with Smith, I think that they shouldn't, and even under the Minnesota Constitution's provision, which Minnesota courts have interpreted as following Sherbert and Yoder, it's possible that one might reject the accommodation claim (though it's interesting to see just how this could be done). I just think that their claim cant be rejected on the grounds that their interpretation of Islamic law is arbitrary, idiosyncratic, or inconsistent. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Saturday, September 30, 2006 6:42 AM To: Law Religion issues for Law Academics Subject: Re: 75% of Minneapolis airport taxis refuse customerswithalco hol The state may well choose to accommodate things for which the constitution does not compel accommodation. Is it the religious motive of the driver that matters? Or the conduct of the passenger? Can these taxi drivers discriminate against all those who drink alcohol? For that matter, why don't they, if that is the basis for the action. This is an arbitrary, idiosyncratic interpretation of the dictates of Islam with so many internal inconsistencies as to not be the sort of thing that needs be granted the hammer of constitutionalizing the accommodation. Of course the fact that it is so idiosyncratic doesn't really matter (much) except insofar as it can be shown to really be non-genuine -- because how do they (logically) distinguish between those who had wine on the plane, those carrying bottles in luggage, those carrying bottles in bags, those carrying bottles in the open? As to color coding by this or that passenger -- is that not a form of discrimination against passengers too? You can only take green cabs, but others can take either green or purple? Curious to me how this little aberrant understanding of Islam in practice would get started and then grow as it did. Interesting demonstration of group-think. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password,
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
(1) The fact that we limit businesspeople's freedom of choice when it comes to discriminating against customers based on race, religion, sex, and so on doesn't mean that we ought to limit it as to everything else. (2) In particular, I don't know of any rules that bar Muslim grocers from refusing to serve people who are carrying six packs from other stores, nor do I see why there should be such rules. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Friday, September 29, 2006 8:45 PM To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED] Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol Again, the employement compesation is different; this is about a duty of common carriers to accept all people. Moreover, it opens too many other exceptions -- pagan symbols, race mixing (Bob Jones Cab Co. won't pick up mixed race couples); I think we all think of many examples of how very religious people can find a religious reason for not picking up someone; can a muslim tow truck driver refuse to tow the broken Miller Beer Truck? Can the Muslim bus driver close the door on the overtly pagan kids trying to get on the bus; can Muslim Cabbies (or Evangelical Christians) refuse to carry Wickens? Where, I would ask, would Greg or Eugene draw the line -- on common carries and places of public accommodations? The Muslim grocer can close on Friday and refuse to carry beer; but he cannot refuse to sell to someone who bought beer next store and is legally carrying a six pack (closed of course) as he tried to by chips and salsa in the Muslim store. By the way, if they meet other criteria, would favor unemployment compensation for Muslin cabbies who quit because they cannot obey the law which requires them to take all passengers. Paul FInkelman Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/29/06 6:45 PM It seems to me that the right question is whether the religious accommodation may be made in a manner that does not cause an unacceptable burden to others. Whether or not such an accommodation is compelled, in the post-Employment Division v. Smith period, it surely is not prohibited. Being here in Minneapolis as I am, I can report that this story has received significant play in the press. And, interestingly, this appears to be a case in which all the parties concerned are behaving with courtesy and respect in an attempt to find the right balance and live together in a community without being forced to surrender faith. The Muslim cab drivers agree that they would not inquire as to what a person is carrying - the Koran does not impose such a duty of inquiry - so any alcohol included in baggage would not be known to or covered by the their refusal to accept the carriage of alcohol. The concern is for visible carrying of alcohol (although not just in open containers, as Paul Finkelman correctly assumed). The Muslim cab drivers further have agreed that they would place a different colored light on their cabs, so that the attendants for the cab waiting line at the airport would simply direct the next passenger in line who is visibly carrying alcohol to the next cab in line that does not have the different light. In most cases, this would occur so unobtrusively that the passenger wouldn't even know what has just occurred. In this way, every passenger still will receive cab service in the order in which he or she appears in the cab waiting line, while the Muslim cab drivers may face a temporary wait for the next passenger without alcohol, a minor burden placed on and accepted by the Muslim community in exchange for accommodation of their deeply-held beliefs. Please keep in mind as well that this is Minneapolis-St. Paul - not New York or Washington, D.C. - so that most passengers arriving at the airport are not taking cabs and thus accommodation for the relatively few passengers who do take cabs is made all the easier. Eugene's point of comparison with unemployment beneficaries is quite apt, in light of recent events in Germany. As he says, drawing the comparison with the Muslim cab drivers, One could equally well say that unemployment beneficiaries must take any job for which they're qualified, end of story, having been granted unemployment compensation on those terms. A case recently arose in Germany in which a young woman, a person of faith as I recall, who received unemployment compensation was told that her benefits would be terminated because she had refused to accept a job as a prostitute that had been posted at the unemployment office, prostitution being a
RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol
To piggy-back on Eugene's point, such accommodation is not only wise public policy (in my view), but is wise employer behavior, not only to maintain higher morale but also to ensure higher quality of work. As an example, when I was an appellate lawyer at the Department of Justice, it was openly offered to us that should we have a strong moral or religious objection to working on a particular case, we should express it, would be released from the case, and this would have no detrimental effect on our review. I took advantage of that offer on only one occasion, when the government (as I recall the matter from many years later) was objecting to a religious seminary's refusal on religious grounds to accept a returning student who had interrupted his religious training for military service. In my view, this offended the seminary's religious liberty and I was morally unwilling to cooperate with the government in that intrusion. As former Judge Patricia Wald of the United States Court of Appeals for the District of Columbia Circuit commented on this very policy: With changes in administrations, many government counsel understand that, at least in DOJ, lawyers are not required, at the peril of ending their careers, to represent government policy that collides with their most fundamental beliefs. (The don't ask, don't tell policy on gays in the military is one example, I am told, where lawyers sincerely opposed to the policy are excused from defending it.) This kind of leeway is wise policy for an agency; given that the government is a vast enterprise required to take on a multitude of subjects, the possibilities of both conflict and substitution are greater. It is also wise for government counsel to take their employer up on the offer: Their discomfort is often discernible to the court, and no government counsel should be asked to ignore deeply felt convictions (so long as he does not have too many). Patricia M. Wald, For the United States: Government Lawyers in Court, 61 Law Contemp. Probs. 107, 121 (Winter 1998). I'd submit that it is wise policy as well for most employers considering religious accommodation requests, even if the First Amendment or Title VII doesn't require it. Greg Gregory Sisk Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, September 30, 2006 3:28 PM To: Law Religion issues for Law Academics Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol Well, we started with people hired to do a job, should do it. Now we're at people hired to do a job, should do it on the days that they are willing to do it, even though they can get an exemption from the schedule the job usually required. Why not have an alternative vision -- people hired to do a job, should do it, but if they have serious moral or religious objections to some aspect of the job, we should try to accommodate them when such an accommodation wouldn't be that hard? That, I take it, is the way many jobs are run. If you're doing research on pornography that requires accessing sexually themed material, and the secretary or librarian you ask to help you says I wonder whether I might hand this off to my colleague who doesn't have my religious objections to it, I take it you'd say Sure, at least if the hand-off will be relatively simple. If some small part of a biological research task involves vivisection of small animals, and one of the researchers offers to trade off this task with a colleague, I'd think the supervisor would be and should be happy to oblige. Why should the words common carrier magically dissolve this laudable willingness to accommodate? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Saturday, September 30, 2006 1:19 PM To: religionlaw@lists.ucla.edu Subject: RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol not about days off, but about doing the job on the days you work; one is an accommodation to religious needs but it gets the job done and leaves NO discretion to the employee to decide who to serve and who not to serve; this system means some people won't get picked up and won't know why and sets the stage for discrimination. the day off does not exempt workers from doing the job when they are at work; the Minn. program does. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/30/06 4:09 PM Greg's analysis seems entirely right to me. To add just one item, would we respond to religious requests for
Re: Victory for Military Chaplains Who Pray In Jesus Name
That's actually rather amusing. The House -- which passed a bill that would have prescribed that chaplains would have the "prerogative" to pray "according to the dictates of their conscience" -- actually receded inconference. That is to say, the Senate conferees prevailed, and therefore the law contains no such prescription. But then the conferees purport to "driect" the Secretary of the Air Force to rescind the recent policy. This is not a "direction" of Congress, let alone a duly enacted law, and it has no operative legal effect. Besides which, for the chaplains in their official capacities to engage in public prayer "in Jesus's name" would violate the Establishment Clause, and thus could not be "prescribed," even by statute. - Original Message - From: Gordon James Klingenschmitt To: UCLA Law Class Sent: Saturday, September 30, 2006 3:14 PM Subject: Victory for Military Chaplains Who Pray "In Jesus Name" AlthoughCongress didn't pass new legislation,they did order SECNAV and SECAF to rescind their recent (illegal) policies that required "non-sectarian" prayersso the controversial Air Force Guidelines (and Navy policy) are now TOTALLY RESCINDED, and military chaplains are free to pray "in Jesus name" in any public setting. The official Senate/House conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf In Jesus name, Chaplain Klingenschmitt 719-360-5132 cell www.persuade.tv --- Press Release: VICTORY FOR MILITARY CHAPLAINS WHO PRAY "IN JESUS NAME" To: National Desk Contact: Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] WASHINGTON DC, Sept. 30th /Christian Newswire/ -- 1) Navy and Air Force Chaplains free to pray "in Jesus name" again. 2) Congress orders Secretary of the Navy to rescind "non-sectarian" prayer policy. 3) Congress orders Secretary of the Air Force to rescind "guidelines concerning the exercise of religion." After months of fighting the Navys "non-sectarian" prayer policy, Chaplain Gordon James Klingenschmitt rejoiced on Friday as the U.S. Congress took decisive action to overturn recent Navy and Air Force policies that required "non-sectarian" prayers. "Praise be to God, military chaplains can once again pray freely in Jesus name!" Klingenschmitt declared victory. "Although this fight may have cost my career and my pension, it was well worth it, because now at least other chaplains will be given the same religious liberty I was denied." While Senator John Warner blocked language in the Defense Authorization Act to let chaplains pray according to their conscience, Congressman Duncan Hunter held firm and secured non-negotiable language in the "Conference Report" forcing the Navy and Air Force to rescind their "non-sectarian" prayer policies. The official conference report language can be read here: http://www.persuade.tv/frenzy6/VictoryPolicyRescinded.pdf Janet Folger, Founder and President of Faith To Action, declared victory as well: "This conference report has teeth. It restores freedom of speech to military chaplains, it restores the law since 1860 that traditionally let chaplains pray in Jesus name in any setting, and it serves a swift rebuke to Secretary of the Navy Donald C. Winter. Hes now been ordered by Congress to rescind his illegal policy, and stop his censorship of chaplains prayers. Winter is over, its Summer again, for chaplains who pray in Jesus name." Klingenschmitt also believes this policy change will overturn his recent court-martial conviction. "When my court-martial judge ruled that wearing my uniform during public worship is only safe inside Sunday chapel, but that worshipping in public in uniform can be criminally punished if you disobey orders, he based his ruling on SECNAVINST 1730.7C, that same illegal policy Congress just rescinded. That proves my commanders original order was unlawful, and my court-martial verdict is now legally unenforceable." Klingenschmitt has already written to Secretary of Defense Donald H. Rumsfeld, read here: http://www.persuade.tv/frenzy6/LetterToSECDEF22Sep06.pdf To schedule an interview with Chaplain Klingenschmitt or Janet Folger, contact Wanda Sanchez, 209-534-9921, [EMAIL PROTECTED] or Chaplain Klingenschmitt, 719-360-5132, [EMAIL PROTECTED] Stay in the know. Pulse on the new Yahoo.com. Check it out. ___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
Re: Victory for Military Chaplains Who Pray In Jesus Name
Chaplain Klingenschmitt: With all due respect, this is simple nonsense. 1. Section 6031 does not say that military chaplains may pray "in Jesus's name," and if it did authorize such prayers in the chaplains' official capacities, it would almost certainly violate the Establishment Clause in that respect. 2. For reasons we've discussed at great length before, chaplains have no Free Exercise rights to pray in the manner of their choosing when they are acting in their official capacities. 3. Citing Lee v. Weisman, and only Lee v. Weisman, for the proposition that the state must permit a state employee to give a sectarian prayer in a public capacity, is just about the most absurd "reading" of a case that I've ever seen. - Original Message - From: Gordon James Klingenschmitt To: Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 5:25 PM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name" Ah yes, Marty, the House receded, but so did these (novel, invasive)Feb 2006 policies recede into oblivion,allowing the real power of the oldlaw (enshrined since 1860) to befully restored: THE LAW, GENTLEMEN: US CODE TITLE 10 SECTION 6031: "An officer in the chaplain corps may conduct public worship according to the manner and forms of the church of which he is a member." And the U.S.Supreme Court disagrees with your interpretation, that allowing "freedom" in prayer content would somehow violate the establishment clause, in fact they ruled the opposite: 1991 Lee vs. Weisman (Majority Decision): "The government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds...The State's role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions" and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale, (1962), and that is what the school officials attempted to do." So Marty is technically wrong on both counts: 1) There is a long-standinglaw to let military chaplains pray in Jesus name, and 2) Government censorship ofanyone's prayer contentviolates the First Amendment (unless you disagree with the U.S. Supreme Court). Smile guys...liberty is prevailing here! You still believe in freedom of speech, don't you? Chaplain Klingenschmitt Marty Lederman [EMAIL PROTECTED] wrote: That's actually rather amusing. The House -- which passed a bill that would have prescribed that chaplains would have the "prerogative" to pray "according to the dictates of their conscience" -- actually receded inconference. That is to say, the Senate conferees prevailed, and therefore the law contains no such prescription. But then the conferees purport to "driect" the Secretary of the Air Force to rescind the recent policy. This is not a "direction" of Congress, let alone a duly enacted law, and it has no operative legal effect. Besides which, for the chaplains in their official capacities to engage in public prayer "in Jesus's name" would violate the Establishment Clause, and thus could not be "prescribed," even by statute. Do you Yahoo!?Get on board. You're invited to try the new Yahoo! Mail. ___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
Re: Victory for Military Chaplains Who Pray In Jesus Name
I decided to take a quick look over at section 6031. Subsection (a), which Chaplain Klingenschmitt quotes, does not provide that chaplains may "pray in Jesus's name" as part of their public services. It's much more modest, and not very objectionable.Subsections (b) and (c), on the otherhand, areunconstitutional relics: (b) The commanders of vessels and naval activities to which chaplains are attached shall cause divine service to be performed on Sunday, whenever the weather and other circumstances allow it to be done; and it is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.(c) All persons in the Navy and in the Marine Corps are enjoined to behave themselves in a reverent and becoming manner during divine service. So I doubt the government will be invoking the authority of section 6031 anytime soon. Oh, and by the way, 6031 isn't much help to Chaplain Klingenschmitt for another reason, too: It's limited to the Navy and Marines. The analogous Air Force statute, 10 USC 8547, much more "appropriately"provides that "[e]ach chaplain shall, when practicable, hold appropriate religious services at least once on each Sunday for the command to which he is assigned, and shall perform appropriate religious burial services for members of the Air Force who die while in that command." - Original Message - From: Marty Lederman To: [EMAIL PROTECTED] ; Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 5:50 PM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name" Chaplain Klingenschmitt: With all due respect, this is simple nonsense. 1. Section 6031 does not say that military chaplains may pray "in Jesus's name," and if it did authorize such prayers in the chaplains' official capacities, it would almost certainly violate the Establishment Clause in that respect. 2. For reasons we've discussed at great length before, chaplains have no Free Exercise rights to pray in the manner of their choosing when they are acting in their official capacities. 3. Citing Lee v. Weisman, and only Lee v. Weisman, for the proposition that the state must permit a state employee to give a sectarian prayer in a public capacity, is just about the most absurd "reading" of a case that I've ever seen. - Original Message - From: Gordon James Klingenschmitt To: Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 5:25 PM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name" Ah yes, Marty, the House receded, but so did these (novel, invasive)Feb 2006 policies recede into oblivion,allowing the real power of the oldlaw (enshrined since 1860) to befully restored: THE LAW, GENTLEMEN: US CODE TITLE 10 SECTION 6031: "An officer in the chaplain corps may conduct public worship according to the manner and forms of the church of which he is a member." And the U.S.Supreme Court disagrees with your interpretation, that allowing "freedom" in prayer content would somehow violate the establishment clause, in fact they ruled the opposite: 1991 Lee vs. Weisman (Majority Decision): "The government may not establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds...The State's role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions" and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale, (1962), and that is what the school officials attempted to do." So Marty is technically wrong on both counts: 1) There is a long-standinglaw to let military chaplains pray in Jesus name, and 2) Government censorship ofanyone's prayer contentviolates the First Amendment (unless you disagree with the U.S. Supreme Court). Smile guys...liberty is prevailing here! You still believe in freedom of speech, don't you?
RE: Victory for Military Chaplains Who Pray In Jesus Name
Disclaimer: Any views expressed below are my own and do not necessarily reflect the official position of the Department of the Navy or the Navy Chaplain Corps. Professors, If the agreement to remove the "Military Chaplains Prayer Law" from the National Defense Authorization Act resulted somehow in language being inserted that would have the effect of rescinding the cited instructions and reinstatingearlier directives --- and I did see the note asserting that the action has no operative legal effect --- far more may be rescinded than just the language described as limiting prayer. I am not familiar with Air Force Instructions, but rescinding the Navy's19-page instruction and reinstating the earlier, 4-page instruction --- in addition to rescinding the sectionapparently at issue ---may also throw the following other provisions of thenewer instruction into question: the position of Deputy Chief of Chaplains for Reserve Affairs express language requiring chaplains to "strive to avoid the establishment of religion to ensure that free exercise rights are protected for all authorized personnel" and to "provide ministry to those of their own faith, facilitate ministry to those of other faiths, and care for all service members." a requirement for chaplains to "respect the rights of others to their own religious beliefs, including the right to hold no beliefs." a prohibition against chaplains obtaining and wearing weapons or warfare qualifications an express prohibition against compelling chaplains "to participate in religious activities inconsistent with their beliefls" (suggesting, perhaps, that they can be so compelled?) a 3 1/2 page Department of the Navy policy on confidentiality ofcommunications made to chaplains and religious program specialists, including broad new protections for servicemembers and chaplains that exceed even the rules on privileged communications in the UCMJ a 6 1/2 page Department of the Navy policy on accommodation of religious practices within the Navy apparently designed to protect the rights of both chaplains and other servicemembers. For your convenience and some context, since my guess is that few have had the time to review the text of SECNAVINST 1730.7C, the key provisions at issue in all this appear to be inparagraphs 5.d. and 6.of the instruction. Paragraph 5.d. includes the following provisions (among others): (2) As a condition of appointment, every [Religious Ministry Professional (RMP)] must be willing to function in a pluralistic environment in the military, where diverse religious traditions exist side-by-side with tolerance and respect. Every RMP must be willing to support directly and indirectly the free exercise of religion by all military members of the DON, their family members, and other, persons authorized to be served, in cooperation with other chaplains and RMPs. Chaplains are trained to minister within the specialized demands of the military environment without compromising the tenets of their own religious tradition. (3) In providing religious ministry, chaplains shall strive to avoid the establishment of religion to ensure that free exercise rights are protected for all authorized personnel. (4) Chaplains will provide ministry to those of their own faith, facilitate ministry to those of other faiths, and care for all service members, including those who claim no religious faith. Chaplains shall respect the rights of others to their own religious beliefs, including the right to hold no beliefs. Paragraph 6 includes the following provisions among others: b. Chaplains will not be compelled to participate in religious activities inconsistent with their beliefs. c. Commanders retain the responsibility to provide guidance for all command functions. In planning command functions, commanders shall determine whether a religious element is appropriate. In considering the appropriateness for including a religious element, commanders, with appropriate advice from a chaplain, should assess the setting and context of the function, the diversity of faith that may be represented among the participants; and whether the function is mandatory for all hands. Other than Divine/Religious Services, religious elements for a command function, absent extraordinary circumstances, should be non-sectarian in nature. Neither the participation of a chaplain, nor the inclusion of a religious element, in and of themselves, renders a command function a Divine Service or, public worship. Once a commander determines a religious element is appropriate, the chaplain may choose to participate based on his or her faith constraints. If the chaplain chooses not to participate, he or she may do so with no adverse consequences. Anyone accepting a commander's invitation to provide religious
Re: Victory for Military Chaplains Who Pray In Jesus Name
Perhaps Marty's right about one thing...our modern "enlightened" reading of the Constitution has (sadly) evolved quite a distance from when the founding fathers wrote that beloved document. Here is theorigin ofthatportion of10 USC 6031 (which Marty quoted, but hated) as firstwritten by our Founding Fathers (who knew the Constitution's meaning better than we do, let's admit): One of the first acts of Congress in June, 1775 was to pass Articles of War.There were only 12 of them. Article 2 was basically "Go to church and treat it with respect."Art. II. It is earnestly recommended to all officers and soldiers, diligently to attend Divine Service; and all officers and soldiers who shall behave indecently or irreverently at any place of Divine Worship, shall, if commissioned officers, be brought before a court-martial. there to be publicly and severely reprimanded by the President; if non-commissioned officers or soldiers, every person so offending, shall, for his first offence, forfeit One Sixth of a Dollar, to be deducted out of his next pay; for the second offence, he shall not only forfeit a like sum, but be confined for twenty-four hours, and for every like offence, shall suffer and pay in like manner; which money so forfeited, shall be applied to the use of the sick soldiers of the troop or company to which the offender belongs. How far then, Marty, has our nation devolved into anti-Christian decadence, when instead of court-martialing any soldier or officer who misbehaved during divine worship, we now court-martial the chaplain whodares to wear his uniform while "worshipping in public" and we reward the Commanding Officer who entered his chapel and punished him for quoting the Bible in the pulpit? Am I the only oneon this list, who still believesthe wayour Founding Fathers did? Does anybody see the dramatic irony here? Chaplain Klingenschmitt (Federal Convict) Marty Lederman [EMAIL PROTECTED] wrote: I decided to take a quick look over at section 6031. Subsection (a), which Chaplain Klingenschmitt quotes, does not provide that chaplains may "pray in Jesus's name" as part of their public services. It's much more modest, and not very objectionable.Subsections (b) and (c), on the otherhand, areunconstitutional relics:(b) The commanders of vessels and naval activities to which chaplains are attached shall cause divine service to be performed on Sunday, whenever the weather and other circumstances allow it to be done; and it is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.(c) All persons in the Navy and in the Marine Corps are enjoined to behave themselves in a reverent and becoming manner during divine service. So I doubt the government will be invoking the authority of section 6031 anytime soon.Oh, and by the way, 6031 isn't much help to Chaplain Klingenschmitt for another reason, too: It's limited to the Navy and Marines. The analogous Air Force statute, 10 USC 8547, much more "appropriately"provides that "[e]ach chaplain shall, when practicable, hold appropriate religious services at least once on each Sunday for the command to which he is assigned, and shall perform appropriate religious burial services for members of the Air Force who die while in that command."- Original Message - From: Marty Lederman To: [EMAIL PROTECTED] ; Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 5:50 PM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"Chaplain Klingenschmitt:With all due respect, this is simple nonsense. 1. Section 6031 does not say that military chaplains may pray "in Jesus's name," and if it did authorize such prayers in the chaplains' official capacities, it would almost certainly violate the Establishment Clause in that respect.2. For reasons we've discussed at great length before, chaplains have no Free Exercise rights to pray in the manner of their choosing when they are acting in their official capacities.3. Citing Lee v. Weisman, and only Lee v. Weisman, for the proposition that the state must permit a state employee to give a sectarian prayer in a public capacity, is just about the most absurd "reading" of a case that I've ever seen. Yahoo! Messenger with Voice. Make PC-to-Phone Calls to the US (and 30+ countries) for 2¢/min or less.___ 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: Victory for Military Chaplains Who Pray In Jesus Name
Washington was also careful about his orders -- notice that the law does not specify which "divine service." The law was partly to smooth the religious strife that was feared between units from New England and units from Virginia, and units from Maryland, and units from Pennsylvania -- all of which had different religious traditions. The law did not require attendance, nor did it require belief in Christianity -- it suggested everybody had a right to worship unmolested. Washington's orders to the troops invading Canada were even more specific -- do not in any case offend the faith of anyone whose faith differs from yours.In that light, the question Gordon raises becomes a little different, I think. The founders believed fully in not crossing the faith of another soldier nor even an enemy combatant. Where do we get off today thinking that modern chaplains shouldn't live up to the same high standards? Why not follow the example of our founders, and avoid insulting the faiths of others?Ed Darrell DallasGordon James Klingenschmitt [EMAIL PROTECTED] wrote:Perhaps Marty's right about one thing...our modern "enlightened" reading of the Constitution has (sadly) evolved quite a distance from when the founding fathers wrote that beloved document. Here is theorigin ofthatportion of10 USC 6031 (which Marty quoted, but hated) as firstwritten by our Founding Fathers (who knew the Constitution's meaning better than we do, let's admit): One of the first acts of Congress in June, 1775 was to pass Articles of War.There were only 12 of them. Article 2 was basically "Go to church and treat it with respect."Art. II. It is earnestly recommended to all officers and soldiers, diligently to attend Divine Service; and all officers and soldiers who shall behave indecently or irreverently at any place of Divine Worship, shall, if commissioned officers, be brought before a court-martial. there to be publicly and severely reprimanded by the President; if non-commissioned officers or soldiers, every person so offending, shall, for his first offence, forfeit One Sixth of a Dollar, to be deducted out of his next pay; for the second offence, he shall not only forfeit a like sum, but be confined for twenty-four hours, and for every like offence, shall suffer and pay in like manner; which money so forfeited, shall be applied to the use of the sick soldiers of the troop or company to which the offender belongs. How far then, Marty, has our nation devolved into anti-Christian decadence, when instead of court-martialing any soldier or officer who misbehaved during divine worship, we now court-martial the chaplain whodares to wear his uniform while "worshipping in public" and we reward the Commanding Officer who entered his chapel and punished him for quoting the Bible in the pulpit? Am I the only oneon this list, who still believesthe wayour Founding Fathers did? Does anybody see the dramatic irony here? Chaplain Klingenschmitt (Federal Convict) Marty Lederman [EMAIL PROTECTED] wrote: I decided to take a quick look over at section 6031. Subsection (a), which Chaplain Klingenschmitt quotes, does not provide that chaplains may "pray in Jesus's name" as part of their public services. It's much more modest, and not very objectionable.Subsections (b) and (c), on the otherhand, areunconstitutional relics:(b) The commanders of vessels and naval activities to which chaplains are attached shall cause divine service to be performed on Sunday, whenever the weather and other circumstances allow it to be done; and it is earnestly recommended to all officers, seamen, and others in the naval service diligently to attend at every performance of the worship of Almighty God.(c) All persons in the Navy and in the Marine Corps are enjoined to behave themselves in a reverent and becoming manner during divine service. So I doubt the government will be invoking the authority of section 6031 anytime soon.Oh, and by the way, 6031 isn't much help to Chaplain Klingenschmitt for another reason, too: It's limited to the Navy and Marines. The analogous Air Force statute, 10 USC 8547, much more "appropriately"provides that "[e]ach chaplain shall, when practicable, hold appropriate religious services at least once on each Sunday for the command to which he is assigned, and shall perform appropriate religious burial services for members of the Air Force who die while in that command."- Original Message - From: Marty Lederman To: [EMAIL PROTECTED] ; Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 5:50 PM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name"Chaplain Klingenschmitt:With all due respect, this is simple nonsense.1. Section 6031 does not say that military chaplains may pray "in Jesus's name," and if it did authorize such prayers in the chaplains' official capacities, it would almost certainly violate the Establishment Clause in that
RE: Victory for Military Chaplains Who Pray In Jesus Name
It seems there is a distinction between Divine/Religious Services and other command functions. I don't suppose Marty is saying that a chaplain may not pray in Jesus' name during Divine/Relgious Services. Paragraph 6(c) does not require that Divine/Religious Services be non-sectarian but only that religious elements in other command functions be non-sectarian. If Divine/Religious Services were required to be nonsectarian then they couldn't be divine services for the chaplain's particular faith; note that the chaplains are required to provide ministry to those of their own faith which rules out nonsectarian requirements for such ministry whether or not that ministry occurs in a Divine/Religious Service. I suppose there could be a serious question whether a particular memorial service for a deceased sailor (the context, I believe of Chaplain Klingenschmitt's disagreement with the Navy) is a Divine/Religious Service or instead a different kind of remembrance of the sailor. Whether nonsectarian prayer would be required might depend on how the event was classified, I think. Mark Scarberry Pepperdine From: [EMAIL PROTECTED] on behalf of W. A. Wildhack III Sent: Sat 9/30/2006 5:02 PM To: 'Law Religion issues for Law Academics' Subject: RE: Victory for Military Chaplains Who Pray In Jesus Name Disclaimer: Any views expressed below are my own and do not necessarily reflect the official position of the Department of the Navy or the Navy Chaplain Corps. Professors, If the agreement to remove the Military Chaplains Prayer Law from the National Defense Authorization Act resulted somehow in language being inserted that would have the effect of rescinding the cited instructions and reinstating earlier directives --- and I did see the note asserting that the action has no operative legal effect --- far more may be rescinded than just the language described as limiting prayer. I am not familiar with Air Force Instructions, but rescinding the Navy's 19-page instruction and reinstating the earlier, 4-page instruction --- in addition to rescinding the section apparently at issue --- may also throw the following other provisions of the newer instruction into question: * the position of Deputy Chief of Chaplains for Reserve Affairs * express language requiring chaplains to strive to avoid the establishment of religion to ensure that free exercise rights are protected for all authorized personnel and to provide ministry to those of their own faith, facilitate ministry to those of other faiths, and care for all service members. * a requirement for chaplains to respect the rights of others to their own religious beliefs, including the right to hold no beliefs. * a prohibition against chaplains obtaining and wearing weapons or warfare qualifications * an express prohibition against compelling chaplains to participate in religious activities inconsistent with their beliefls (suggesting, perhaps, that they can be so compelled?) * a 3 1/2 page Department of the Navy policy on confidentiality of communications made to chaplains and religious program specialists, including broad new protections for servicemembers and chaplains that exceed even the rules on privileged communications in the UCMJ * a 6 1/2 page Department of the Navy policy on accommodation of religious practices within the Navy apparently designed to protect the rights of both chaplains and other servicemembers. For your convenience and some context, since my guess is that few have had the time to review the text of SECNAVINST 1730.7C, the key provisions at issue in all this appear to be in paragraphs 5.d. and 6. of the instruction. Paragraph 5.d. includes the following provisions (among others): (2) As a condition of appointment, every [Religious Ministry Professional (RMP)] must be willing to function in a pluralistic environment in the military, where diverse religious traditions exist side-by-side with tolerance and respect. Every RMP must be willing to support directly and indirectly the free exercise of religion by all military members of the DON, their family members, and other, persons authorized to be served, in cooperation with other chaplains and RMPs. Chaplains are trained to minister within the specialized demands of the military environment without compromising the tenets of their own religious tradition. (3) In providing religious ministry, chaplains shall strive to avoid the establishment of religion to ensure that free exercise rights are protected for all authorized personnel. (4) Chaplains will provide ministry to those of their own faith, facilitate ministry to those of other faiths, and care for all service members, including those who claim no religious faith. Chaplains shall respect the rights of
RE: Victory for Military Chaplains Who Pray In Jesus Name
Excellent comment Professor Scarberry, But now that the policy is rescinded, so is any distinction between "public worship at divine services" and "public worship at command ceremonies" and so the law (once again) protects the chaplain at all events whenever he prays...prayer itself is restored as an act of "public worship" the same way italways had been since 1860.The origins of the 1860 law were described recently by ournew friend CDR Wildhack, who wrote in the Naval Law Review Vol 51 (2003): "As in our day, questions about the manner and forms of worship have also long been a part of the history of the Chaplain Corps. Early regulations specified that the duties of chaplains included having to 'read' prayers (53). In 1859, the Speaker of the House of Representatives asked the Secretary of the Navy whether chaplains were required to 'read' prayers or follow any particular forms or ceremony in leading worship, and if the Navy had any evidence of a requirement that non-Episcopal chaplains had to follow the Episcopal liturgy (54). In replying, the Secretary explained that he was not aware that the instruction to 'read' had ever been construed to require a literal reading from a particular prayer book, but rather as a requirement that prayers be offered aloud without specifying they be read from a book, written down by the chaplain beforehand to be read later, or offered extemporaneously (55). To further reassure the Speaker and his colleagues in Congress, the Secretary announced a new order officially interpreting the requirement that prayers be 'read' to mean that prayers be 'offered,' thus leaving the chaplain free to follow the dictates of his own religious tradition.(56) Perhaps in response to such communication with Congress, new Navy Regulations adopted in 1860 included this addition: "Every chaplain shall be permitted to conduct public worship according to the manner and forms of the church of which he may be a member."(57) No longer merely a regulation, that language is now in force as part of the United States Code.(58)" Thanks to CDR Wildhack for this insightBut it reveals today'stragic ironythe Episcopal Book of Common Prayer was once seen as 'mandatory' for all chaplains...but Congress (wisely) overcame that, to allow non-Christian chaplains (i.e. first 3 Jewish chaplains appointed by Abe Lincoln in 1860) total freedom to NOT the use Christian prayer book...and now in 2006, the policy actually PROHIBITED using the Christian prayer bookin publicthe pendulum swung too far...so now Congress has (wisely) righted itself, to restorereligious diversity, allowing any variety of prayers to be said,instead of punishing Christian prayers while forcing Christian chaplains to pray Jewish prayers (i.e. theologically sensitive prayers). Chaplain Klingenschmitt "Scarberry, Mark" [EMAIL PROTECTED] wrote: It seems there is a distinction between "Divine/Religious Services" and other "command functions." I don't suppose Marty is saying that a chaplain may not pray in Jesus' name during Divine/Relgious Services. Paragraph 6(c) does not require that Divine/Religious Services be non-sectarian but only that religious elements in other command functions be non-sectarian. If Divine/Religious Services were required to be nonsectarian then they couldn't be divine services for the chaplain's particular faith; note that the chaplains are required to "provide ministry to those of their own faith" which rules out nonsectarian requirements for such ministry whether or not that ministry occurs in a Divine/Religious Service. I suppose there could be a serious question whether a particular memorial service for a deceased sailor (the context, I believe of Chaplain Klingenschmitt's disagreement with the Navy) is a Divine/Religious Service or instead a different kind of remembrance of the sailor. Whether nonsectarian prayer would be required might depend on how the event was classified, I think.Mark ScarberryPepperdine Yahoo! Messenger with Voice. Make PC-to-Phone Calls to the US (and 30+ countries) for 2¢/min or less.___ 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.
