Re: A Concrete Example

[Steven Jamar]

I don't think I agree with this.  I think they all value religious liberty a
great deal, but view the religious as separate from the government in every
way.  And they are not sensitive to the range of religious experience and
don't have the imagination or desire to understand the religious experience
of the other.
It is not that they don't value religious liberty in the abstract (they
would not want an established church; they would not want their freedom to
believe and act in their religious traditions), but they don't understand
others.  And don't want to make the effort to understand.

So the accommodation/exception claim falls on deaf ears not because they
don't value religious liberty, but because they don't see it or value it in
the way it is being asserted.

This may be a distinction without much difference in result, but I think it
important to understand that unless we can connect our liberty arguments to
what they do value, we will not be able to reach them.

We all have this attribute.  Marci's take is quite different from mine in
many ways, but I think we can understand each other because we value the
idea and think about the idea of religious liberty.  But few people have the
time or inclination or training to do this sort of thinking and evaluating.

But they do value liberty.

Steve


On Tue, Jun 23, 2009 at 9:03 PM, Douglas Laycock  wrote:

> I think Chris is exactly right that some significant number of government
> actors place zero value on religious liberty.  Some others seem to place
> affirmative value on saying no exceptions and making people who want
> exceptions conform to the rules.
>
> Given either of these situations, if you want some value placed on
> religious liberty, then overriding instructions, judicially enforceable, are
> the only solution.
>
>
> --
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ) Inc.
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Re: A Concrete Example

[Douglas Laycock]

I think Chris is exactly right that some significant number of government 
actors place zero value on religious liberty.  Some others seem to place 
affirmative value on saying no exceptions and making people who want exceptions 
conform to the rules.   

Given either of these situations, if you want some value placed on religious 
liberty, then overriding instructions, judicially enforceable, are the only 
solution. 

Quoting Christopher Lund :

> I also intended to respond as well, although Doug as usual put it 
> better than I would have.
>
> Here's a cute example I thought of when reading the case.  Maybe it 
> even relates to what we're talking about.  I like scuba diving, and 
> had been pressuring my wife to go.  She had various fears: fears that 
> the oxygen supply would run out, fear of the bends * and fear that 
> the seal on the mask would fail 50 feet down (that's the factual 
> connection to Potter and why I thought of it).
>
> I tried to convince her that her fears were totally unreasonable, 
> that the risk of a scuba diving accident was zero.  It didn't work.  
> She knew it wasn't true; it couldn't be true.  And I realized the 
> problem was not that she was overestimating the risk.  The problem 
> was that she thought the value of a scuba dive was zero.  And if you 
> think the value of a scuba dive is zero, then a one-in-a-billion 
> chance of a scuba accident would make the whole thing not worth it.
>
> I think my wife's mindset toward scuba is similar to the mindset of 
> some toward religious liberty.  If I entirely don't get Islam and am 
> unwilling to try, maybe I won't really appreciate the harm to Muslim 
> firefighters in having to be clean-shaven.  Implicitly at least, I'll 
> put a zero value on it, and then any chance of a horrific consequence 
> will be enough to outweigh the religious claim.  There may be a 
> one-in-a-thousand chance that beards affect the wearing of the mask 
> at all, and a one-in-a-million chance that any such effect would 
> cause injury.  I still would bar the claim * and it really doesn't 
> matter what the numbers are, as long as they are nonzero or there's a 
> nonzero probability of them being nonzero.  And that's not 
> discriminatory animus; that's not even irrational, given its 
> premises.  But it is indeed premised on the assumption, tacit and 
> thus unobservable in the federal reporters, that religious liberty 
> has no value.  I think RFRA was meant to disrupt that assumption, and 
> rightly so in my opinion.
>
> Best,
> Chris
>
> P.S.  This should be obvious from my post, but I am not trying to 
> equate the value of scuba diving with the value of religious liberty.
>
> __
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS  39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)
> Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402[1]
>
>
 layco...@umich.edu 6/22/2009 11:14 PM >>>
>
>
> Pretext suggests they did it out of hostility to Islam, or to 
> religion.  Maybe so.  Far more likely, they made a judgment in which 
> they placed zero value on religous liberty, and focused only on 
> whatever safety risk there was, however small or remote.  Facts 
> matter, as Marci said, and the dominant fact here is 20 years of 
> experience with no one hurt.  If any one had ever been hurt, that 
> would have been the city's exhibit A.
> Quoting hamilto...@aol.com:
>
>>
>> Art--  We may only be talking to each other at this point, but the  facts
>> matter in these cases.  So why do you think DC moved to an  across-the-board
>> rule regarding beards and why does the rule appear in fire  companies across
>> the country?  If it was all a pretext, why not just give  up and let
>> everyone wear a beard?
>>
>>
>> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
>> artspit...@aol.com writes:
>>
>> In a message dated 6/22/09 1:31:13 PM, Hamilton02  writes:
>>
>>
>>
>> I have to ask Art one question--  It seems quite  clear from the record
>> that there really is a danger to those with facial  hair in responding to
>> emergencies
>>
>>
>>
>> Those not interested in the minutiae  of the case can press delete now.
>> I've pasted below a short (500 word)  excerpt on safety from my 
>> opposition to
>> the Fire Department's petition for  rehearing.  The petition was denied.
>>
>> Art
>>
>> III. This Case Does Not Present a  Serious Issue of Public Safety.
>>
>> The District  urges the Court to apply a ?particularly strong? preference
>> for resolving this  case on the merits, because ?public safety is at issue.?
>>   Pet. at  8.  But the district court's judgment poses no threat to public
>> safety.
>> The D.C. Fire Department, as a matter of  official policy, allowed hundreds
>> of firefighters to  wear beards from sometime before 1973 until mid-2005.
>> [Citation.] While  initially limited to men with a skin condition, fro

RE: A Concrete Example

[Brownstein, Alan]

Eric asks a good question. I don't know anything about architecture but my 
guess is that we would conclude that the message communicated by architectural 
resources is often incidental to the reason we are protecting them (e.g. we 
protect older examples of the architecture but not more contemporary examples). 
I think that argument can be made with regard to the expressive content of some 
religious practices.  If anyone is interested I could offer some examples.
But that argument is much harder to make when courts repeatedly insist that 
regulations which disfavor some architectural style (or expressive religious 
activity) constitute prohibited viewpoint discrimination. Given that 
background, I would think a law that provides preferential protection to such a 
style would be constitutionally problematic and subject to challenge.
The argument is also much harder to make when the physical manifestation of 
what is being regulated constitutes a conventional means of expressing ideas, 
such as a book or a song or an expressive meeting, as opposed to physical 
manifestations which are not typically understood to be conventionally 
expressive in nature, such as  a spotted owl or a pond.
Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Tuesday, June 23, 2009 4:01 PM
To: Law & Religion issues for Law Academics; hamilto...@aol.com; 
layco...@umich.edu
Subject: RE: A Concrete Example

I thought everyone would be interested in Prof. Hamilton's op-ed on Barr and 
Potter, which seems inspired at least in part by the discussion here:
http://writ.lp.findlaw.com/hamilton/20090623.html
I like Prof. Lund's metaphor because it gets at the point of RFRA, RLUIPA, the 
state RFRAs, the UDHR, the ICCPR etc.: placing value on the autonomy of the 
human conscience and the physical manifestations thereof.  Those physical 
manifestations may sometimes also be expressive, but they also have value 
completely apart from their expressive or nonexpressive nature.
That's why having a law protecting the manifestations of conscience is not such 
a strange thing in the land use context.  Through land use laws we protect (and 
thereby attribute value to) wetlands, endangered species, historic and 
archaeological resources, and many other goods, often through overriding 
federal or state level statutes.  Some of these other protected goods also 
happen to have expressive content (e.g. many historic and architectural 
resources).  Do we think that the statutes protecting those goods should be 
invalidated because the government doesn't at the same time protect all 
analogous forms of expression?
Eric

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, June 23, 2009 12:32 PM
To: hamilto...@aol.com; layco...@umich.edu
Cc: religionlaw@lists.ucla.edu
Subject: A Concrete Example

I also intended to respond as well, although Doug as usual put it better than I 
would have.

Here's a cute example I thought of when reading the case.  Maybe it even 
relates to what we're talking about.  I like scuba diving, and had been 
pressuring my wife to go.  She had various fears: fears that the oxygen supply 
would run out, fear of the bends - and fear that the seal on the mask would 
fail 50 feet down (that's the factual connection to Potter and why I thought of 
it).

I tried to convince her that her fears were totally unreasonable, that the risk 
of a scuba diving accident was zero.  It didn't work.  She knew it wasn't true; 
it couldn't be true.  And I realized the problem was not that she was 
overestimating the risk.  The problem was that she thought the value of a scuba 
dive was zero.  And if you think the value of a scuba dive is zero, then a 
one-in-a-billion chance of a scuba accident would make the whole thing not 
worth it.

I think my wife's mindset toward scuba is similar to the mindset of some toward 
religious liberty.  If I entirely don't get Islam and am unwilling to try, 
maybe I won't really appreciate the harm to Muslim firefighters in having to be 
clean-shaven.  Implicitly at least, I'll put a zero value on it, and then any 
chance of a horrific consequence will be enough to outweigh the religious 
claim.  There may be a one-in-a-thousand chance that beards affect the wearing 
of the mask at all, and a one-in-a-million chance that any such effect would 
cause injury.  I still would bar the claim - and it really doesn't matter what 
the numbers are, as long as they are nonzero or there's a nonzero probability 
of them being nonzero.  And that's not discriminatory animus; that's not even 
irrational, given its premises.  But it is indeed premised on the assumption, 
tacit and thus unobservable in the federal reporters, that religious liberty 
has no value.  I think RFRA was 

RE: A Concrete Example

[Eric Rassbach]

I thought everyone would be interested in Prof. Hamilton's op-ed on Barr and 
Potter, which seems inspired at least in part by the discussion here:
http://writ.lp.findlaw.com/hamilton/20090623.html
I like Prof. Lund's metaphor because it gets at the point of RFRA, RLUIPA, the 
state RFRAs, the UDHR, the ICCPR etc.: placing value on the autonomy of the 
human conscience and the physical manifestations thereof.  Those physical 
manifestations may sometimes also be expressive, but they also have value 
completely apart from their expressive or nonexpressive nature.
That's why having a law protecting the manifestations of conscience is not such 
a strange thing in the land use context.  Through land use laws we protect (and 
thereby attribute value to) wetlands, endangered species, historic and 
archaeological resources, and many other goods, often through overriding 
federal or state level statutes.  Some of these other protected goods also 
happen to have expressive content (e.g. many historic and architectural 
resources).  Do we think that the statutes protecting those goods should be 
invalidated because the government doesn't at the same time protect all 
analogous forms of expression?
Eric

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, June 23, 2009 12:32 PM
To: hamilto...@aol.com; layco...@umich.edu
Cc: religionlaw@lists.ucla.edu
Subject: A Concrete Example

I also intended to respond as well, although Doug as usual put it better than I 
would have.

Here's a cute example I thought of when reading the case.  Maybe it even 
relates to what we're talking about.  I like scuba diving, and had been 
pressuring my wife to go.  She had various fears: fears that the oxygen supply 
would run out, fear of the bends - and fear that the seal on the mask would 
fail 50 feet down (that's the factual connection to Potter and why I thought of 
it).

I tried to convince her that her fears were totally unreasonable, that the risk 
of a scuba diving accident was zero.  It didn't work.  She knew it wasn't true; 
it couldn't be true.  And I realized the problem was not that she was 
overestimating the risk.  The problem was that she thought the value of a scuba 
dive was zero.  And if you think the value of a scuba dive is zero, then a 
one-in-a-billion chance of a scuba accident would make the whole thing not 
worth it.

I think my wife's mindset toward scuba is similar to the mindset of some toward 
religious liberty.  If I entirely don't get Islam and am unwilling to try, 
maybe I won't really appreciate the harm to Muslim firefighters in having to be 
clean-shaven.  Implicitly at least, I'll put a zero value on it, and then any 
chance of a horrific consequence will be enough to outweigh the religious 
claim.  There may be a one-in-a-thousand chance that beards affect the wearing 
of the mask at all, and a one-in-a-million chance that any such effect would 
cause injury.  I still would bar the claim - and it really doesn't matter what 
the numbers are, as long as they are nonzero or there's a nonzero probability 
of them being nonzero.  And that's not discriminatory animus; that's not even 
irrational, given its premises.  But it is indeed premised on the assumption, 
tacit and thus unobservable in the federal reporters, that religious liberty 
has no value.  I think RFRA was meant to disrupt that assumption, and rightly 
so in my opinion.

Best,
Chris

P.S.  This should be obvious from my post, but I am not trying to equate the 
value of scuba diving with the value of religious liberty.

__
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

>>> layco...@umich.edu 6/22/2009 11:14 PM >>>

Pretext suggests they did it out of hostility to Islam, or to religion.  Maybe 
so.  Far more likely, they made a judgment in which they placed zero value on 
religous liberty, and focused only on whatever safety risk there was, however 
small or remote.  Facts matter, as Marci said, and the dominant fact here is 20 
years of experience with no one hurt.  If any one had ever been hurt, that 
would have been the city's exhibit A.

Quoting hamilto...@aol.com:

>
> Art--  We may only be talking to each other at this point, but the  facts
> matter in these cases.  So why do you think DC moved to an  across-the-board
> rule regarding beards and why does the rule appear in fire  companies across
> the country?  If it was all a pretext, why not just give  up and let
> everyone wear a beard?
>
>
> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
> artspit...@aol.com writes:
>
> In a message d

A Concrete Example

[Christopher Lund]

I also intended to respond as well, although Doug as usual put it better than I 
would have.
 
Here's a cute example I thought of when reading the case.  Maybe it even 
relates to what we're talking about.  I like scuba diving, and had been 
pressuring my wife to go.  She had various fears: fears that the oxygen supply 
would run out, fear of the bends * and fear that the seal on the mask would 
fail 50 feet down (that's the factual connection to Potter and why I thought of 
it).
 
I tried to convince her that her fears were totally unreasonable, that the risk 
of a scuba diving accident was zero.  It didn't work.  She knew it wasn't true; 
it couldn't be true.  And I realized the problem was not that she was 
overestimating the risk.  The problem was that she thought the value of a scuba 
dive was zero.  And if you think the value of a scuba dive is zero, then a 
one-in-a-billion chance of a scuba accident would make the whole thing not 
worth it.
 
I think my wife's mindset toward scuba is similar to the mindset of some toward 
religious liberty.  If I entirely don't get Islam and am unwilling to try, 
maybe I won't really appreciate the harm to Muslim firefighters in having to be 
clean-shaven.  Implicitly at least, I'll put a zero value on it, and then any 
chance of a horrific consequence will be enough to outweigh the religious 
claim.  There may be a one-in-a-thousand chance that beards affect the wearing 
of the mask at all, and a one-in-a-million chance that any such effect would 
cause injury.  I still would bar the claim * and it really doesn't matter what 
the numbers are, as long as they are nonzero or there's a nonzero probability 
of them being nonzero.  And that's not discriminatory animus; that's not even 
irrational, given its premises.  But it is indeed premised on the assumption, 
tacit and thus unobservable in the federal reporters, that religious liberty 
has no value.  I think RFRA was meant to disrupt that assumption, and rightly 
so in my opinion.
 
Best,
Chris
 
P.S.  This should be obvious from my post, but I am not trying to equate the 
value of scuba diving with the value of religious liberty.
 
__
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 


>>> layco...@umich.edu 6/22/2009 11:14 PM >>>


Pretext suggests they did it out of hostility to Islam, or to religion.  Maybe 
so.  Far more likely, they made a judgment in which they placed zero value on 
religous liberty, and focused only on whatever safety risk there was, however 
small or remote.  Facts matter, as Marci said, and the dominant fact here is 20 
years of experience with no one hurt.  If any one had ever been hurt, that 
would have been the city's exhibit A.
Quoting hamilto...@aol.com: 

>
> Art--  We may only be talking to each other at this point, but the  facts
> matter in these cases.  So why do you think DC moved to an  across-the-board
> rule regarding beards and why does the rule appear in fire  companies across
> the country?  If it was all a pretext, why not just give  up and let
> everyone wear a beard?
>
>
> In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
> artspit...@aol.com writes:
>
> In a message dated 6/22/09 1:31:13 PM, Hamilton02  writes:
>
>
>
> I have to ask Art one question--  It seems quite  clear from the record
> that there really is a danger to those with facial  hair in responding to
> emergencies
>
>
>
> Those not interested in the minutiae  of the case can press delete now.
> I've pasted below a short (500 word)  excerpt on safety from my opposition to
> the Fire Department's petition for  rehearing.  The petition was denied.
>
> Art
>
> III. This Case Does Not Present a  Serious Issue of Public Safety.
>
> The District  urges the Court to apply a ?particularly strong? preference
> for resolving this  case on the merits, because ?public safety is at issue.?
>   Pet. at  8.  But the district court's judgment poses no threat to public
> safety.
> The D.C. Fire Department, as a matter of  official policy, allowed hundreds
> of firefighters to  wear beards from sometime before 1973 until mid-2005.
> [Citation.] While  initially limited to men with a skin condition, from 1994
> until 2005  all employees were permitted to wear  beards, and many did.
> [Citation omitted.] It is uncontradicted that these  thousands of 
> man-years of
> bearded firefighting did not result in a single  safety problem. [Citation.]
> At the very outset of  this litigation, the retired Chief of Safety of the
> F.D.N.Y. explained in  detail why facial hair does not undermine the safety
> of an SCBA  [Self-Contained Breathing Apparatus].  [Citation.]  Faced with
> that  compelling evidence, the Fire Department did not appeal the preliminary
>  injunction issued at that time, and made no effo

RE: "A Bible study group and a book club are not treated the same"

[Volokh, Eugene]

   Well, I'd think that while the Court didn't focus closely on the 
cases, it did think about the laws it was pointing to - and surely must have 
realized that those laws were riddled with exceptions.  And what exactly is it 
in the Court's opinion that "says" that "the compelling interest test applies 
to any law that has exceptions"?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, June 23, 2009 7:40 AM
To: religionlaw@lists.ucla.edu
Subject: RE: "A Bible study group and a book club are not treated the same"


No doubt Smith has language pointing in more than one direction.  But I would 
not rely on this string cite to prove anything.  This is a list of cases in 
which exemptions were sought, and the Court did not think about these examples 
any further than that.  The best evidence of this is that the district court 
opinion in Lukumi is on this list, an opinion they later reversed 9-0.

In the debate over whether to file a cert petition in Lukumi, there were folks 
who said the Court had already decided the case in this string cite.  That was 
the one argument I never worried about.  They didn't know anything about the 
lower court cases in this string cite, and they didn't decide anything about 
them.

Quoting "Volokh, Eugene" :

>Hmm - does Smith really say that the compelling
> interest test applies to any law that has exceptions?  After all,
> consider the majority's list of counterexamples:
>
> The rule respondents favor would open the prospect of
> constitutionally required religious exemptions from civic obligations
> of almost every conceivable kind -- ranging from [p889] compulsory
> military service, see, e.g., Gillette v. United States, 401 U.S.
> 437 (1971),
> to the payment of taxes, see, e.g., United States v. Lee, supra; to
> health and safety regulation such as manslaughter and child neglect
> laws, see, e.g., Funkhouser v. State, 763 P.2d 695
> (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v.
> State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g.,
> Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878
> F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312
> U.S. 569
> (1941); to social welfare legislation such as minimum wage laws, see
> Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S.
> 290 (1985),
> child labor laws, see Prince v. Massachusetts, 321 U.S.
> 158 (1944),
> animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc.
> v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v.
> Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S.
> 942 (1949),
> environmental protection laws, see United States v. Little, 638
> F.Supp. 337 (Mont.1986), and laws providing for equality of
> opportunity for the races, see, e.g., Bob Jones University v. United
> States, 461 U.S.
> 574,
> 603-604 (1983). The First
> Amendment's
> protection of religious liberty does not require this.
>
> Every one of these is riddled with exceptions, no?  Even
> peyote bans could be said to have exceptions (for instance, for law
> enforcement purposes, or perhaps for research), depending on how you
> decide what's the rule and what's an exception (itself not a
> determinate inquiry, it seems to me).
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas
> Laycock
> Sent: Monday, June 22, 2009 8:25 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: "A Bible study group and a book club are not treated the same"
>
>
> How many examples there are depends on what the Supreme Court finally
> says that Smith means.  If Marci gets her way, and Smith requires
> anti-religious motive that can be proved in court, then there are
> many examples.  If the opinion means what it says, and the compelling
> interest test applies to any law that has exceptions, then there
> aren't so many examples.  Legislative exceptions are very common, and
> when there are no exceptions, there is often a compelling state
> interest -- that's why they refused all exceptions.
>
> But even if no exceptions is the standard, there are still examples.
> The fire fighter case we have been discussing is one.  Barr v. City
> of Sinton is another.   RFRAs also simplify the litigation even in
> cases where there are exceptions that would support a free exercise
> claim.

RE: still waiting for concrete examples

[Douglas Laycock]

Kim is right.  Congress fixed this one by statute. 

Quoting Kimberlee Wood Colby :

> Perhaps this example has already been mentioned but Goldman v. Weinberger,
> 475 US 503, 505 (1986), presents a good example of a religious accommodation
> that was working well until someone essentially decided to retaliate against
> the religious person by revoking the accommodation.  Goldman was an Air
> Force officer who needed to wear a yarmulke because of his religious faith.
> As the Supreme Court described the facts:
>
> "Until 1981, petitioner was not prevented from wearing his yarmulke on the
> base. He avoided controversy by remaining close to his duty station in the
> health clinic and by wearing his service cap over the yarmulke when out of
> doors. But in April 1981, after he testified as a defense witness at a
> court-martial wearing his yarmulke but not his service cap, opposing counsel
> lodged a complaint with Colonel Joseph Gregory, the Hospital Commander,
> arguing that petitioner's practice of wearing his yarmulke was a violation
> of Air Force Regulation (AFR) 35-10. This regulation states in pertinent
> part that “[h]eadgear will not be worn ... [w]hile indoors except by armed
> security police in the performance of their duties.” AFR 35-10, ¶
> 1-6.h(2)(f) (1980).
>
> Colonel Gregory informed petitioner that wearing a yarmulke while on duty
> does indeed violate AFR 35-10, and ordered him not to violate this
> regulation outside the hospital. Although virtually all of petitioner's time
> on the base was spent in the hospital, he refused. Later, after petitioner's
> attorney protested to the Air Force General Counsel, Colonel Gregory revised
> his order to prohibit petitioner from wearing the yarmulke even in the
> hospital. Petitioner's request to report for duty in civilian clothing
> pending legal resolution of the issue was denied. The next day he received a
> formal letter of reprimand, and was warned that failure to obey AFR 35-10
> could subject him to a court-martial. Colonel Gregory also withdrew a
> recommendation that petitioner's application to extend the term of his
> active service be approved, and substituted a negative recommendation."
>
> The Court then held against Goldman based on the military's interest in
> uniformity.  I believe that Congress subsequently enacted an accommodation
> but am not sure about that.
>
> Kim Colby
>
>   _
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
> Sent: Tuesday, June 23, 2009 9:46 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: still waiting for concrete examples
>
>
>
> Doug could also have pointed to many such instances in the analogous area of
> religious accommodation of employees. In both reported and unreported cases
> it is quite common for a new supervisor to cancel an accommodation for no
> apparent reason although proving an illicit motive is often impossible. In
> some cases, the cancelled accommodation may have been improvidentally
> granted but in most cases I have seen the best that can be said is that the
> supervisor is simply flexing muscle to show who is in charge
> Marc
>
> - Original Message -
> From: religionlaw-boun...@lists.ucla.edu
> 
> To: religionlaw@lists.ucla.edu 
> Sent: Mon Jun 22 23:49:38 2009
> Subject: Re: still waiting for concrete examples
>
> This e-mail reveals a very important fact.  A new chief arrived who said
> rules are rules and no exceptions.  This is a very common story --
> exemptions are granted and cause no problems, the institution functions just
> fine and its employees, students, clients, whatever, can practice their
> religion.  Then a new administrator comes in and says screw this crap about
> exception; there aren't going to be any exceptions.
>
> That's the story here. That's the story in Mozert v. Hawkins County Board of
> Ed.  That's the story in the case of the kid at the University of Nebraska
> who didn't want to live in the dorm.  I don't remember for sure, but I think
> that was the case in Swanson in the 10th Circuit, where a home schooler
> wanted to take a course or too at the the school.
>
> Quoting artspit...@aol.com:
>
>>> Marci asks:   Why [didn't the Fire Dep't] just give up and let everyone
>>> wear a beard?
>>>
>> Because (a) that would mean admitting they were wrong, and (b) a Fire
> Dep't
>> is a paramilitary organization and the two new chiefs from out of town who
>> imposed this policy think beards look scuzzy -- the new chief who first
>> imposed this "safety" policy simultaneously banned dreadlocks and
> religious
>> headcoverings, with no plausible safety rationale.
>>
>> To give the Department more credit (perhaps more than due), it's following
>> a policy of erring on the side of safety.   But for RFRA, that policy
> would
>> apply to all firefighters.   Under RFRA, the Department  should have
> thought
>> seriously about whether it could accommodate a few beards.   But the Fire
>> 

RE: still waiting for concrete examples

[Kimberlee Wood Colby]

Perhaps this example has already been mentioned but Goldman v. Weinberger,
475 US 503, 505 (1986), presents a good example of a religious accommodation
that was working well until someone essentially decided to retaliate against
the religious person by revoking the accommodation.  Goldman was an Air
Force officer who needed to wear a yarmulke because of his religious faith.
As the Supreme Court described the facts:
 
"Until 1981, petitioner was not prevented from wearing his yarmulke on the
base. He avoided controversy by remaining close to his duty station in the
health clinic and by wearing his service cap over the yarmulke when out of
doors. But in April 1981, after he testified as a defense witness at a
court-martial wearing his yarmulke but not his service cap, opposing counsel
lodged a complaint with Colonel Joseph Gregory, the Hospital Commander,
arguing that petitioner's practice of wearing his yarmulke was a violation
of Air Force Regulation (AFR) 35-10. This regulation states in pertinent
part that “[h]eadgear will not be worn ... [w]hile indoors except by armed
security police in the performance of their duties.” AFR 35-10, ¶
1-6.h(2)(f) (1980).

Colonel Gregory informed petitioner that wearing a yarmulke while on duty
does indeed violate AFR 35-10, and ordered him not to violate this
regulation outside the hospital. Although virtually all of petitioner's time
on the base was spent in the hospital, he refused. Later, after petitioner's
attorney protested to the Air Force General Counsel, Colonel Gregory revised
his order to prohibit petitioner from wearing the yarmulke even in the
hospital. Petitioner's request to report for duty in civilian clothing
pending legal resolution of the issue was denied. The next day he received a
formal letter of reprimand, and was warned that failure to obey AFR 35-10
could subject him to a court-martial. Colonel Gregory also withdrew a
recommendation that petitioner's application to extend the term of his
active service be approved, and substituted a negative recommendation."
 
The Court then held against Goldman based on the military's interest in
uniformity.  I believe that Congress subsequently enacted an accommodation
but am not sure about that.
 
Kim Colby

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Tuesday, June 23, 2009 9:46 AM
To: religionlaw@lists.ucla.edu
Subject: Re: still waiting for concrete examples



Doug could also have pointed to many such instances in the analogous area of
religious accommodation of employees. In both reported and unreported cases
it is quite common for a new supervisor to cancel an accommodation for no
apparent reason although proving an illicit motive is often impossible. In
some cases, the cancelled accommodation may have been improvidentally
granted but in most cases I have seen the best that can be said is that the
supervisor is simply flexing muscle to show who is in charge
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu

To: religionlaw@lists.ucla.edu 
Sent: Mon Jun 22 23:49:38 2009
Subject: Re: still waiting for concrete examples

This e-mail reveals a very important fact.  A new chief arrived who said
rules are rules and no exceptions.  This is a very common story --
exemptions are granted and cause no problems, the institution functions just
fine and its employees, students, clients, whatever, can practice their
religion.  Then a new administrator comes in and says screw this crap about
exception; there aren't going to be any exceptions. 

That's the story here. That's the story in Mozert v. Hawkins County Board of
Ed.  That's the story in the case of the kid at the University of Nebraska
who didn't want to live in the dorm.  I don't remember for sure, but I think
that was the case in Swanson in the 10th Circuit, where a home schooler
wanted to take a course or too at the the school.

Quoting artspit...@aol.com:

>> Marci asks:   Why [didn't the Fire Dep't] just give up and let everyone
>> wear a beard?
>>
> Because (a) that would mean admitting they were wrong, and (b) a Fire
Dep't
> is a paramilitary organization and the two new chiefs from out of town who
> imposed this policy think beards look scuzzy -- the new chief who first
> imposed this "safety" policy simultaneously banned dreadlocks and
religious
> headcoverings, with no plausible safety rationale.
>
> To give the Department more credit (perhaps more than due), it's following
> a policy of erring on the side of safety.   But for RFRA, that policy
would
> apply to all firefighters.   Under RFRA, the Department  should have
thought
> seriously about whether it could accommodate a few beards.   But the Fire
> Chief's attitude was "orders are orders."   Much as Judge Robertson
> apparently doesn't like RFRA, he took his responsibility more
> seriously and found
> that in a department with hundreds of firefighters, of course a few could
be
> accommodated

RE: "A Bible study group and a book club are not treated the same"

[Douglas Laycock]

No doubt Smith has language pointing in more than one direction.  But I would 
not rely on this string cite to prove anything.  This is a list of cases in 
which exemptions were sought, and the Court did not think about these examples 
any further than that.  The best evidence of this is that the district court 
opinion in Lukumi is on this list, an opinion they later reversed 9-0. 

In the debate over whether to file a cert petition in Lukumi, there were folks 
who said the Court had already decided the case in this string cite.  That was 
the one argument I never worried about.  They didn't know anything about the 
lower court cases in this string cite, and they didn't decide anything about 
them. 

Quoting "Volokh, Eugene" :

>Hmm - does Smith really say that the compelling 
> interest test applies to any law that has exceptions?  After all, 
> consider the majority's list of counterexamples:
>
> The rule respondents favor would open the prospect of 
> constitutionally required religious exemptions from civic obligations 
> of almost every conceivable kind -- ranging from [p889] compulsory 
> military service, see, e.g., Gillette v. United States, 401 U.S. 
> 437 (1971), 
> to the payment of taxes, see, e.g., United States v. Lee, supra; to 
> health and safety regulation such as manslaughter and child neglect 
> laws, see, e.g., Funkhouser v. State, 763 P.2d 695 
> (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. 
> State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., 
> Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 
> F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 
> U.S. 569 
> (1941); to social welfare legislation such as minimum wage laws, see 
> Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 
> 290 (1985), 
> child labor laws, see Prince v. Massachusetts, 321 U.S. 
> 158 (1944), 
> animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. 
> v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. 
> Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 
> 942 (1949), 
> environmental protection laws, see United States v. Little, 638 
> F.Supp. 337 (Mont.1986), and laws providing for equality of 
> opportunity for the races, see, e.g., Bob Jones University v. United 
> States, 461 U.S. 
> 574, 
> 603-604 (1983). The First 
> Amendment's[7] 
> protection of religious liberty does not require this.
>
> Every one of these is riddled with exceptions, no?  Even 
> peyote bans could be said to have exceptions (for instance, for law 
> enforcement purposes, or perhaps for research), depending on how you 
> decide what's the rule and what's an exception (itself not a 
> determinate inquiry, it seems to me).
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas 
> Laycock
> Sent: Monday, June 22, 2009 8:25 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: "A Bible study group and a book club are not treated the same"
>
>
> How many examples there are depends on what the Supreme Court finally 
> says that Smith means.  If Marci gets her way, and Smith requires 
> anti-religious motive that can be proved in court, then there are 
> many examples.  If the opinion means what it says, and the compelling 
> interest test applies to any law that has exceptions, then there 
> aren't so many examples.  Legislative exceptions are very common, and 
> when there are no exceptions, there is often a compelling state 
> interest -- that's why they refused all exceptions.
>
> But even if no exceptions is the standard, there are still examples.  
> The fire fighter case we have been discussing is one.  Barr v. City 
> of Sinton is another.   RFRAs also simplify the litigation even in 
> cases where there are exceptions that would support a free exercise 
> claim.
>
> Quoting hamilto...@aol.com:
>
>>
>> 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/100126575x1221323000x

Re: still waiting for concrete examples

[Marc Stern]

Doug could also have pointed to many such instances in the analogous area of 
religious accommodation of employees. In both reported and unreported cases it 
is quite common for a new supervisor to cancel an accommodation for no apparent 
reason although proving an illicit motive is often impossible. In some cases, 
the cancelled accommodation may have been improvidentally  granted but in most 
cases I have seen the best that can be said is that the supervisor is simply 
flexing muscle to show who is in charge
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Mon Jun 22 23:49:38 2009
Subject: Re: still waiting for concrete examples

This e-mail reveals a very important fact.  A new chief arrived who said rules 
are rules and no exceptions.  This is a very common story -- exemptions are 
granted and cause no problems, the institution functions just fine and its 
employees, students, clients, whatever, can practice their religion.  Then a 
new administrator comes in and says screw this crap about exception; there 
aren't going to be any exceptions.  

That's the story here. That's the story in Mozert v. Hawkins County Board of 
Ed.  That's the story in the case of the kid at the University of Nebraska who 
didn't want to live in the dorm.  I don't remember for sure, but I think that 
was the case in Swanson in the 10th Circuit, where a home schooler wanted to 
take a course or too at the the school. 

Quoting artspit...@aol.com:

>> Marci asks:   Why [didn't the Fire Dep't] just give up and let everyone
>> wear a beard?
>>
> Because (a) that would mean admitting they were wrong, and (b) a Fire Dep't
> is a paramilitary organization and the two new chiefs from out of town who
> imposed this policy think beards look scuzzy -- the new chief who first
> imposed this "safety" policy simultaneously banned dreadlocks and religious
> headcoverings, with no plausible safety rationale.
>
> To give the Department more credit (perhaps more than due), it's following
> a policy of erring on the side of safety.   But for RFRA, that policy would
> apply to all firefighters.   Under RFRA, the Department  should have thought
> seriously about whether it could accommodate a few beards.   But the Fire
> Chief's attitude was "orders are orders."   Much as Judge Robertson
> apparently doesn't like RFRA, he took his responsibility more 
> seriously and found
> that in a department with hundreds of firefighters, of course a few could be
> accommodated, even assuming that without accommodation their safety would be
> compromised in the rare hypothetical situation (it's never yet occurred)
> posited by the Department.
>
> I was puzzled by the Judge's complaint about RFRA.   It may have its
> problems, but the fact that it "imposes upon the courts of the United 
> States the
> duty of 'striking sensible balances between
> ...   competing ... interests,'? is hardly a legitimate ground for
> complaint.   Judges strike (hopefully) sensible balances between 
> competing interests
> every time they sit in equity.
>
> Art S.
>
>
> In a message dated 6/22/09 9:09:42 PM, hamilto...@aol.com writes:
>
>
>> Art--  We may only be talking to each other at this point, but the facts
>> matter in these cases.  So why do you think DC moved to an across-the-board
>> rule regarding beards and why does the rule appear in fire companies
>> across the country?  If it was all a pretext, why not just give up and let
>> everyone wear a beard?
>>   
>>   
>>  In a message dated 6/22/2009 9:03:23 P.M. Eastern Daylight Time,
>> artspit...@aol.com writes:
>>
>>  In a message dated 6/22/09 1:31:13 PM, Hamilton02 writes:
>>
>>
>> I have to ask Art one question--  It seems quite clear from the record
>> that there really is a danger to those with facial hair in responding to
>> emergencies
>>
>>
>> Those not interested in the minutiae of the case can press delete now. 
>> I've pasted below a short (500 word) excerpt on safety from my opposition to
>> the Fire Department's petition for rehearing.  The petition was denied.
>>
>> Art
>>
>> III. This Case Does Not Present a Serious Issue of Public Safety.
>>
>>  The District urges the Court to apply a ?particularly strong?
>> preference for resolving this case on the merits, because ?public 
>> safety is at
>> issue.?  Pet. at 8.  But the district court's judgment poses no threat to
>> public safety.
>>  The D.C. Fire Department, as a matter of official policy, allowed
>> hundreds of firefighters to wear beards from sometime before 1973 until
>> mid-2005. [Citation.] While initially limited to men with a skin 
>> condition, from
>> 1994 until 2005 all employees were permitted to wear beards, and many did.
>> [Citation omitted.] It is uncontradicted that these thousands of man-years
>> of bearded firefighting did not result in a single safety problem.
>> [Citation.]
>>  At the very outset of this litigation, the retired Chief of Safety o

RE: "A Bible study group and a book club are not treated the same"

[Volokh, Eugene]

   Hmm - does Smith really say that the compelling interest test 
applies to any law that has exceptions?  After all, consider the majority's 
list of counterexamples:

The rule respondents favor would open the prospect of constitutionally required 
religious exemptions from civic obligations of almost every conceivable kind -- 
ranging from [p889] compulsory military service, see, e.g., Gillette v. United 
States, 401 U.S. 437 
(1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to 
health and safety regulation such as manslaughter and child neglect laws, see, 
e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory 
vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 
(1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 
U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New 
Hampshire, 312 U.S. 
569 (1941); to social 
welfare legislation such as minimum wage laws, see Susan and Tony Alamo 
Foundation v. Secretary of Labor, 471 U.S. 
290 (1985), child 
labor laws, see Prince v. Massachusetts, 321 U.S. 
158 (1944), animal 
cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of 
Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 
S.E.2d 179, appeal dism'd, 336 U.S. 
942 (1949), 
environmental protection laws, see United States v. Little, 638 F.Supp. 337 
(Mont.1986), and laws providing for equality of opportunity for the races, see, 
e.g., Bob Jones University v. United States, 461 U.S. 
574, 603-604 (1983). 
The First 
Amendment's 
protection of religious liberty does not require this.

Every one of these is riddled with exceptions, no?  Even peyote 
bans could be said to have exceptions (for instance, for law enforcement 
purposes, or perhaps for research), depending on how you decide what's the rule 
and what's an exception (itself not a determinate inquiry, it seems to me).

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, June 22, 2009 8:25 PM
To: religionlaw@lists.ucla.edu
Subject: Re: "A Bible study group and a book club are not treated the same"


How many examples there are depends on what the Supreme Court finally says that 
Smith means.  If Marci gets her way, and Smith requires anti-religious motive 
that can be proved in court, then there are many examples.  If the opinion 
means what it says, and the compelling interest test applies to any law that 
has exceptions, then there aren't so many examples.  Legislative exceptions are 
very common, and when there are no exceptions, there is often a compelling 
state interest -- that's why they refused all exceptions.

But even if no exceptions is the standard, there are still examples.  The fire 
fighter case we have been discussing is one.  Barr v. City of Sinton is 
another.   RFRAs also simplify the litigation even in cases where there are 
exceptions that would support a free exercise claim.

Quoting hamilto...@aol.com:

>
> 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)
>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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