RE: "A Bible study group and a book club are not treated the same"
Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 11:18 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" Or perhaps to strike down the refusal to extend the exemption to relevantly similar nonreligious speech (though I suppose Texas Monthly may be in some tension with that approach)? Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 9:14 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 6:25 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront se
Re: "A Bible study group and a book club are not treated the same"
To interpret the RFRAs to apply to speech is to stretch this legislative movement very far from its origins. RFRA was a response to the Court's decision regarding religious conduct in Smith, not a speech case. Traditionally, religious speech cases have been decided under the Free Speech Clause, not free exercise. It is interesting to watch those arguing for the religious entities argue that religious speech can be worthy of greater protection than other speech because it is religious but at the same time it is no different than other speech when it comes to government funding (Rosenberger), even though the prohibition on government funding is directed at religious speech. The big political picture here is interesting, because if religious entities overreach sufficiently, there will be a backlash against rfras generally. And since they are not constitutionally required, legislative repeal is possible. Of course, we are not there yet. While there is a burgeoning and passionate movement against RLUIPA's impact on residential neighborhoods, most citizens in states with rfras have little idea they exist, let alone impose on the public good. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 6/21/2009 1:54:50 PM Eastern Daylight Time, aebrownst...@ucdavis.edu writes: Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein **A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=62&bcd= JunestepsfooterNO62) ___ 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: "A Bible study group and a book club are not treated the same"
I agree with Doug on this, and I wasn't trying to suggest the contrary. But I take it that discussion of literature would be no less protected than "social, political, or other ideological messages" (even setting aside book club meetings that discuss political books, or discuss books from a political perspective). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, June 20, 2009 7:40 PM To: religionlaw@lists.ucla.edu Subject: RE: "A Bible study group and a book club are not treated the same" To be precise: Heffron said religious speech gets *no* extra constitutional protection as compared to "other organizations having social, political, or other ideological messages to proselytize," and to "other social, political, or charitable organizations." 452 U.S. at 652-53. This is not terribly precise, but it pointedly excludes commercial speech. Religion gets no extra protection as compared to other high value speech. Quoting "Volokh, Eugene" : > I agree with Alan on all these points, but I should also add > that the one time in the Sherbert/Yorder era that the Court > considered a free speech claim coupled with a free exercise claim, it > seemed to conclude that the Free Exercise Clause should be > interpreted as providing *no* extra protection for religious speech > -- that was in Heffron v. ISKCON, 452 U.S. 640 (1981). > >> -Original Message- >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan >> Sent: Saturday, June 20, 2009 5:53 PM >> To: Law & Religion issues for Law Academics >> Subject: RE: "A Bible study group and a book club are not treated the same" >> >> If we had a constitutional regime that confers special protections for non- >> expressive religious exercise against neutral laws of general >> applicability, the >> issue of how to treat expressive religious exercise would require >> some difficult >> line drawing and analysis. But since Smith controls the meaning of the free >> exercise clause, there is no special federal constitutional >> protection for religious >> exercise -- whether it is expressive or not. Under this regime a >> statute that >> confers special protection for expressive religious exercise is >> going to confront >> serious and unavoidable establishment clause and free speech clause issues, >> isn't it? >> >> Alan Brownstein >> >> From: religionlaw-boun...@lists.ucla.edu >> [religionlaw-boun...@lists.ucla.edu] >> On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] >> Sent: Friday, June 19, 2009 9:05 AM >> To: 'Law & Religion issues for Law Academics' >> Subject: RE: "A Bible study group and a book club are not treated the same" >> >> Let's see ... speech is fully protected, but religious speech is >> even more fully >> protected, indeed advantaged.Can that be right? Yes, if the Free Exercise >> Clause confers special protections for religious speech exercise -- a not >> implausible theory. Yet I have always thought that the >> non-establishment clause >> could justify greater or additional limitations on religious speech. >> Could both be >> true? I don't see any reason why not since the two religious >> clauses are often, >> though not always, at war with one another because they serve two distinct >> purposes. >> >> Randy Bezanson >> >> -Original Message- >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene >> Sent: Friday, June 19, 2009 10:05 AM >> To: Law & Religion issues for Law Academics >> Subject: "A Bible study group and a book club are not treated the same" >> >> I haven't read the whole opinion yet, but in my skim I was >> struck by this line: >> >> "The trial court appears to have been troubled that an >> operation which can >> be and often is conducted for purely secular purposes could be entitled to >> increased protection from government regulation if conducted for religious >> reasons. But TRFRA guarantees such protection. Just as a Bible study group >> and a book club are not treated the same, neither are a halfway >> house operated >> for religious purposes and one that is not. Under Smith, the Free >> Exercise Clause >> does not require strict scrutiny for religious activity affected by >> neutral laws of >> general application,66 but TRFRA imposes the requirement by statute." >> >> Is it clear that it's constitutional, given the Free Speech >> Clause and the >> Establishment Clause, and the position of 6 of the votes in Texas Monthly v. >> Bullock, for the law to treat Bible study groups better than book clubs? >> >> Eugene >> >> >> >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> boun...@lists.ucla.edu] On Behalf Of Douglas Laycock >> Sent: Friday, June 19, 2009 7:58 AM >> To: religionlaw@lists
RE: "A Bible study group and a book club are not treated the same"
Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law & Religion issues for Law Academics' Subject: RE: "A Bible study group and a book club are not treated the same" Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law & Religion issues for Law Academics Subject: "A Bible study group and a book club are not treated the same" I haven't read the whole opinion yet, but in my skim I was struck by this line: "The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute." Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exerci
RE: "A Bible study group and a book club are not treated the same"
A hypothetical: Alan wants to picket an abortion provider's home. Betty wants to picket an anti-abortion leader's home. Alan's motivation is religious, Betty's is secular philosophical. The city has a content-neutral ban on residential picketing, and the state has a RFRA. Can it really be the case that Alan would have a right to picket for religious reasons, but Betty wouldn't have a right to picket for secular reasons? Or that both would have this right, because RFRA would require invalidation of the entire scheme, as the least restrictive means of serving both the interest in protecting religious objectors and the interest in preventing discrimination between religious and secular speakers? (I assume that it's far from clear that a residential picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny applied in Frisby v. Schultz.) Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Sunday, June 21, 2009 10:53 AM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > Good point, Mark. I think statutes like the one reviewed in Texas Monthly that > facially discriminate in favor of religious speech are going to be struck > down. A > more generic religious liberty statute, like a state RFRA, is more > complicated. > > Let's suppose a city is told that it can not enforce its zoning ordinance > against a > Bible study group because of a state RFRA. Then a book club challenges the > application of the zoning ordinance to its activities on the grounds that > Bible study > groups had been held to be exempt from the zoning ordinance under RFRA. One > could argue that a court could resolve this dispute by refusing to allow the > city to > enforce the zoning ordinance against the book club without giving the RFRA > statute a narrow construction. But is that the best result? Now other cities > in the > state have to figure out how the state RFRA applies to their content neutral > laws > that regulate speech and the extent to which exempting religious speech from > those laws under RFRA requires them to grant additional exemptions to other > speakers. It might make more sense to construe the RFRA law not to require > exemptions for religious speech. > > As an aside, I might add that when California was considering a state RFRA > law, > proponents of the law conceded that it would not apply to content neutral > speech > regulations in part because such applications would be unconstitutional.The > contrary argument, that RFRA would require the state and cities to privilege > religious speech, was a very hard sell politically. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > Sent: Saturday, June 20, 2009 11:18 PM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > Or perhaps to strike down the refusal to extend the exemption to relevantly > similar nonreligious speech (though I suppose Texas Monthly may be in some > tension with that approach)? > > Mark Scarberry > Pepperdine > > _ > > From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan > Sent: Sat 6/20/2009 9:14 PM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > I agree with Mark that Smith allows the political process to deal with > religious > exemptions -- as long as those exemptions do not violate any other > constitutional > guarantee. It may well be that the state has a choice as to how it can > respond to > a claim that it discriminates in favor of religious speech. Instead of > standing by > the discriminatory exemption -- which would require a court to invalidate it > -- it > could generalize the exemption to apply to all expressive meetings. But if the > state refuses to extend the exemption, doesn't that require a Court to > subject the > exemption to strict scrutiny and, presumably, to strike it down? > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > Sent: Saturday, June 20, 2009 6:25 PM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > If Smith is going to be used to justify a constitutional prohibition on > religious > exemptions, then it is even worse than I thought. But the point of Smith, as I > understand it, is precisely to allow the political process to deal with > requests for > political exemptions. To the extent t
RE: "A Bible study group and a book club are not treated the same"
Whoops, just noticed, after reading this, that one of the names was chosen unwisely: Alan and Betty are my standard names for such hypotheticals, and not intended to be a reference to any real Alans on this thread. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene > Sent: Sunday, June 21, 2009 11:34 AM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > A hypothetical: Alan wants to picket an abortion provider's home. > Betty > wants to picket an anti-abortion leader's home. Alan's motivation is > religious, > Betty's is secular philosophical. The city has a content-neutral ban on > residential > picketing, and the state has a RFRA. > > Can it really be the case that Alan would have a right to picket for > religious > reasons, but Betty wouldn't have a right to picket for secular reasons? Or > that > both would have this right, because RFRA would require invalidation of the > entire > scheme, as the least restrictive means of serving both the interest in > protecting > religious objectors and the interest in preventing discrimination between > religious > and secular speakers? (I assume that it's far from clear that a residential > picketing ban would pass strict scrutiny, as opposed to the intermediate > scrutiny > applied in Frisby v. Schultz.) > > Eugene > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > > Sent: Sunday, June 21, 2009 10:53 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Good point, Mark. I think statutes like the one reviewed in Texas Monthly > > that > > facially discriminate in favor of religious speech are going to be struck > > down. A > > more generic religious liberty statute, like a state RFRA, is more > > complicated. > > > > Let's suppose a city is told that it can not enforce its zoning ordinance > > against a > > Bible study group because of a state RFRA. Then a book club challenges the > > application of the zoning ordinance to its activities on the grounds that > > Bible > study > > groups had been held to be exempt from the zoning ordinance under RFRA. > One > > could argue that a court could resolve this dispute by refusing to allow > > the city > to > > enforce the zoning ordinance against the book club without giving the RFRA > > statute a narrow construction. But is that the best result? Now other > > cities in the > > state have to figure out how the state RFRA applies to their content neutral > laws > > that regulate speech and the extent to which exempting religious speech from > > those laws under RFRA requires them to grant additional exemptions to other > > speakers. It might make more sense to construe the RFRA law not to require > > exemptions for religious speech. > > > > As an aside, I might add that when California was considering a state RFRA > law, > > proponents of the law conceded that it would not apply to content neutral > speech > > regulations in part because such applications would be unconstitutional.The > > contrary argument, that RFRA would require the state and cities to privilege > > religious speech, was a very hard sell politically. > > > > Alan Brownstein > > > > From: religionlaw-boun...@lists.ucla.edu > > [religionlaw-boun...@lists.ucla.edu] > > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > > Sent: Saturday, June 20, 2009 11:18 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Or perhaps to strike down the refusal to extend the exemption to relevantly > > similar nonreligious speech (though I suppose Texas Monthly may be in some > > tension with that approach)? > > > > Mark Scarberry > > Pepperdine > > > > _ > > > > From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan > > Sent: Sat 6/20/2009 9:14 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > > > > > I agree with Mark that Smith allows the political process to deal with > > religious > > exemptions -- as long as those exemptions do not violate any other > constitutional > > guarantee. It may well be that the state has a choice as to how it can > > respond > to > > a claim that it discriminates in favor of religious speech. Instead of > > standing by > > the discriminatory exemption -- which would require a court to invalidate > > it -- it > > could generalize the exemption to apply to all expressive meetings. But if > > the > > state refuses to extend the exemption, doesn't that require
RE: "A Bible study group and a book club are not treated the same"
Can't answer the hypothetical, but we might note that the Draft cases during Vietnam suggest that elected officials might distinguish between the two. If persons with religious objections to war may be exempted from the draft, but not persons who feel war is a bad policy choice, then perhaps legislatures might grant persons motivated by religion statutory exemptions from picketing bans, but not those motivated by non-religious motives (and Seeger makes clear that religious motives must be broadly construed). Mark A. Graber >>> "Volokh, Eugene" 06/21/09 2:44 PM >>> A hypothetical: Alan wants to picket an abortion provider's home. Betty wants to picket an anti-abortion leader's home. Alan's motivation is religious, Betty's is secular philosophical. The city has a content-neutral ban on residential picketing, and the state has a RFRA. Can it really be the case that Alan would have a right to picket for religious reasons, but Betty wouldn't have a right to picket for secular reasons? Or that both would have this right, because RFRA would require invalidation of the entire scheme, as the least restrictive means of serving both the interest in protecting religious objectors and the interest in preventing discrimination between religious and secular speakers? (I assume that it's far from clear that a residential picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny applied in Frisby v. Schultz.) Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Sunday, June 21, 2009 10:53 AM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > Good point, Mark. I think statutes like the one reviewed in Texas Monthly that > facially discriminate in favor of religious speech are going to be struck > down. A > more generic religious liberty statute, like a state RFRA, is more > complicated. > > Let's suppose a city is told that it can not enforce its zoning ordinance > against a > Bible study group because of a state RFRA. Then a book club challenges the > application of the zoning ordinance to its activities on the grounds that > Bible study > groups had been held to be exempt from the zoning ordinance under RFRA. One > could argue that a court could resolve this dispute by refusing to allow the > city to > enforce the zoning ordinance against the book club without giving the RFRA > statute a narrow construction. But is that the best result? Now other cities > in the > state have to figure out how the state RFRA applies to their content neutral > laws > that regulate speech and the extent to which exempting religious speech from > those laws under RFRA requires them to grant additional exemptions to other > speakers. It might make more sense to construe the RFRA law not to require > exemptions for religious speech. > > As an aside, I might add that when California was considering a state RFRA > law, > proponents of the law conceded that it would not apply to content neutral > speech > regulations in part because such applications would be unconstitutional.The > contrary argument, that RFRA would require the state and cities to privilege > religious speech, was a very hard sell politically. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] > Sent: Saturday, June 20, 2009 11:18 PM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > Or perhaps to strike down the refusal to extend the exemption to relevantly > similar nonreligious speech (though I suppose Texas Monthly may be in some > tension with that approach)? > > Mark Scarberry > Pepperdine > > _ > > From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan > Sent: Sat 6/20/2009 9:14 PM > To: Law & Religion issues for Law Academics > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > I agree with Mark that Smith allows the political process to deal with > religious > exemptions -- as long as those exemptions do not violate any other > constitutional > guarantee. It may well be that the state has a choice as to how it can > respond to > a claim that it discriminates in favor of religious speech. Instead of > standing by > the discriminatory exemption -- which would require a court to invalidate it > -- it > could generalize the exemption to apply to all expressive meetings. But if the > state refuses to extend the exemption, doesn't that require a Court to > subject the > exemption to strict scrutiny and, presumably, to strike it down? > > Alan Brownstein > > From: religionlaw-boun.
Re: "A Bible study group and a book club are not treated the same"
It may also be said that most citizens in states with rfras have little idea that there are very real threats to their religious freedom that make rfras necessary. Brad Marci wrote: The big political picture here is interesting, because if religious entities overreach sufficiently, there will be a backlash against rfras generally. And since they are not constitutionally required, legislative repeal is possible. Of course, we are not there yet. While there is a burgeoning and passionate movement against RLUIPA's impact on residential neighborhoods, most citizens in states with rfras have little idea they exist, let alone impose on the public good. ___ 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: "A Bible study group and a book club are not treated the same"
No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 6/21/2009 11:17 AM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law & Religion issues for Law Academics' Subject: RE: "A Bible study group and a book club are not treated the same" Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original
Re: "A Bible study group and a book club are not treated the same"
On a more practical note, does anyone know who represented the parties in this Texas case, and whether one of them (or ideally, both together) might petition the court to replace these problematic seven words with an innocuous comparison that makes the same point, e.g., "Just as a student who is absent from school to observe a religious holiday and a student who is absent from school to attend a baseball game are not treated the same, neither are a halfway house operated for religious purposes and one that is not." ? Art Spitzer ** A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&; hmpgID=62&bcd=JunestepsfooterNO62) ___ 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: "A Bible study group and a book club are not treated the same"
I'm still waiting for concrete examples of very real threats to religious freedom without rfras. All examples welcome. Marci In a message dated 6/21/2009 6:32:23 P.M. Eastern Daylight Time, bp51...@windstream.net writes: It may also be said that most citizens in states with rfras have little idea that there are very real threats to their religious freedom that make rfras necessary. Brad **A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=62&bcd= JunestepsfooterNO62) ___ 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: still waiting for concrete examples
In a message dated 6/21/09 10:12:48 PM, hamilto...@aol.com writes: > I'm still waiting for concrete examples of very real threats to religious > freedom without rfras. All examples welcome. > Marci- I don't know whether you consider forcing a person to choose between shaving his religiously-mandated beard and losing his job to be a "very real threat to religious freedom," but my clients did, and we just won such a case in the DC Circuit under RFRA that we would have lost without it. The appeal, Potter v. District of Columbia, 558 F.3d 542 (DC Cir 2009), turned solely on civil procedure, but the district court's decision, 2007 WL 2892685 (DDC 2007), was on the merits -- that the District of Columbia had not carried its RFRA burden of showing that a "no facial hair" rule for firefighters and EMTs was required for safety (safety being a concededly compelling interest). The Fire Deoartment avoided losing on constitutional grounds, a la FOP v. City of Newark, by eliminating, in the middle of the case, its long-existing exemption for men who had a medical need to avoid shaving. Art Spitzer ACLU ** A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&; hmpgID=62&bcd=JunestepsfooterNO62) ___ 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: "A Bible study group and a book club are not treated the same"
What does this do, though, to the equality of speakers? Rosenberger, Lamb's Chapel, and other such cases (rightly in my view) took the view that speakers expressing religious viewpoints must be treated the same as speakers expressing secular viewpoints -- just as speakers expressing pacifist viewpoints must be treated the same as speakers expressing pro-war viewpoints, and just as in most situations (at least when the government is acting as sovereign rather than as proprietor) even different subject matters of speech must be treated equally. Can it really be that speakers expressing religiously *motivated* viewpoints may be treated differently from speakers expressing secularly *motivated* viewpoints, while speakers expressing religious viewpoints may not be treated differently from those expressing secular viewpoints? What if the policy in Rosenberger discriminated in favor of people motivated by secular beliefs, and against those motivated by religious beliefs -- surely that couldn't have been constitutional, right? Why would the opposite discrimination be constitutional? Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Mark Graber > Sent: Sunday, June 21, 2009 11:58 AM > To: religionlaw@lists.ucla.edu > Subject: RE: "A Bible study group and a book club are not treated the same" > > Can't answer the hypothetical, but we might note that the Draft cases during > Vietnam suggest that elected officials might distinguish between the two. If > persons with religious objections to war may be exempted from the draft, but > not > persons who feel war is a bad policy choice, then perhaps legislatures might > grant persons motivated by religion statutory exemptions from picketing bans, > but > not those motivated by non-religious motives (and Seeger makes clear that > religious motives must be broadly construed). > > Mark A. Graber > > >>> "Volokh, Eugene" 06/21/09 2:44 PM >>> > A hypothetical: Alan wants to picket an abortion provider's home. > Betty > wants to picket an anti-abortion leader's home. Alan's motivation is > religious, > Betty's is secular philosophical. The city has a content-neutral ban on > residential > picketing, and the state has a RFRA. > > Can it really be the case that Alan would have a right to picket for > religious > reasons, but Betty wouldn't have a right to picket for secular reasons? Or > that > both would have this right, because RFRA would require invalidation of the > entire > scheme, as the least restrictive means of serving both the interest in > protecting > religious objectors and the interest in preventing discrimination between > religious > and secular speakers? (I assume that it's far from clear that a residential > picketing ban would pass strict scrutiny, as opposed to the intermediate > scrutiny > applied in Frisby v. Schultz.) > > Eugene > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > > Sent: Sunday, June 21, 2009 10:53 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: "A Bible study group and a book club are not treated the same" > > > > Good point, Mark. I think statutes like the one reviewed in Texas Monthly > > that > > facially discriminate in favor of religious speech are going to be struck > > down. A > > more generic religious liberty statute, like a state RFRA, is more > > complicated. > > > > Let's suppose a city is told that it can not enforce its zoning ordinance > > against a > > Bible study group because of a state RFRA. Then a book club challenges the > > application of the zoning ordinance to its activities on the grounds that > > Bible > study > > groups had been held to be exempt from the zoning ordinance under RFRA. > One > > could argue that a court could resolve this dispute by refusing to allow > > the city > to > > enforce the zoning ordinance against the book club without giving the RFRA > > statute a narrow construction. But is that the best result? Now other > > cities in the > > state have to figure out how the state RFRA applies to their content neutral > laws > > that regulate speech and the extent to which exempting religious speech from > > those laws under RFRA requires them to grant additional exemptions to other > > speakers. It might make more sense to construe the RFRA law not to require > > exemptions for religious speech. > > > > As an aside, I might add that when California was considering a state RFRA > law, > > proponents of the law conceded that it would not apply to content neutral > speech > > regulations in part because such applications would be unconstitutional.The > > contrary argument, that RFRA would require the state and cities to privilege > > religious speech, was a very hard sell politically. > > > > Alan Br
RE: "A Bible study group and a book club are not treated the same"
Mark: Stop me if I'm wrong, but if RFRA requires that (1) restrictions on religiously motivated speech must be judged under strict scrutiny, and (2) any objection that secularly and religiously motivated speakers must be treated the same way must be resolved by extending the exception to both, then every speech restriction - including content-neutral ones, reasonable viewpoint-neutral ones in nonpublic fora, Pickering-consistent ones imposed by the government as employer, and so on - would have to be judged under strict scrutiny, at least so long as a single religious objector is found to it. Speech restrictions would thus be divided into two classes: Those that are judged under lower standards of review (when that's acceptable under Free Speech Clause doctrine) because they haven't yet been challenged by a religious objector, and those that are now judged under strict scrutiny as to all speakers because they have at least once been challenged by a religious objector. Can that be right (even if the government can cure this by excluding the restriction on a case-by-case basis from the scope of the RFRA)? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Sunday, June 21, 2009 5:00 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 6/21/2009 11:17 AM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law & Religion issues for Law Academics Subject: RE: "A Bible study group and a book club are not treated the same" If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat ex
