RE: Factual Clarification re CLS
Mark's helpful post provides a thoughtful response to my earlier question -- but in doing so, it raises another question about the potential scope of the Court holding in the CLS case. In my view, the forum that Hastings created was essentially a designated public forum, not a designated limited public forum. As such, it had to be open to everyone on pretty much the same terms as a traditional public forum. On that understanding, I think one can argue that a student group's right of associational freedom extends not only to the power to determine who may serve as group leaders or be counted as voting members. It would also extend to determining who may participate in group events and discussions as well. Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- to promote a diversity of viewpoint among groups for the benefit of the entire student body. Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. What troubles me about this argument is that it depends so much on the nature and parameters of the forum that Hastings or some other university or law school chooses to create. That leads me to this question: If the parameters of the forum a university creates may permit the university to restrict a student group's associational freedom with regard to controlling access to its events and discussions, might one argue that different parameters -- say parameters designed to create internal dialogue and discussion within student groups -- would permit the university to restrict a student group's associational freedom with regard to choosing its own leaders and voting members. I understand the argument one might make that Hastings did not in fact create such a forum so the possibility that it, or another university, could do so would not preclude a decision favoring CLS in this litigation. But this analysis would make a CLS victory of relatively limited value. A different university, creating a more limited forum for a different purpose, would not be bound by the decision. For the CLS case to apply more broadly, the Court would have to conclude that a university cannot constitutionally create a designated limited public forum that denies access to groups that impose restrictions on who may serve as leaders or be counted as voting members. That holding raises the question of why a university should be prohibited from creating this kind of limited public forum because of the burden it imposes on associational freedom, but may create a limited public forum requiring all groups seeking access to it to open their events and discussions to everyone -- notwithstanding the burden such requirements impose on associational freedom. Mark quite fairly notes that he has not yet considered this question. He also notes that the Court does not need to reach it to decide the CLS case. I think that is correct. But I also think that the more the Court's decision in the CLS case is based on the specific purpose for, and parameters of, the forum Hastings created, the more limited will be the scope and applicability of its holding and analysis. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Monday, May 10, 2010 3:21 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Alan’s question is (as always) a fair one. I’d say that the government’s (Hastings Law School’s) interest in having the message promoted by the groups in its forum available to all students is quite consistent with allowing those groups to have their own points of view, free from being taken over by a hostile majority. The claim that a group should be allowed to close its meetings to non-adherents is thus at least “one step beyond”* the claim that it should be able to have standards for those who set its agenda and speak its message. In other words, because the explicit purpose of the forum is to promote a diversity of viewpoint among groups for the benefit of the entire student body, requiring groups to allow any student to hear the messages put forward by the group helps to advance the purpose of the forum. I suppose this would be similar to saying that the student group in Rosenberger would have to allow any student to have a copy of its magazine, but would not have to allow any student to become an editor of the magazine. To the extent that participation in discussion by students who are non-adherents is consistent with the putting forward
RE: Factual Clarification re CLS
Alan writes: Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- to promote a diversity of viewpoint among groups for the benefit of the entire student body. Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. Hastings created the all comers policy on the fly, perhaps as part of its litigation strategy, but I think Alan sums up their effort in the best light possible. Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes. Is this another accurate way of summing up what Hastings is trying to do? Why is this condition on expressive association not an unconstitutional condition? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Justice Breyer in Hastings case
The scope of the CLS-proposed rule ends with the group's own activities. The right to meet in unused public space has not been viewed as a subsidy in decades -- not since the end of the right-privilege distinction. Meeting off campus, with no right to announce the organization's existence at the student activities fair or via other law school channels of communication, is such an enormous disadvantage as to be no solution at all. The cash subsidy based on Rosenberger is a harder issue, presenting a square conflict between disestablishment principles on the one hand and equality and free speech principles on the other. The Court had to choose. I think they chose correctly, but that issue is hard. Tthe right to meet should be a no-brainer. As Rick Duncan said, the various Hastings' policies are an attempt to come up with a form of words that will effectively overrule Widmar, Mergens, Lamb's Chapel, and Milford. And if the opinion leaves open the possibility that schools like Hastings may come up with some yet more clever form of words, the opinion will be meaningless. The Hastings rules are not rules of conduct; they are rules of identity. A seriously committed religious, political, or ideological organization cannot exist under the all-comers policy. Except that, the policy appears to be enforced only against CLS. But taken literally, the all-comers policy is inconsistent with any right to associate for First Amendment purposes. I am not as optimistic as Chip about there being no hostile takeovers. The amicus brief by Hastings students pretty much threatened takeovers; they want to be able to ?join in order to effect change from within.? But whatever the odds of a hostile takeover, this is also about the integrity of the organization. CLS is committed to a viewpoint, and it puts that viewpoint front and center. No one can join under a misunderstanding about what that viewpoint entails, or without subscribing to the viewpoint. They are all set out in the statement of faith. As someone pointed out, CLS is a national organization. No local group of students can use the CLS name or claim a CLS affiliation without subscribing to the CLS statement of faith. I have 1000 pages of page proof waiting, and nearly that many pages of papers and exams, so I am going to try to be disciplined and exit this debate. The Court will say whatever it says, and as Marci notes, our e-mails will not influence it. Quoting hamilto...@aol.com: For what it is worth, Doug, I will stick with my reading of the transcript. It is not as though either of us will be writing the opinion(s) In any event, what is more interesting to me is the attempt by conservative Christians to demand university funds and recognition when they can meet without it. Where is the stopping point here? I was quite serious when I said that the reasoning propounded by CLS is one short step away from demanding the university pay for all worship services. And then schools can be required to segregate students in classes or campus housing so there is no cross-pollination between believers. And separate cafeterias. Where does this push to turn the public sphere into the service of the private sphere end? I am sincerely interested in the limiting principle if Doug or others can articulate it Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Mon, 10 May 2010 20:53:23 To: religionlaw@lists.ucla.edu Subject: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. 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___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options,
Re: Justice Breyer in Hastings case
Rick. This is what I see as problematic. There is no evidence of exclusion by the school. Only of a refusal to fund a group that excludes members of the law school community based on belief and conduct. This is not an access case. Michael had to concede this at the argument As Justice Scalia repeatedly stated there is no evidence of viewpoint or content discrimination. As it arrived at the Court, this is not a good case to vindicate CLS's agenda. On a different note, your theory seems to presume the necessity of a Balkanization of believers in educational settings. This is not just anti-intellectual, it is an attack on the importance of discourse between different believers for a stable democracy to exist. I think our higher institutions need to foster tolerance through encouraging discourse It also seems to trade on an old-fashioned concept of the need to exclude undesirables. Groups in the larger society are constantly challenged from without and from within. Why should student groups be protected by the First Amendment from this competition in ideas? In my view, CLS's theory turns the First Amendment on its head and threatens to stifle the values of intellectual exchange Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com Date: Mon, 10 May 2010 19:47:20 To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Justice Breyer in Hastings case Marci, the limiting principle is the public forum doctrine. CLS is not asking for public funding in a vacuum. They merely want access to Hastings' limited public forum for student groups, access that respects their right of expressive association. Hastings is searching for a loophole to overrule the results in Widmar, Mergens, Lambs Chapel, and Good News. If all the govt has to do to keep churches, religious organizations, and other unpopular groups from having access to a public forum is adopt an all comers policy that excludes groups which exclude from membership those who reject their beliefs and expressive ideas, then Widmar, Lambs Chapel, and Good News are meaningless. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Mon, 5/10/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Justice Breyer in Hastings case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 10, 2010, 7:31 PM For what it is worth, Doug, I will stick with my reading of the transcript. It is not as though either of us will be writing the opinion(s) In any event, what is more interesting to me is the attempt by conservative Christians to demand university funds and recognition when they can meet without it. Where is the stopping point here? I was quite serious when I said that the reasoning propounded by CLS is one short step away from demanding the university pay for all worship services. And then schools can be required to segregate students in classes or campus housing so there is no cross-pollination between believers. And separate cafeterias. Where does this push to turn the public sphere into the service of the private sphere end? I am sincerely interested in the limiting principle if Doug or others can articulate it Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Mon, 10 May 2010 20:53:23 To: religionlaw@lists.ucla.edu Subject: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to
RE: Factual Clarification re CLS
Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you want to associate in a way that isn't democratic, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, etc., but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? Eugene ___ 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: Justice Breyer in Hastings case
Where is the evidence that Hastings required them to meet off-campus? Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Tue, 11 May 2010 09:48:54 To: religionlaw@lists.ucla.edu Subject: Re: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
Eugene is correct and this is extremely helpful. But I think part of what is happening here is an agenda to incrementally reach a doctrine that requires public support for private schools. No? It is the fairness reasoning that has undergirded the push for federal public money for religious mission on the theory that it is unfair to exclude them. Marci Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Tue, 11 May 2010 06:53:55 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: RE: Factual Clarification re CLS Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you want to associate in a way that isn't democratic, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, etc., but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Faith Base Banking
In that case, they should be careful what they wish for: Hebrew National's claim was that their standards were *stricter* than the government's, not that they were exempt from them. On Mon, May 10, 2010 at 7:37 PM, verizon alanarmstrong@verizon.netwrote: I think the bank was claiming something like Hebrew National's we answer to a higher authority. That is, they would be more friendly, transparent, and helpful than other banks. Maybe they would keep the borrower from getting a loan that could not be repaid. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 faz 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 On May 10, 2010, at 2:51 PM, Vance R. Koven wrote: I don't see any particular connection to religion at all here. Everybody seems to be saying they were in compliance with banking regulations, the securities laws and anything else they've been charged with violating. If there is going to be a claim that being a religious bank means they don't have to abide by whatever lending criteria the law establishes (and if they were out of compliance, I'd like to know what Fannie Mae and Freddie Mac's excuse was), it would strike me as both a last refuge of a scoundrel issue and a possible estoppel issue if they didn't make any exemption claims when obtaining their banking licenses (I don't know what regulations would apply to the borrower--there are already cases that hold a bank loan is not a securities transaction to which Rule 10b-5 would apply). There are, however, religious banks, in the sense of banks that apply religious law to their products, chiefly Islamic banks that structure products around the interest prohibition. Of course, Western banks also deal in such products for clients to whom the religious prohibitions matter. However, the NYT article doesn't suggest that Integrity was claiming a Christian loan is one that doesn't need to be repaid. Vance On Mon, May 10, 2010 at 2:30 PM, hamilto...@aol.com wrote: Sounds like religious insurance. They typically argue they should not have to abide by regulations and they discriminate on the basis of religion in hiring and in choosing customers As I remember there is a religious exemption for religious insurers in the health care law. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Volokh, Eugene vol...@law.ucla.edu Date: Mon, 10 May 2010 11:13:12 To: 'Law Religion issues for Law Academics'religionlaw@lists.ucla.edu Subject: RE: Faith Base Banking ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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
RE: Factual Clarification re CLS
How fragile is the public forum protections of cases like Widmar, Lamb's Chapel, and Good News? Let me re-phrase one of Eugene's hypos: A [public library with unused meeting rooms] is attempting to create a designated public forum for all [community groups] that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, [or any other reason], but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? If Eugene's implication is correct, all the govt has to do to exclude church's, religious ministries, and even secular expressive groups like Planned Parenthood and the NAACP from public fora is to adopt an all comers rule as part of its designated forum policy and then exclude all groups that insist on keeping their right of expressive association (their right to exclude members and leaders who do not share the groups' expressive purposes). Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar would have reversed the results in those cases, and led to the Court's permitting govt to deny the plaintiffs in those cases access to the public fora. No? This case is not about equal funding for religious K-12 schools, as Marci suggests. It is about whether a landmark body of law, protecting the right of free speech in public fora, will be eviscerated by a newly-created codicil allowing govt to restrict access to public fora by adopting all comers policies that strike at the heart of freedom of expressive association. In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Factual Clarification re CLS
In a society committed to non-discrimination and equality, the government should not be required to subsidize hate groups and groups that exclude other on prohibited bases. There are plenty of private places to meet. And if the society wants to change the policy, it can do so -- unless it is constitutionalized. Do you really want this degree of constitutionalization of policy decisions? Or do you want greater flexibility and political processes available to rectify results you find improper? Accommodation would be ok -- making an exception would be constitutional, no? Steve On May 11, 2010, at 10:41 AM, Rick Duncan wrote: In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Life is a banquet, and most poor suckers are starving to death! Auntie Mame by Patrick Dennis ___ 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: Factual Clarification re CLS
Eugene's examples are all pretty powerful. They also demonstrate the arguably very weak utility of limited public forum doctrine for protecting freedom of association. Cases like Widmar and Good News Club are distinguishable because the Court has made it clear that limited public forum parameters cannot be viewpoint discriminatory. There is no Supreme Court case law (at least to my recollection) that prohibits the creation of a limited public forum that restricts access in a way that limits associational freedom. I think that an all purpose, completely open, designated public forum should be treated just like a traditional public forum. I would argue that this rule would prohibit conditioning access on a group's waiving its associational freedom rights. But once we are in the world of limited public forums, the issue becomes much more complicated. We have a constitutional framework for reviewing viewpoint discriminatory, content discriminatory, and content neutral restrictions on access to a limited public forum. But what is the framework for reviewing a limited public forum that is defined in a way that burdens associational freedom? Is the freedom to determine the voting members of an organization more important than the freedom to express one's views on a particular subject. Content discriminatory regulations restrcting speech in a limited public forum are upheld under very deferential review. It may very well be that a limited public forum that controls access through restrictions on associational freedom is of far less value to expressive groups than a more open forum. But state institutions are permitted to create limited public forums that are only of marginal use to speakers, just as they are permitted not to create a limited public forum in the first place. What state institutions cannot do is to eggregiously distort public debate -- hence the prohibition against viewpoint discrimination. The best argument for CLS is that restrictions on the right of groups to determine their voting members distort debate as opposed to weakening debate. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, May 11, 2010 6:53 AM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS Rick Duncan writes: Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes Why is this condition on expressive association not an unconstitutional condition? I think the answer is that it's just a constitutionally permissible decision not to subsidy constitutionally protected activity. Consider some examples: A state is attempting to subsidize a wide range of medical care, but not for abortions. If you want an abortion, get it with your own money. Constitutional. A state is allowing a wide range of medical care in its hospitals, but not abortions. If you want an abortion, get it on your private property. Constitutional. A state is attempting to subsidize public education, but not private education. If you want private education, get it with your own money. Constitutional. The federal government is attempting to create a designated public forum -- a subsidy administered through 501(c)(3) tax deductions for charitable contributions -- for pretty much all nonprofit speakers, but only those who don't use tax-exempt money for constitutionally protected electioneering, even though this detracts from the group's expressive purpose. If you want to electioneer, do it with unsubsidized funds. Constitutional. A university is attempting to create a designated public forum for all student groups that are run by students, but not those who exercise their right to expressive association by being run chiefly by outsiders, even when their expressive purpose would be better served by being run by outsiders (e.g., if the group belongs to an ideological movement that stresses central control by a church, or operation by the community or some subset of the community rather than by students). If you want to associate in a way that is run by outsiders, do it with your own money and your own property. Constitutional, right? A university is attempting to create a designated public forum for all student groups that organize themselves democratically, but not those who exercise their right to expressive association by organizing themselves in a way in which the group is dominated by one student leader, even when their expressive purpose would be better served by being run nondemocratically. If you
RE: Factual Clarification re CLS
I appreciate Alan's very helpful post particularly his concern about speech distortion. I have a question for him and others. Should severe restrictions on freedom of expressive association best be viewed as a kind of viewpoint restriction? If groups speak through their leaders, and if leaders are elected by voting members, the ability of an expressive group to craft and articulate its viewpoint in a designated public forum is indeed made vulnerable to distortion or even total destruction when the state adopts a designated public forum requiring a waiver of associational freedom as a condition to access. I think this is what was bothering Justice Breyer. A marketplace of ideas requires a diversity of views, and a diversity of views is not served by groups that are denied the right to define an expressive identity. I think Breyer was saying such a fantastical forum is more like a group hug than a marketplace of ideas. Like Doug Laycock, I have exams that need to be graded. I can't wait to read the opinions that come down in this case. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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: Justice Breyer in Hastings case
Marci asks: Where is the evidence that Hastings required them to meet off-campus? Someone helped me with some research, and here is the evidence Marci requires: 1. Even the district court observed that [i]t is undisputed that CLS is being denied...access to particular areas of the campus and some avenues of communicating with its members and other students. [Pet. App. 39a]. The college's general counsel wrote CLS that [b]ecause CLS is not a registered student organization, at this point use of college resources is limited. [Reply Br. 7]. 2. CLS was denied access to almost all communication channels within the law school, e.g., the student organizations fair, the student email list, the law school weekly newsletter regarding student activities, bulletin boards used by other student groups, weekly email announcements of activities, and the Student Information Center. It was allowed access only to a bulletin board available to off-campus persons and chalkboards. [Pet. Br. at 12, 23-26]. 3. The access to meeting space was an illusory offer. As Hastings' counsel explained the offer to the district court: Hastings allows community groups to some degree to use its facilities, sometimes on a pay basis...if they're available after priority is given to registered organizations. In other words, CLS may use facilities on a space-available basis only after priority is given to the 60 recognized student groups--and CLS could be charged a rental fee. Hastings' counsel also made clear that the offer could be revoked at any time. [Reply Br. at 5-8; Cert. Reply Br. at 4; Pet. Br. at 11-12] 4. Campus regulations require [a]ll persons on College property...to abide by College policies and campus regulations. (Reg. 11.00; Reg. 31.12 [Pet. App. 75a, 77a]). The Nondiscrimination Policy applies to everyone on College property, not just to recognized student groups. [Cert. Reply Br. at 4-5; Reply Br. at 7]. Hastings has never even tried to explain that discrepancy. 5. When CLS twice requested access in Fall 2005 (the year after the suit began), it was met with the bureaucratic stall so that none of its requests to meet on campus was granted in time for the event to be held. [Reply Br. at 7-8]. I think we could dig up more examples if necessary. But this should suffice as a response to Marci's challenge. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Justice Breyer in Hastings case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 7:02 AM Where is the evidence that Hastings required them to meet off-campus? Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Tue, 11 May 2010 09:48:54 To: religionlaw@lists.ucla.edu Subject: Re: Justice Breyer in Hastings case ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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: Factual Clarification re CLS
It seems to me that a public library should be perfectly entitled to say, in the words of Title VI, that public funds, to which all taxpayers of all races [and sexes and religions and sexual orientations and ideologies] contribute, not be spent in any fashion which ... subsidizes ... racial [or sexual or religious or sexual orientation or ideologies] discrimination. I think this sort of antidiscrimination extremism is bad policy; but I don't see why it would be unconstitutional. The NAACP, Planned Parenthood, churches, and other groups would just have to meet on private property. The same, incidentally, is true as to the charitable tax exemption, which doesn't apply to contributions to groups that engage in electioneering or a substantial amount of lobbying. This excludes many worthy and eminently constitutionally protected groups from the benefit plan. It may be an unwise idea. Perhaps the government's subsidies to nonprofits' speech should also extend to nonprofits that electioneer or substantially lobby, because such speech is as valuable to society as other speech. But it's a constitutionally permissible choice for the state to make. Groups that want to elect candidates or promote ballot measures or lobby for legislation, however wonderful those groups might be, just have to do that with their own money. Nor would I worry too much that clever drafting would exclude groups that ended up being included under Rosenberger et al. A university is always free not to fund student groups at all, which means that it wouldn't fund Wide Awake, or to fund only those groups that express views that it chooses, or to fund only groups that talk about sports and not about other matters, or whatever else. Rosenberger et al. of course don't stand for the proposition that any groups should be funded - only that they can't be denied funding because of the religiosity of their viewpoints. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 7:41 AM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS How fragile is the public forum protections of cases like Widmar, Lamb's Chapel, and Good News? Let me re-phrase one of Eugene's hypos: A [public library with unused meeting rooms] is attempting to create a designated public forum for all [community groups] that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, [or any other reason], but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? If Eugene's implication is correct, all the govt has to do to exclude church's, religious ministries, and even secular expressive groups like Planned Parenthood and the NAACP from public fora is to adopt an all comers rule as part of its designated forum policy and then exclude all groups that insist on keeping their right of expressive association (their right to exclude members and leaders who do not share the groups' expressive purposes). Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar would have reversed the results in those cases, and led to the Court's permitting govt to deny the plaintiffs in those cases access to the public fora. No? This case is not about equal funding for religious K-12 schools, as Marci suggests. It is about whether a landmark body of law, protecting the right of free speech in public fora, will be eviscerated by a newly-created codicil allowing govt to restrict access to public fora by adopting all comers policies that strike at the heart of freedom of expressive association. In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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 real-life on-campus example
On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ 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.
A question about the must give religious exemptions to the same extent as secular exemptions theory
A recent case that distinguished FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (see http://volokh.com/2010/05/11/court-rejects-muslim-police-officers-demand-for-accommodation-of-his-religious-practice-of-wearing-a-full-beard/ for a post on the recent case) led me to think: How would the FOP Newark Lodge rationale apply to government employers who give paid parental leave? Say, for instance, that an employee asks for paid leave to go on the Hajj, or to go on a two-month-long religious retreat. Must a government employer that gives paid parental leave likewise give paid leave for its employees' longish religious absences? (And if the answer is no, because FOP Newark doesn't apply to payment of money, then how does this square with the Sherbert v. Verner argument in support of FOP Newark, given that Sherbert did involve the payment of money?) Eugene ___ 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 real-life on-campus example
I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't hold, at least for the latter, since I'm confident that McConnell (and, I suspect, almost everybody on this list) would not allow a Title VII-like action against the Catholic Church or Orthodox Judaism or even strip those religions of their tax exemption because of their blatant sexism. Having read the oral argument, incidentally, I do wonder if there will be an effort simply to dismiss it as improvidently granted, given that most of the time seemed to have been spent on trying to figure out what exactly were the facts and the relationship between various stipulations and written policies of the Law School. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist Sent: Tuesday, May 11, 2010 11:29 AM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Factual Clarification re CLS
Lisa -- how do you distinguish between allowing CLS and hate groups to meet? Or does it not matter to you? As a policy matter I think groups should be able to discriminate on belief and still get access -- but then what about a belief that is based on race? Or sex? We are talking about the constitutional issue here, not wise policy. Steve On May 11, 2010, at 12:06 PM, Lisa A. Runquist wrote: On 5/11/2010 8:05 AM, Steven Jamar wrote: In a society committed to non-discrimination and equality, the government should not be required to subsidize hate groups and groups that exclude other on prohibited bases. Are you saying CLS is a hate group? Or that a religious organization is prohibited from having a statement of faith and requiring members to agree to that statement of faith? If the society is truly committed to non-discrimination and equality, then it will treat all groups equally. That means that Christians should have the same rights as others. In fact, the first amendment was designed to PROTECT religious organizations, not to be a cudgel that allows the government to PROHIBIT them. As to any subsidy, I have several thoughts: 1. If the position of the college was that it would allow student groups to meet but would not give any of them any funds, that would certainly be equal treatment, and might be the best solution. 2. If the position of the college was that all student groups that met on the college could not be closed, but had to be open to participation (not membership) by anyone interested, that is again equal treatment. 3. If the position of the college is that any student group could meet, but that it would fund only student groups that are not religious, is that equal treatment, or is that discrimination against religion? If I were a student, and my student funds were going to other groups that did things I did not believe in, but my group was denied funding, I would probably think I was being discriminated against. There are plenty of private places to meet. I remember 35 years ago when I was a law student, seeing a notice for a CLS meeting. I finally did get up enough courage to attend (long story). Would I have attended if it had been someplace other than the law school? I don't know. I was working 20-30 hours a week as well as going to school full time so it would have made it much harder. Would I have had any way of knowing about CLS if I had not seen the notice on the bulletin board? Probably not. Did becoming a member of CLS help me get thru school? Yes. I was not a part of any other group in law school; I did not belong even to any type of study group (I was pretty shy, had never known any lawyers before I went to law school, and did not know that people actually got together to study -- everything I did was pretty much on my own). Although I am not currently a member of CLS, I was one for a number of years, and it did provide support that I did not get from any other group on campus. I must say that it certainly was more helpful than the beer bashes that were regularly funded by the school. Lisa And if the society wants to change the policy, it can do so -- unless it is constitutionalized. Do you really want this degree of constitutionalization of policy decisions? Or do you want greater flexibility and political processes available to rectify results you find improper? Accommodation would be ok -- making an exception would be constitutional, no? Steve On May 11, 2010, at 10:41 AM, Rick Duncan wrote: In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of avoiding U.S. tax penalties. This message and any attachments may be protected by the attorney/ client privilege. If you believe that it has been sent to you in error, do not read, copy or distribute it. Please reply to the sender that you have received the message in error and then delete it.
Re: A real-life on-campus example
Yes. Free exercise, establishment, free speech, freedom of association, and equality are in tension here. So what is your principled solution to resolving the tension? Does equality trump everything? If so, then don't you need to eliminate all accommodations for religion? Your response to my concerns strikes me as a bit simplistic. I don't see how they would work out. Constitutionally I have no problem with accommodating CLS. But I also have little problem with requiring them not to discriminate (isn't that equality?) just like other sanctioned groups. It is not easy. It is easy to make slogans, to twist the framing of the problem (like Rick Duncan has done, and as I have done and others too) to bias it one way or another, but it is a real problem with important, fundamental principles in competition -- as was the case in Rosenberger. I would have gone the other way, but, unlike some decisions, I don't consider Rosenberger particularly harmful or problematic -- except insofar as the lack of somewhat more clear lines is always problematic. Steve On May 11, 2010, at 12:28 PM, Lisa A. Runquist wrote: On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. One should, for example, be able to see that things are hopeless and yet be determined to make them otherwise. -- F. Scott Fitzgerald. ___ 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 real-life on-campus example
CLS does not claim that it should be treated differently from political groups. Hastings' written rule treated religious groups differently, because it prohibited religious discrimination but did not prohibit political discrimination. The only groups that could not organize around a viewpoint were religious group. It's all comers rule is egregiously unconstitutional as to political groups as well as to religious groups. Quoting Sanford Levinson slevin...@law.utexas.edu: I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't hold, at least for the latter, since I'm confident that McConnell (and, I suspect, almost everybody on this list) would not allow a Title VII-like action against the Catholic Church or Orthodox Judaism or even strip those religions of their tax exemption because of their blatant sexism. Having read the oral argument, incidentally, I do wonder if there will be an effort simply to dismiss it as improvidently granted, given that most of the time seemed to have been spent on trying to figure out what exactly were the facts and the relationship between various stipulations and written policies of the Law School. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist Sent: Tuesday, May 11, 2010 11:29 AM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note
Re: A question about the must give religious exemptions to the same extent as secular exemptions theory
I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than others. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 9:32 AM A recent case that distinguished FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (see http://volokh.com/2010/05/11/court-rejects-muslim-police-officers-demand-for-accommodation-of-his-religious-practice-of-wearing-a-full-beard/ for a post on the recent case) led me to think: How would the FOP Newark Lodge rationale apply to government employers who give paid parental leave? Say, for instance, that an employee asks for paid leave to go on the Hajj, or to go on a two-month-long religious retreat. Must a government employer that gives paid parental leave likewise give paid leave for its employees’ longish religious absences? (And if the answer is “no, because FOP Newark doesn’t apply to payment of money,” then how does this square with the Sherbert v. Verner argument in support of FOP Newark, given that Sherbert did involve the payment of money?) Eugene -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: A real-life on-campus example
Doug may very well be right, but I must say that plowing through the oral argument didn't highlight the difference between CLS and, say, the Young Democrats. If Hastings is indeed selecting out religious groups for special all comers non-discrimination with regard to eligibility for leadership positions, then I agree it's a no brainer. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, May 11, 2010 12:01 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example CLS does not claim that it should be treated differently from political groups. Hastings' written rule treated religious groups differently, because it prohibited religious discrimination but did not prohibit political discrimination. The only groups that could not organize around a viewpoint were religious group. It's all comers rule is egregiously unconstitutional as to political groups as well as to religious groups. Quoting Sanford Levinson slevin...@law.utexas.edu: I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't hold, at least for the latter, since I'm confident that McConnell (and, I suspect, almost everybody on this list) would not allow a Title VII-like action against the Catholic Church or Orthodox Judaism or even strip those religions of their tax exemption because of their blatant sexism. Having read the oral argument, incidentally, I do wonder if there will be an effort simply to dismiss it as improvidently granted, given that most of the time seemed to have been spent on trying to figure out what exactly were the facts and the relationship between various stipulations and written policies of the Law School. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist Sent: Tuesday, May 11, 2010 11:29 AM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: A real-life on-campus example
It is common for a dismissal as improvidently granted to occur soon after oral argument. I think too much time has passed to make such a disposition likely. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, May 11, 2010 12:50 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't hold, at least for the latter, since I'm confident that McConnell (and, I suspect, almost everybody on this list) would not allow a Title VII-like action against the Catholic Church or Orthodox Judaism or even strip those religions of their tax exemption because of their blatant sexism. Having read the oral argument, incidentally, I do wonder if there will be an effort simply to dismiss it as improvidently granted, given that most of the time seemed to have been spent on trying to figure out what exactly were the facts and the relationship between various stipulations and written policies of the Law School. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist Sent: Tuesday, May 11, 2010 11:29 AM To: religionlaw@lists.ucla.edu Subject: Re: A real-life on-campus example On 5/10/2010 8:21 PM, Steven Jamar wrote: Religion and religious organizations are different from other organizations. The constitution says we need to treat religion differently. Unless we decide that speech and association and equal treatment principles trump the religion clauses, we need to give them effect somehow -- both the free exercise and establishment clauses. And the constitution does not say that religious organizations are to be treated worse than all other groups. The government cannot establish religion, but it also cannot prohibit the free exercise of religion. Yet that, it seems to me, is exactly what the college is trying to do here. What would be the result if the university made an exception for religious organizations -- then it is not treating the religious organization equally. As long as all religious organizations are treated the same way, then there is no violation. If, for example, it allowed CLS to meet but prohibited a Muslim group from meeting, then this would be not treating the religious organizations equally. Lisa -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read
RE: A real-life on-campus example
Hastings' initial policy prevented CLS from discriminating on religious grounds but did not prevent political groups from discriminating on political grounds. (As Michael McConnell's brief pointed out, with quotes from, if I remember correctly, Larry Tribe, Justice Brennan, and Justice O'Connor, the ability to choose those who determine an expressive association's message is integral to the freedom of expressive association and constitutive of the expressive associational group; considering it to be discrimination in the way we ordinarily use that term is a category error.) Probably because it realized that such a policy was indefensible, Hastings tried to switch to an all-comers policy that supposedly would apply to all groups. That all comers policy is the one Doug is referencing as being egregiously unconst as to both political and religious groups. The record seems to support the view that Hastings continued to apply its original policy against CLS, along with the all-comers policy, though one could argue that the latter encompasses the former. The record also shows no enforcement of the all comers policy against groups, including Hastings Outlaw, that had provisions in their constitutions requiring officers to support the group's mission. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, May 11, 2010 10:06 AM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Doug may very well be right, but I must say that plowing through the oral argument didn't highlight the difference between CLS and, say, the Young Democrats. If Hastings is indeed selecting out religious groups for special all comers non-discrimination with regard to eligibility for leadership positions, then I agree it's a no brainer. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, May 11, 2010 12:01 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example CLS does not claim that it should be treated differently from political groups. Hastings' written rule treated religious groups differently, because it prohibited religious discrimination but did not prohibit political discrimination. The only groups that could not organize around a viewpoint were religious group. It's all comers rule is egregiously unconstitutional as to political groups as well as to religious groups. Quoting Sanford Levinson slevin...@law.utexas.edu: I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't hold, at least for the latter, since I'm confident that McConnell (and, I suspect, almost everybody on this list) would not allow a Title VII-like action against the Catholic Church or Orthodox Judaism or even strip those religions of their tax exemption because of their blatant sexism. Having read the oral argument, incidentally, I do wonder if there will be an effort simply to dismiss it as improvidently granted, given that most of the time seemed to have been spent on trying to figure out what exactly were the facts and the relationship between various stipulations and written policies of the Law School. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist Sent:
Mojave Cross
Stolen/vandalized http://www.cnn.com/2010/CRIME/05/11/mojave.cross.stolen/index.html?hpt=T1 Mojave cross at center of court fight reported stolen ___ 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 real-life on-campus example
What is the relevance of Gilmore v. City of Montgomery,417 US 556 which held that cities need not,indeed could not, exclude racially segregated schools from non-exclusive use of public parks so long as there was no lingering state action. .The Court seems to have held held that to do so would violate the associational rights of segregation academies.Some of the examples cited by the court of impermissible exclusions from public spaces,trenching on freedom of association,we would call public fora of various kinds. Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 1:21 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Hastings' initial policy prevented CLS from discriminating on religious grounds but did not prevent political groups from discriminating on political grounds. (As Michael McConnell's brief pointed out, with quotes from, if I remember correctly, Larry Tribe, Justice Brennan, and Justice O'Connor, the ability to choose those who determine an expressive association's message is integral to the freedom of expressive association and constitutive of the expressive associational group; considering it to be discrimination in the way we ordinarily use that term is a category error.) Probably because it realized that such a policy was indefensible, Hastings tried to switch to an all-comers policy that supposedly would apply to all groups. That all comers policy is the one Doug is referencing as being egregiously unconst as to both political and religious groups. The record seems to support the view that Hastings continued to apply its original policy against CLS, along with the all-comers policy, though one could argue that the latter encompasses the former. The record also shows no enforcement of the all comers policy against groups, including Hastings Outlaw, that had provisions in their constitutions requiring officers to support the group's mission. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Tuesday, May 11, 2010 10:06 AM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Doug may very well be right, but I must say that plowing through the oral argument didn't highlight the difference between CLS and, say, the Young Democrats. If Hastings is indeed selecting out religious groups for special all comers non-discrimination with regard to eligibility for leadership positions, then I agree it's a no brainer. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, May 11, 2010 12:01 PM To: religionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example CLS does not claim that it should be treated differently from political groups. Hastings' written rule treated religious groups differently, because it prohibited religious discrimination but did not prohibit political discrimination. The only groups that could not organize around a viewpoint were religious group. It's all comers rule is egregiously unconstitutional as to political groups as well as to religious groups. Quoting Sanford Levinson slevin...@law.utexas.edu: I can't figure out exactly why religious groups deserve to be treated differently from, say, the young Democrats or Republicans or the Sierra Club. The Constitution says not that we have to treat religion differently, but, rather, that we have to keep engaging in an endless conversation about the interplay of religion and state. Sometimes that might require different treatment, as in accommodating people who are unwilling to work on Saturday. Note, though, that the Court, rightly or wrongly, refused to extend the conscientious objector accommodation to a serious Catholic who was opposed only to the Vietnam War (on just war grounds). Nor, of course, was the Court generous to Native Americans either in Lyng or Smith, both of which, I have to say, seemed more appealing, on their facts, than the CLS case. But none of these cases really involved the freedom of association arguments that are really at the heart of the argument. Am I correct, incidentally, that the principle being advocated for would allow any religious society to restrict its leadership to males if it had a religious principle that only men were fit for such roles? Judge (now Professor) McConnell seemed to emphasize the belief-status distinction in his argument, but I'm not sure I understand it when the justification for status discrimination is a sincere (and quite traditional, often) religious belief. The argument that we, as a society have decided that race and sex/gender are just different from other categories of differentiation certainly can't
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: A question about the must give religious exemptions to thesame extent as secular exemptions theory
No. A court would almost certainly analyze paid leave as follows. The paid leave policy is a neutral benefit given to parents, religious and nonreligious, in order to make the job attractive. It is not an exception to an otherwise generally applicable rule that one only is paid for time worked. Rather, it is an affirmative, neutral grant of a fringe benefit, just like paid vacation. It does not undermine any policy of paying only for time worked, any more than providing paid vacation or sick leave undermines such a policy. The policy is to pay for time worked and to pay fringe benefits. Paying fringe benefits does not undermine this policy. I'd bet a lot of money that the judges (including then Judge Alito) in FOP Newark would see it this way. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, May 11, 2010 11:31 AM To: 'Law Religion issues for Law Academics' Subject: RE: A question about the must give religious exemptions to thesame extent as secular exemptions theory I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
RE: A question about the must give religious exemptions to thesame extent as secular exemptions theory
I appreciate Mark's framing, and I agree that some courts might take this view. But doesn't this illustrate the malleability and indefiniteness of the exception / nonexception line (something that Fred Schauer has pointed to in the past)? If the policy is seen as paying only for time worked, then parental leave may indeed undermine this policy. Paid vacation and sick leave are a different matter, since 10 days' vacation and 7 days' sick leave out of, say, a 250-day work year still means that everyone who works a year gets paid pretty much the same year's wages. Not so for parental leave, which is taken at different rates by different employees. On the other hand, if paid parental leave is a fringe benefit, then an exemption from a no-beards policy for people who have medical problems is likewise a benefit: It (1) makes the job easier for some people, and (2) thus makes the job more attractive to those people. But both also represent, I think, some judgment of sympathy or support for the particular benefited activity: a sense that medical problems, as well as parenting, are something that's worth accommodating even at some cost to government interests. So again I'm not sure what principled basis the courts can use to draw a distinction here. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, May 11, 2010 11:44 AM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to thesame extent as secular exemptions theory No. A court would almost certainly analyze paid leave as follows. The paid leave policy is a neutral benefit given to parents, religious and nonreligious, in order to make the job attractive. It is not an exception to an otherwise generally applicable rule that one only is paid for time worked. Rather, it is an affirmative, neutral grant of a fringe benefit, just like paid vacation. It does not undermine any policy of paying only for time worked, any more than providing paid vacation or sick leave undermines such a policy. The policy is to pay for time worked and to pay fringe benefits. Paying fringe benefits does not undermine this policy. I'd bet a lot of money that the judges (including then Judge Alito) in FOP Newark would see it this way. Mark Scarberry Pepperdine -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, May 11, 2010 11:31 AM To: 'Law Religion issues for Law Academics' Subject: RE: A question about the must give religious exemptions to thesame extent as secular exemptions theory I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you- must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people- to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
Then why can’t the tolerance for beards in employees whose medical conditions counsel against shaving be understood as “an affirmative policy” designed to help people who have a medical disability, and also to avoid disparate impact based on race? (Recall that the underlying medical condition is much more common among blacks than among whites.) I should think that, if a policy that discriminates between parents who send their kids to public schools and those who send their kids to private school is struck down, it would be because it discriminates against parents who exercise their Pierce parental rights. In fact, if a school gave paid leave for parents to attend parent-teacher conferences in religious schools but not secular schools, I would think that this would unconstitutionally favor religion. But even setting that aside, couldn’t one equally classify the hypothetical policy that allows paid leave for parents to attend parent-teacher conferences in public schools as “an affirmative policy designed to subsidize public schooling, and parenting of employees”? That’s the problem with this “affirmative policy” / “exception” analysis – it seems entirely malleable, driven by the result courts want to reach rather than driving the result. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
As always in the law as in the day, there is a period of light, a period of darkness, and a period of twilight. It may well be that the line between generally applicable and non-generally applicable is sometimes malleable, sometimes neither night nor day, but twilight. I am no fan of Smith and its rules. I would prefer a bright line no substantial burdens on religious exercise rule. But under Smith and Lukumi, religious freedom is protected only under the exceptions created by the Court. And a law that is not generally applicable (because it is substantially underinclusive) triggers strict scrutiny under Lukumi when it burdens free exercise. I can live with some twilight, some malleability, if that is the price of providing some token constitutional protection to the free exercise of religion. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 12:20 PM Then why can’t the tolerance for beards in employees whose medical conditions counsel against shaving be understood as “an affirmative policy” designed to help people who have a medical disability, and also to avoid disparate impact based on race? (Recall that the underlying medical condition is much more common among blacks than among whites.) I should think that, if a policy that discriminates between parents who send their kids to public schools and those who send their kids to private school is struck down, it would be because it discriminates against parents who exercise their Pierce parental rights. In fact, if a school gave paid leave for parents to attend parent-teacher conferences in religious schools but not secular schools, I would think that this would unconstitutionally favor religion. But even setting that aside, couldn’t one equally classify the hypothetical policy that allows paid leave for parents to attend parent-teacher conferences in public schools as “an affirmative policy designed to subsidize public schooling, and parenting of employees”? That’s the problem with this “affirmative policy” / “exception” analysis – it seems entirely malleable, driven by the result courts want to reach rather than driving the result. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
I was just reading the London Times and came across this item, which reminds me of Eugene's recent police leave hypo: Police officers have been given the right to take days off to dance naked on the solstices, celebrate fertility rituals and burn Yule logs if they profess pagan beliefs. The Pagan Police Association claimed yesterday that it had been recognised by the Home Office as a “diversity staff support association” — a status also enjoyed by groups representing female, black, gay, Muslim and disabled officers. Endorsement would mean that chief constables could not refuse a pagan officer’s request to take feast days as part of his or her annual leave. The eight pagan festivals include Imbolc (the feast of lactating sheep), Lammas (the harvest festival) and the Summer Solstice (when mead drinking and naked dancing are the order of the day). Problematically, the pagan festivals also include Samhain (known to non-pagans as Hallowe’en), a day when police leave is often cancelled because of the high incidence of vandalism, violence and antisocial behaviour Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 12:20 PM Then why can’t the tolerance for beards in employees whose medical conditions counsel against shaving be understood as “an affirmative policy” designed to help people who have a medical disability, and also to avoid disparate impact based on race? (Recall that the underlying medical condition is much more common among blacks than among whites.) I should think that, if a policy that discriminates between parents who send their kids to public schools and those who send their kids to private school is struck down, it would be because it discriminates against parents who exercise their Pierce parental rights. In fact, if a school gave paid leave for parents to attend parent-teacher conferences in religious schools but not secular schools, I would think that this would unconstitutionally favor religion. But even setting that aside, couldn’t one equally classify the hypothetical policy that allows paid leave for parents to attend parent-teacher conferences in public schools as “an affirmative policy designed to subsidize public schooling, and parenting of employees”? That’s the problem with this “affirmative policy” / “exception” analysis – it seems entirely malleable, driven by the result courts want to reach rather than driving the result. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
For what it’s worth, I agree that a parent-teachers conference policy must extend to all schools and not only public schools. Am I correct that Rick wouldn’t believe that businesses would have to accommodate adult children who needed to attend a conference with their aged parents’ doctors (and the like), even if the child/worker said that it was part of “honoring thy father and thy mother”? (Incidentally, this is why I generally support “personal days” and “leaves” rather than specified events, like parent-teacher conferences, because the latter can always be described as subsidies/windfalls to a particular subgroup and always be used to rev up equal protection arguments. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 2:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
To answer Sandy, if no one were allowed days off to care for their parents, under Smith the policy would probably be generally applicable and there would be no Free Ex violation in the case of the worker who wished to honor his father and mother. He or she should probably use a vacation day. More typically, you might see employers allow workers some kind of excused absence from work for good cause or extraordinary circumstances. This might well be a system of individualized exemptions that would trigger strict scrutiny under the new and (not) improved Sherbert, if a religious worker were denied an excused absence to attend to some religious duty. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Sanford Levinson slevin...@law.utexas.edu wrote: From: Sanford Levinson slevin...@law.utexas.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 1:20 PM For what it’s worth, I agree that a parent-teachers conference policy must extend to all schools and not only public schools. Am I correct that Rick wouldn’t believe that businesses would have to accommodate adult children who needed to attend a conference with their aged parents’ doctors (and the like), even if the child/worker said that it was part of “honoring thy father and thy mother”? (Incidentally, this is why I generally support “personal days” and “leaves” rather than specified events, like parent-teacher conferences, because the latter can always be described as subsidies/windfalls to a particular subgroup and always be used to rev up equal protection arguments. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 2:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
Frankly, I think that an employer would be crazy to adopt the “good cause” or even “extraordinary circumstances” standard, since it is an open invitation to acrimonious litigation. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 3:39 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To answer Sandy, if no one were allowed days off to care for their parents, under Smith the policy would probably be generally applicable and there would be no Free Ex violation in the case of the worker who wished to honor his father and mother. He or she should probably use a vacation day. More typically, you might see employers allow workers some kind of excused absence from work for good cause or extraordinary circumstances. This might well be a system of individualized exemptions that would trigger strict scrutiny under the new and (not) improved Sherbert, if a religious worker were denied an excused absence to attend to some religious duty. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Sanford Levinson slevin...@law.utexas.edu wrote: From: Sanford Levinson slevin...@law.utexas.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 1:20 PM For what it’s worth, I agree that a parent-teachers conference policy must extend to all schools and not only public schools. Am I correct that Rick wouldn’t believe that businesses would have to accommodate adult children who needed to attend a conference with their aged parents’ doctors (and the like), even if the child/worker said that it was part of “honoring thy father and thy mother”? (Incidentally, this is why I generally support “personal days” and “leaves” rather than specified events, like parent-teacher conferences, because the latter can always be described as subsidies/windfalls to a particular subgroup and always be used to rev up equal protection arguments. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 2:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To
