RE: Analogous Secular Interests
Bob’s point 1 means the issue won’t arise very often. But when a non-theist has a deeply held moral commitment that is analogous to similar religious commitments, he ought to be protected. On point 2, the lack of a sacred text is just a matter of proof, and not in itself so important. The lack of an organized body with systematic teachings is the bigger proof obstacle. But as most list members know, nontheistic objection to military service was protected as a matter of statutory interpretation in the Vietnam-era cases. I fear it would be a tougher sell to today’s Court, although Justice O’Connor endorsed those cases, apparently as a matter of constitutional law, in her concurring opinion in Kiryas Joel. On point 3, the parsonage allowance is not a protection for conscience and really presents a quite different set of issues. It does not relieve a burden on the exercise of religion, and it is not part of a neutral general category; it is probably a longstanding Establishment Clause violation. But it is also likely that no one has standing to challenge it, especially after Arizona v. Winn. It is not available to all employees of the church, but only to ministers. So it should not be available to the whole staff of FFRF. But if there are employees whose job is to teach a non-theistic belief system to followers, or perhaps to proselytize the unconverted, they should be eligible for the parsonage allowance. That’s how I would set up the claim if I were representing FFRF. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Thursday, April 19, 2012 2:15 PM To: Law Religion issues for Law Academics Subject: Analogous Secular Interests Marty, I'm very curious about your reference to analogous secular interests in your recent accommodation and pork post. I would appreciate some elaboration. #1 - This concept occasionally came up at the American Humanist Association during the three years that I served as staff attorney. The big impediment is that nontheists don't have sincerely held religious beliefs, e.g., with respect to foods, clothing, birth control, death penalty. Instead, our (atheists, agnostics, freethinkers, secular humanists) notions of these items are based on personal preference, personal philosophy or (personal) reason. Altho secular humanism was mentioned in a footnote in Torcaso v. Watkins (1961) as being a religion, its lack of a sacred text or creed make it very difficult -- at law -- to be similarly situated. For example, Jewish men wear yarmulke, Muslim women a hijab or Sikh men a turban. But a Humanist? In one discussion I had, the question was whether a person (any person) who wanted to a baseball style cap at work where persons of religion where allowed to wear head coverings as an accommodation of religion. The Humanist hypothetically wanted to wear the cap simply because (a) he liked it or (b) he was bald -- neither a sincerely held religious belief. If a head covering is a head covering is a head covering, is not the Humanist entitled to the same civil rights as a Jew, Muslim or Sikh? #2 - Perhaps a better example would a Humanist who objected to serving in the military and killing on humanism grounds. The belief could be sincerely held -- but not universally held by Secular Humanists. And again, no sacred text to confirm. #3 - An interesting case is currently being litigated in Wisconsin by the Freedom From Religion Foundation in which it is arguing that its Atheist personnel (whom the FFRF board authorized a housing allowance) are entitled to take the Section 107 parsonage housing allowance exemption on their federal income tax returns. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter 6809 Kincaid Avenue Falls Church, VA 22042 703-533-0236 On April 12, 2012 at 7:15 PM Marty Lederman lederman.ma...@gmail.com wrote: Just a slight emendation to Doug's post, with which I think he'll agree: Yes, virtually every Justice has concluded that religious accommodations *can be* constitutional, at least if they alleviate significant state-imposed burdens on religious exercise, as the Ohio prison accommodation would appear to do here. But that doesn't mean all such accommodations *are* constitutional. In particular, serious constitutional questions can be raised where the accommodation imposes a significant burden on third parties, and perhaps also where analogous secular interests are not treated equally (the latter concern being most acute where the accommodation creates a discrepancy in the treatment of other first amendment interests, such as speech and assembly).
RE: Statement on Religious Liberty from USCCB
In fairness to the others on the list, I think people who are posting things should actually their names and even give an affiliation, if they have one. I have no idea who Bob is. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of b...@jmcenter.org [b...@jmcenter.org] Sent: Thursday, April 19, 2012 11:13 AM To: Law Religion issues for Law Academics Subject: Re: Statement on Religious Liberty from USCCB Catholics have gone from being persecuted in the U.S. (early years of our nation) to their hey day in the 1950's when the Knights of Columbus pushed for inserting under god * into the Pledge of Allegiance (1954) to being in today's melting pot (pluralistic society) -- one of many. The Conference of Catholic Bishops is a big bully AND wrong headed. It's excruciatingly difficult for them to play by the rules that others, including nontheists, must follow. They are fighting a war of survival (due to their religion's irrelevance in the modern era), not of religious liberty. The bishops reference to MLK is an insult. MLK fought for equality, not preferential treatment as the bishops are seeking. I doubt that there will be significant civil disobedience because Catholics are being asked to act like their neighbors, no more, no less. As extreme as the bishops appear to be, I'm surprised that they haven't turned to the Declaration of Independence to justify a call for revolution to overthrow our secular form of government established in 1789 and return to pre-Enlightenment times. * It was painful for me yesterday to hear daughter's first grade class recite the Pledge with under god. If the bishops are really interested in religious liberty, let's strip all the advancements (or establishments) of religion out of federal, state and local governments. I've considered challenging the 1954 Pledge, but the Supreme Court did a job my friend Mike Newdow ( Newdow v. Elk Grove (2004)) and the 4th Circuit (where I live) thinks that god is a patriot. There will be a Resurrection of that fight sometime between 40 days and 40 years. Bob On April 13, 2012 at 6:47 AM Marty Lederman lederman.ma...@gmail.com wrote: The Conference of Catholic Bishops just issued this major Statement on Religious Liberty: http://usccb.org/issues-and-action/religious-liberty/upload/Our_First_Most_Cherished_Liberty.pdf I'd be curious to hear what others think of it. Its basic thrust is that religious liberty is now acutely under attack in the U.S., in a way it has not been in quite a while. Indeed, what is at stake is no less than whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Do you think they've made the case for such an indictment? Furthermore, it quotes liberally from Dr. King's letter from the Birmingham jail, and urges citizens to have the courage not to obey the laws that allegedly are presenting this profound threat. (What are the odds there will be much civil disobedience of the laws they have in mind? -- not a rhetorical question.) And it invokes Lincoln at Gettysburg in asking for a fast for a new birth of freedom in our beloved country. Thoughts? ___ 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: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
The religious status quo could also be a non-observant or explicitly atheistic or agnostic household, which would also have to be respected under the rule that Eugene supports. The alternative is for the courts to determine which religions are extremist, a questionable role for the judiciary. Richard T. Foltin Director of National and Legislative Affairs Office of Government and International Affairs p: 202-785-5463, f: 202-659-9896 folt...@ajc.org Join us at the AJC Global Forum 2012, May 2-4 in Washington, D.C. REGISTER NOW Take Action with AJC by visiting the Action Center NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, April 20, 2012 9:24 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes I don't think it is a difficult question but disagree that the rule is sound. The standard should be the best interest of the child. Stability in an extremist religion is often not in the child's best interest, especially if the child is a girl. For example, the FLDS. The best interest of the child can also trump mainstream religions depending on the facts of the case. The focus must be the child. This sort of assumption that religious status quo is a social good is an unconstitutional preference for religion. This is a good example of when the application of a neutral generally applicable principle can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University New York, NY 10003 On Apr 20, 2012, at 9:09 AM, Volokh, Eugene vol...@law.ucla.edu wrote: There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html that faults the child custody law preference for stability of religious upbringing: When women leave arranged marriages in the ultra-Orthodox Jewish community -- and leave ultra-Orthodoxy more general -- they may sometimes lose custody of their children on the grounds that the person who remains within the community is more able to provide stability of religious upbringing. I'm inclined to say that this rule (which of course could equally apply to fathers who leave a religious community as well, though I don't know how relatively frequent such departures are) is a sound one, for children who are old enough to have some experience with the religion and thus some stake in stability of religious upbringing. To be sure, the rule does create some pressure against departing the faith, since often someone who leaves the group can no longer raise the children in the same religious environment even if she's willing to, because the group might no longer accept her; but this seems in this situation to be an acceptable and denominationally neutral rule (especially if it is equally applied to a parent who moves into a ultra-religious community which disrupts the stability of the children's nonreligious, or only mildly religious, upbringing). But I still thought I'd mention the op-ed, in case people think it's a difficult and interesting question. 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
RE: Court upholds prison no-pork policy against Establishment Clause challenge
Marty, I recently read a piece by Charles Haynes in the Feb. 2012 issue of Report from the Capital (Baptist Joint Committee), in which he pointed out that secular, even anti-religious groups, with the help of courts, were using the principle of equal treatment as a way of dealing with, if not stopping, various kinds of gov't aid to religion, e.g., Gideons' distributing Bibles in public schools and Christmas crèches on public property. In other words, according to the principle, if the Gideons can distribute Bibles in the schools and crèches can be placed on public property, then pagan literature can also be distributed in the schools and messages of atheism displayed in front of gov't buildings. Question: how likely is it that such secular groups and others, e.g., vegetarians, will try to use equal treatment and these aforementioned precedents to obtain exemptions from valid, secular laws that are more or less equal to those that religious person/groups can now obtain under RFRA and RLUIPA, and what are their chances of being successful? Ellis M. West From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, April 18, 2012 9:43 AM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge I think there's rough consensus here: Decisions such as Amos, Texas Monthly and Cutter establish that an effort to alleviate a substantial state-imposed burden on religious exercise -- as RFRA and RLUIPA do by terms -- is not the sort of impermissible religious purpose or objective that has itself been deemed fatal in other contexts. Nevertheless, such accommodations might still violate the First Amendment, on their face or as applied, if they impose undue substantial burdens on third parties, or if they give religion a preference in speech or assembly, or (possibly -- this suggested in Texas Monthly) if the burden being alleviated is not materially different in kind from burdens on analogous secular actors that the state does not endeavor to alleviate. That is to say, the constitutional analysis for such accommodations is best considered not in Lemon terms, but with regard to the discrete set of cases dealing with such accommodations, such as those listed above, as well as Thornton v. Caldor, Welsh/Gillette/Seeger, etc. On Mon, Apr 16, 2012 at 7:50 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Eugene-- that does not respond to my point. Cutter is a narrow opinion saying RLUIPA does not on its face violate the Establishment Clause. It does not say that every program considered under RLUIPA is safe from Establishment Clause attack. Marci On Apr 16, 2012, at 5:54 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Well, Ellis was arguing that the issue was whether RFRA and RLUIPA ... are secular in purpose and effect. I read Cutter as concluding that they are, though indeed particular accommodations implemented out of a desire to avoid RLUIPA litigation might not be. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, April 16, 2012 1:33 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Cutter only addressed the facial Establishment Clause attack on the prison provisions of RLUIPA. It did not protect any particular program or exemption from attack Marci On Apr 12, 2012, at 7:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Maybe it would and maybe it wouldn't, but I don't think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever primary effect might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being secular in purpose and effect, the Supreme Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn't impress any of the Justices, even Stevens. But even if RLUIPA didn't exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge I should
Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
The alternative is to focus on what is in the best interests of the child, e.g., education, health. Not being forced to get married at 13 and have children... Marci The religious status quo could also be a non-observant or explicitly atheistic r agnostic household, which would also have to be respected under the rule that ugene supports. The alternative is for the courts to determine which religions re extremist, a questionable role for the judiciary. Richard T. Foltin irector of National and Legislative Affairs ffice of Government and International Affairs : 202-785-5463, f: 202-659-9896 olt...@ajc.org Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Richard Foltin folt...@ajc.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Apr 20, 2012 8:32 am Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes The religious status quo could also be a non-observant or explicitly atheistic r agnostic household, which would also have to be respected under the rule that ugene supports. The alternative is for the courts to determine which religions re extremist, a questionable role for the judiciary. Richard T. Foltin irector of National and Legislative Affairs ffice of Government and International Affairs : 202-785-5463, f: 202-659-9896 olt...@ajc.org oin us at the AJC Global Forum 2012, May 2-4 in Washington, D.C. EGISTER NOW ake Action with AJC by visiting the Action Center OTICE his email may contain confidential and/or privileged material and is intended or the sole use of the intended recipient(s). If you are not the intended ecipient, please be advised that you have received this email in error and that ny use, disclosure, copying, distribution or other transmission is prohibited, mproper and may be unlawful. If you have received this email in error, you ust destroy this email and kindly notify the sender by reply email. If this mail contains the word CONFIDENTIAL in its Subject line, then even a valid ecipient must hold it in confidence and not distribute or disclose it. In such ase ONLY the author of the email has permission to forward or otherwise istribute it or disclose its contents to others. Original Message- rom: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] n Behalf Of Marci Hamilton ent: Friday, April 20, 2012 9:24 AM o: Law Religion issues for Law Academics c: Law Religion issues for Law Academics ubject: Re: Mothers leaving ultra-religious groups, and religious upbringing as factor in custody disputes I don't think it is a difficult question but disagree that the rule is sound. he standard should be the best interest of the child. Stability in an xtremist religion is often not in the child's best interest, especially if the hild is a girl. or example, the FLDS. The best interest of the child can also trump mainstream eligions depending on the facts of the case. The focus must be the child. This sort of assumption that religious status quo is a social good is an nconstitutional preference for religion. his is a good example of when the application of a neutral generally applicable rinciple can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton aul R. Verkuil Chair in Public Law enjamin N. Cardozo School of Law eshiva University ew York, NY 10003 On Apr 20, 2012, at 9:09 AM, Volokh, Eugene vol...@law.ucla.edu wrote: There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html hat faults the child custody law preference for stability of religious pbringing: When women leave arranged marriages in the ultra-Orthodox Jewish ommunity -- and leave ultra-Orthodoxy more general -- they may sometimes lose ustody of their children on the grounds that the person who remains within the ommunity is more able to provide stability of religious upbringing. I'm inclined to say that this rule (which of course could equally apply to athers who leave a religious community as well, though I don't know how elatively frequent such departures are) is a sound one, for children who are ld enough to have some experience with the religion and thus some stake in tability of religious upbringing. To be sure, the rule does create some ressure against departing the faith, since often someone who leaves the group an no longer raise the children in the same religious environment even if she's illing to, because the group might no longer accept her; but this seems in this ituation to be an acceptable and denominationally neutral rule (especially if t is equally applied to a parent who moves into a ultra-religious community hich disrupts the stability of the children's
Re: Court upholds prison no-pork policy against Establishment Clause challenge
I think there's rough consensus here: Decisions such as Amos, Texas Monthly and Cutter establish that an effort to alleviate a substantial *state-imposed* burden on religious exercise -- as RFRA and RLUIPA do by terms -- is not the sort of impermissible religious purpose or objective that has itself been deemed fatal in other contexts. Nevertheless, such accommodations might still violate the First Amendment, on their face or as applied, if they impose undue substantial burdens on third parties, or if they give religion a preference in speech or assembly, or (possibly -- this suggested in Texas Monthly) if the burden being alleviated is not materially different in kind from burdens on analogous secular actors that the state does not endeavor to alleviate. That is to say, the constitutional analysis for such accommodations is best considered not in Lemon terms, but with regard to the discrete set of cases dealing with such accommodations, such as those listed above, as well as Thornton v. Caldor, Welsh/Gillette/Seeger, etc. On Mon, Apr 16, 2012 at 7:50 PM, Marci Hamilton hamilto...@aol.com wrote: Eugene-- that does not respond to my point. Cutter is a narrow opinion saying RLUIPA does not on its face violate the Establishment Clause. It does not say that every program considered under RLUIPA is safe from Establishment Clause attack. Marci On Apr 16, 2012, at 5:54 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, Ellis was arguing that “the issue” was whether “RFRA and RLUIPA ... are secular in purpose and effect.” I read *Cutter *as concluding that they are, though indeed particular accommodations implemented out of a desire to avoid RLUIPA litigation might not be. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Monday, April 16, 2012 1:33 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: Court upholds prison no-pork policy against Establishment Clause challenge ** ** Cutter only addressed the facial Establishment Clause attack on the prison provisions of RLUIPA. It did not protect any particular program or exemption from attack ** ** Marci On Apr 12, 2012, at 7:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Maybe it would and maybe it wouldn’t, but I don’t think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever “primary effect” might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being “secular in purpose and effect,” the Supreme Court unanimously said in *Cutter* that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn’t impress any of the Justices, even Stevens. But even if RLUIPA didn’t exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *West, Ellis *Sent:* Thursday, April 12, 2012 2:39 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Court upholds prison no-pork policy against Establishment Clause challenge I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *West, Ellis *Sent:* Thursday, April 12, 2012 5:21 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Court upholds prison no-pork policy against Establishment Clause challenge Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue. Suppose these two laws did not exist. Then would the prison policy in question be secular in nature? The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons. For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners. Ellis M. West Emeritus Professor of Political Science University of
