help wanted

2016-02-22 Thread Steven Jamar 
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



-- 
Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

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Re: help wanted

2016-02-22 Thread Ed Darrell 
How does Congress get around the first requirement of laws on religion, that 
"Congress shall make no law?"

Interesting question, but like the computer said in War Games, perhaps "the 
only way to win is not to play." 

Ed DarrellDallas


 
  From: Steven Jamar 
 To: Law Religion & Law List  
 Sent: Monday, February 22, 2016 10:38 AM
 Subject: help wanted
   
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:
"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”
Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.
So, help wanted.
Steve


-- 
Prof. Steven D. Jamar                   
Howard University School of Law vox:  202-806-8017          
fax:  202-806-8567
http://sdjlaw.org
“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

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RE: help wanted

2016-02-22 Thread Greg Hamilton 
From my vantage point in introducing, shepherding and helping to pass Idaho’s 
Free Exercise of Religion Act of 2000, and in failing with both Alaska and 
Oregon state Religious Freedom Restoration Act efforts over an 18-year period 
since 1998 is mostly a political one, albeit a constitutional one. It is 
obvious why, given the problem under the current circumstances—the U.S. Supreme 
Court’s upholding of same-sex marriage as constitutional under the Equal 
Protection Clause, which we don’t consider to be an unhappy problem.

We helped defeat Montana’s radical RFRA bill proposal in the 2015 legislative 
session because it had all kinds of Establishment Clause problems, along with 
attempting to provide blank exemptions to small business owners, which we 
believe are best handled by the courts when factoring in motivation and context 
of each situation. A similar state religious freedom restoration act proposal 
was introduced in Washington State, but it didn’t make it out of Committee for 
similar reasons.

Finally, isn’t Title VII anti-discrimination/accommodation law, along with the 
Federal RFRA law, more than already satisfactory to address this matter 
involving state and federal employees?

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.com

[NRLA2013-final-350px]

Championing Religious Freedom and Human Rights

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, February 22, 2016 8:39 AM
To: Law Religion & Law List 
Subject: help wanted

How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

___
To post, send message to Religionlaw@lists.ucla.edu
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: help wanted

2016-02-22 Thread Volokh, Eugene 
   As Cutter v. Wilkinson unanimously held, laws that create 
religious accommodations are not necessarily seen as “respecting an 
establishment of religion” (though some particular accommodations might indeed 
be unconstitutional establishments).  You can agree with that conclusion or 
not, but it’s pretty well settled.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Monday, February 22, 2016 10:50 AM
To: Law & Religion issues for Law Academics 
Subject: Re: help wanted

How does Congress get around the first requirement of laws on religion, that 
"Congress shall make no law?"

Interesting question, but like the computer said in War Games, perhaps "the 
only way to win is not to play."
Ed Darrell
Dallas


From: Steven Jamar mailto:stevenja...@gmail.com>>
To: Law Religion & Law List 
mailto:religionlaw@lists.ucla.edu>>
Sent: Monday, February 22, 2016 10:38 AM
Subject: help wanted

How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis


___
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Religionlaw@lists.ucla.edu
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Re: help wanted

2016-02-22 Thread Ira Lupu 
Try the spending power.  But why would Congress want to do this, rather
than leave it to each state? And if Congress did, why not include a
provision that would specify that the law does not apply to exemptions that
would cause significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar  wrote:

> How might Congress draft a federal law that requires states to accommodate
> religious beliefs so that state employees are free to refuse to perform
> tasks that are contrary to their religious beliefs?  We have the Boerne
> problems of making a record and RFRA being held to be too much of a
> bludgeon.  But assuming we could somehow get past that, what would the
> language be?  Could this work:
>
> "Every state must accommodate the religious beliefs and practices of its
> employees and those persons with which it contracts by exempting them from
> performing tasks that are contrary to their religious beliefs.”
>
> Even assuming the record-requirement part of Boerne could be met, I just
> can’t seem to craft language that I think would be likely to pass
> constitutional muster.
>
> So, help wanted.
>
> Steve
>
>
>
> --
> Prof. Steven D. Jamar
> Howard University School of Law
> vox:  202-806-8017
> fax:  202-806-8567
> http://sdjlaw.org
>
> “It’s not the note you play that’s the wrong note – it’s the note you
> play afterwards that makes it right or wrong.”
>
> Miles Davis
>
>

-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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RE: help wanted

2016-02-22 Thread Volokh, Eugene 
   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
mailto:stevenja...@gmail.com>> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: help wanted

2016-02-22 Thread Steven Jamar 
Well, the court has said that accommodating religion is not an establishment . 
. . . 


> On Feb 22, 2016, at 1:50 PM, Ed Darrell  wrote:
> 
> How does Congress get around the first requirement of laws on religion, that 
> "Congress shall make no law?"
> 
> Interesting question, but like the computer said in War Games, perhaps "the 
> only way to win is not to play." 
> 
> Ed Darrell
> Dallas
> 
> 
> From: Steven Jamar 
> To: Law Religion & Law List  
> Sent: Monday, February 22, 2016 10:38 AM
> Subject: help wanted
> 
> How might Congress draft a federal law that requires states to accommodate 
> religious beliefs so that state employees are free to refuse to perform tasks 
> that are contrary to their religious beliefs?  We have the Boerne problems of 
> making a record and RFRA being held to be too much of a bludgeon.  But 
> assuming we could somehow get past that, what would the language be?  Could 
> this work:
> 
> "Every state must accommodate the religious beliefs and practices of its 
> employees and those persons with which it contracts by exempting them from 
> performing tasks that are contrary to their religious beliefs.”
> 
> Even assuming the record-requirement part of Boerne could be met, I just 
> can’t seem to craft language that I think would be likely to pass 
> constitutional muster.
> 
> So, help wanted.
> 
> Steve
> 
> 
> 
> -- 
> Prof. Steven D. Jamar   
> Howard University School of Law 
> vox:  202-806-8017  
> fax:  202-806-8567
> http://sdjlaw.org 
> 
> “It’s not the note you play that’s the wrong note – it’s the note you play 
> afterwards that makes it right or wrong.”
> 
> Miles Davis
> 
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> 
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> 
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"A word is not a crystal, transparent and unchanged, it is the skin of a living 
thought and may vary greatly in color and content according to the 
circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)







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Re: help wanted

2016-02-22 Thread Steven Jamar 
I don’t think Title VII does the work here — the undue hardship standard is so 
de minimis as to be illusory in most cases where it would matter.


> On Feb 22, 2016, at 1:51 PM, Greg Hamilton  wrote:
> 
> From my vantage point in introducing, shepherding and helping to pass Idaho’s 
> Free Exercise of Religion Act of 2000, and in failing with both Alaska and 
> Oregon state Religious Freedom Restoration Act efforts over an 18-year period 
> since 1998 is mostly a political one, albeit a constitutional one. It is 
> obvious why, given the problem under the current circumstances—the U.S. 
> Supreme Court’s upholding of same-sex marriage as constitutional under the 
> Equal Protection Clause, which we don’t consider to be an unhappy problem. <>
>  
> We helped defeat Montana’s radical RFRA bill proposal in the 2015 legislative 
> session because it had all kinds of Establishment Clause problems, along with 
> attempting to provide blank exemptions to small business owners, which we 
> believe are best handled by the courts when factoring in motivation and 
> context of each situation. A similar state religious freedom restoration act 
> proposal was introduced in Washington State, but it didn’t make it out of 
> Committee for similar reasons.
>  
> Finally, isn’t Title VII anti-discrimination/accommodation law, along with 
> the Federal RFRA law, more than already satisfactory to address this matter 
> involving state and federal employees?
>  
> Gregory W. Hamilton, President
> Northwest Religious Liberty Association
> 5709 N. 20th Street
> Ridgefield, WA 98642
> Office: (360) 857-7040
> Website: www.nrla.com 
>  
>  
>  
> Championing Religious Freedom and Human Rights
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Steven Jamar
> Sent: Monday, February 22, 2016 8:39 AM
> To: Law Religion & Law List  >
> Subject: help wanted
>  
> How might Congress draft a federal law that requires states to accommodate 
> religious beliefs so that state employees are free to refuse to perform tasks 
> that are contrary to their religious beliefs?  We have the Boerne problems of 
> making a record and RFRA being held to be too much of a bludgeon.  But 
> assuming we could somehow get past that, what would the language be?  Could 
> this work:
>  
> "Every state must accommodate the religious beliefs and practices of its 
> employees and those persons with which it contracts by exempting them from 
> performing tasks that are contrary to their religious beliefs.”
>  
> Even assuming the record-requirement part of Boerne could be met, I just 
> can’t seem to craft language that I think would be likely to pass 
> constitutional muster.
>  
> So, help wanted.
>  
> Steve
>  
>  
>  
> -- 
> Prof. Steven D. Jamar   
> Howard University School of Law 
> vox:  202-806-8017  
> fax:  202-806-8567
> http://sdjlaw.org 
>  
> “It’s not the note you play that’s the wrong note – it’s the note you play 
> afterwards that makes it right or wrong.”
> 
> Miles Davis
>  
> ___
> 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
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."

Naomi Klein





___
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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: help wanted

2016-02-22 Thread Greg Hamilton 
True, but not in Oregon, New York and California where the standard for 
employer “undue hardship” is “significant cost and difficulty.”

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.com

[NRLA2013-final-350px]

Championing Religious Freedom and Human Rights

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, February 22, 2016 11:53 AM
To: Law Religion & Law List 
Subject: Re: help wanted

I don’t think Title VII does the work here — the undue hardship standard is so 
de minimis as to be illusory in most cases where it would matter.


On Feb 22, 2016, at 1:51 PM, Greg Hamilton 
mailto:greg.hamil...@nw.npuc.org>> wrote:

From my vantage point in introducing, shepherding and helping to pass Idaho’s 
Free Exercise of Religion Act of 2000, and in failing with both Alaska and 
Oregon state Religious Freedom Restoration Act efforts over an 18-year period 
since 1998 is mostly a political one, albeit a constitutional one. It is 
obvious why, given the problem under the current circumstances—the U.S. Supreme 
Court’s upholding of same-sex marriage as constitutional under the Equal 
Protection Clause, which we don’t consider to be an unhappy problem.

We helped defeat Montana’s radical RFRA bill proposal in the 2015 legislative 
session because it had all kinds of Establishment Clause problems, along with 
attempting to provide blank exemptions to small business owners, which we 
believe are best handled by the courts when factoring in motivation and context 
of each situation. A similar state religious freedom restoration act proposal 
was introduced in Washington State, but it didn’t make it out of Committee for 
similar reasons.

Finally, isn’t Title VII anti-discrimination/accommodation law, along with the 
Federal RFRA law, more than already satisfactory to address this matter 
involving state and federal employees?

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.com



Championing Religious Freedom and Human Rights

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, February 22, 2016 8:39 AM
To: Law Religion & Law List 
mailto:religionlaw@lists.ucla.edu>>
Subject: help wanted

How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis

___
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
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."

Naomi Klein




___
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To subscribe, unsubscribe, change options, or get password, see 
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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: help wanted

2016-02-22 Thread Scarberry, Mark 
What about Seminole Tribe?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 22, 2016 11:39 AM
To: Law & Religion issues for Law Academics
Subject: RE: help wanted

   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
mailto:stevenja...@gmail.com>> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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RE: help wanted

2016-02-22 Thread Volokh, Eugene 
   I agree that there might be Eleventh Amendment problems here, as 
there may well be with regard to the Title VII religious accommodation 
requirement, see Holmes v. Marion County Office of Family and Children, 349 
F.3d 914 (7th Cir. 2003); but a statute could avoid them by allowing lawsuits 
by the federal government, or (I take it) by authorizing Ex-parte-Young-like 
injunctions, no?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, February 22, 2016 12:07 PM
To: Law & Religion issues for Law Academics 
Subject: RE: help wanted

What about Seminole Tribe?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 22, 2016 11:39 AM
To: Law & Religion issues for Law Academics
Subject: RE: help wanted

   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
mailto:stevenja...@gmail.com>> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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: help wanted

2016-02-22 Thread James Oleske 
Some years back, I wrote an article about whether Title VII's reasonable
accommodation provision is valid Section 5 enforcement legislation
abrogating state sovereign immunity (http://ssrn.com/abstract=476621).
Here's the conclusion:

"When Title VII's reasonable-accommodation provision was enacted in 1972,
it was a fitting compliment to the Supreme Court's own pro-accommodation
view of the Free Exercise Clause. However, the Court has since changed its
approach, and [free exercise] accommodations are now the constitutional
exception, not the rule. As a result, a serious question arises under the
Court's current federalism jurisprudence as to whether the
reasonable-accommodation provision can be considered appropriate Section 5
legislation that abrogates state sovereign immunity. This Article proposes
that the Court answer that question by focusing on the relationship between
the reasonable-accommodation provision and the selective-exemption rule
that was announced in Smith and reaffirmed in Lukumi. By doing so, the
Court could preserve the ability of state employees to vindicate their
rights under Title VII while bringing much needed clarity to its free
exercise and Section 5 doctrines."


As I discuss in the article, the reasonable-accommodation provision would
be on the strongest footing if the Court were to hold that the Smith/Lukumi
selective-exemption rule can be implicated, and heightened scrutiny
triggered, not only when the government maintains a system of
individualized exemptions, but also when a government rule has categorical
secular exemptions. This issue has divided the lower courts.

Assuming categorical exemptions can sometimes trigger the
selective-exemption rule, the question then arises as to what type of
categorical exemptions will trigger the rule, and under what circumstances.
I've come to believe that a proper interpretation of the
selective-exemption rule would lead to the rule being implicated only
rarely in cases involving categorical exemptions, a view I've outlined in a
more recent article (http://ssrn.com/abstract=2216207). But many leading
scholars, including several on this list, take a broader view of the rule
-- a view laid out in an amicus brief filed last month in the Supreme
Court:

http://www.becketfund.org/wp-content/uploads/2016/02/Stormans-Brief-of-Religious-Liberty-Scholars.pdf

If the Court grants cert in Stormans and takes the broader view of the
Smith/Lukumi selective-exemption rule, I think a very strong case could be
made that Title VII's reasonable-accommodation provision is valid Section 5
enforcement legislation. The case would be tougher, though not impossible,
if the Court takes a narrower view of the selective-exemption rule.

- Jim



On Mon, Feb 22, 2016 at 12:24 PM, Volokh, Eugene 
wrote:

>I agree that there might be Eleventh Amendment problems
> here, as there may well be with regard to the Title VII religious
> accommodation requirement, see *Holmes v. Marion County Office of Family
> and Children*, 349 F.3d 914 (7th Cir. 2003); but a statute could avoid
> them by allowing lawsuits by the federal government, or (I take it) by
> authorizing *Ex-parte-Young*-like injunctions, no?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Scarberry, Mark
> *Sent:* Monday, February 22, 2016 12:07 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* RE: help wanted
>
>
>
> What about Seminole Tribe?
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Volokh, Eugene
> *Sent:* Monday, February 22, 2016 11:39 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: help wanted
>
>
>
>If the question is just of Congressional power, I would
> think that the Commerce Clause would be more than ample – just as Title VII
> can apply to commerce in labor (whether by government employers or private
> ones), so can this hypothetical statute.  (I think the proposed statute
> would be far too broad, and might pose Thornton v. Caldor
> undue-burden-on-third-parties concerns; but it wouldn’t pose Boerne v.
> Flores enumerated-power concerns.)
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Ira Lupu
> *Sent:* Monday, February 22, 2016 11:17 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: help wanted
>
>
>
> Try the spending power.  But why would Congress want to do this, rather
> than leave it to each state? And if Congress did, why not include a
> provision that would specify that the law does not apply to exemptions that
> would cause significant harm to third parties?
>
> On Monday, February 22, 2016, Steven Jamar  wrote:
>
> How might Congress draft