Re: Johnson Amendment E.O.

[Alan E Brownstein]

Tom,

I understand the lines are difficult to draw and I certainly do not claim to 
have a fully developed framework for drawing them. And I have some sympathy for 
the position that worship services should be characterized as religious 
exercise rather than speech so that accommodations of worship services and 
houses of worship do not necessarily trigger rigorous free speech review.


What I have not seen, however, are scholars and advocates who argue for 
distinctive treatment of worship and houses of worship taking the necessary 
corollary step and recognizing that the exclusion of worship services from 
public property or the exclusion of houses of worship from general funding 
programs does not trigger rigorous free speech review.


Would you agree with me, Tom, that in those situations where free exercise 
principles control and justify distinctive treatment for religion, religious 
claimants cannot also claim that free speech principles control and require 
equal treatment.


Alan




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 5:52:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I don't have a problem with that general idea, Alan. In some cases where 
religious activity takes the form of speech, free exercise principles are most 
controlling and may call for distinctive protection; in some cases free speech 
principles are the most controlling and call generally for equal treatment.


I don't know exactly where those lines are, but it seems to me that sermons by 
religious leaders to the congregation present a strong case for a distinctive 
principle of non-interference. (I brought up institutional separation as a 
distinctive religion-clause principle; it's not a free speech principle.) 
Hosanna-Tabor and other decisions tell us religious leadership is a core area 
of free exercise, as is the congregational setting. For government officials to 
survey and parse the meaning of sermons is also a core problem; and if the 
electioneering restriction were seriously enforced against churches, it would 
require such parsing because of the IRS's stated position that the restriction 
covers more than express advocacy. And if it were enforced, the burden would be 
very serious: removing tax deductibility entirely, and probably substantially 
reducing resources, based on one instance deemed to be a candidate endorsement.


I've framed these arguments as RFRA arguments, in article on "government 
benefits and religious organizational freedom" from 2009, which appears to be 
online only at SSRN 
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301685; see pp. 58-62, 
66-67). Lloyd Mayer makes by far the most complete RFRA analysis in his B.U. L. 
Rev. piece "Pulpit and Politics," also from 2009, 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273602, at 1161-97.



-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 5:30:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.



Whoops. I accidentally hit "send" too quickly on this post. I was going to ask 
you, Tom, how you decide when religious speech gets more protection than other 
speech and whether it only does so when clergy are speakers. Also, what would 
be wrong with characterizing those clergy expressive activities you think 
deserve protection against state interference as religious exercise rather than 
speech for constitutional purposes?


Alan



From: Alan E Brownstein
Sent: Thursday, May 4, 2017 3:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not 

Re: Johnson Amendment E.O.

[Alan E Brownstein]

Whoops. I accidentally hit "send" too quickly on this post. I was going to ask 
you, Tom, how you decide when religious speech gets more protection than other 
speech and whether it only does so when clergy are speakers. Also, what would 
be wrong with characterizing those clergy expressive activities you think 
deserve protection against state interference as religious exercise rather than 
speech for constitutional purposes?


Alan


____
From: Alan E Brownstein
Sent: Thursday, May 4, 2017 3:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not involve treating religious speech differently than non-religious 
speech. It involves treating religious conduct differently than non-religious 
conduct. Religious accommodations do that all the time.


Also, I think that when we confront religious expressive activity that in real 
terms is both religious exercise and speech, it may be that the best decision 
in some cases is to characterize the religious expressive activity as religious 
exercise rather than speech. Thus, for example, it may be that cases like Good 
News Club should not have been decided on free speech grounds, but rather as 
discrimination against religious exercise. That would arguably permit an 
accommodation for speech that is part of a worship without violating free 
speech purposes. Maybe the better analysis is that worship services should be 
considered religious exercise rather than speech for constitutional purposes. 
But that characterization would have to apply across the board.


The alternative is to argue that a worship service is speech for the purpose of 
protecting it against discrimination, but it isn't speech for the purpose of 
evaluating discriminatory laws that favor it.


One can argue that free exercise values justify discriminating in favor of 
religious speech in some circumstances so that viewpoint discrimination in 
favor of religious speech withstands rigorous review. But that really 
challenges core free speech principles when discrimination against the same 
religious expressive activity is condemned as viewpoint discrimination.


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 2:04:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutiona

Re: Johnson Amendment E.O.

[Alan E Brownstein]

Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not involve treating religious speech differently than non-religious 
speech. It involves treating religious conduct differently than non-religious 
conduct. Religious accommodations do that all the time.


Also, I think that when we confront religious expressive activity that in real 
terms is both religious exercise and speech, it may be that the best decision 
in some cases is to characterize the religious expressive activity as religious 
exercise rather than speech. Thus, for example, it may be that cases like Good 
News Club should not have been decided on free speech grounds, but rather as 
discrimination against religious exercise. That would arguably permit an 
accommodation for speech that is part of a worship without violating free 
speech purposes. Maybe the better analysis is that worship services should be 
considered religious exercise rather than speech for constitutional purposes. 
But that characterization would have to apply across the board.


The alternative is to argue that a worship service is speech for the purpose of 
protecting it against discrimination, but it isn't speech for the purpose of 
evaluating discriminatory laws that favor it.


One can argue that free exercise values justify discriminating in favor of 
religious speech in some circumstances so that viewpoint discrimination in 
favor of religious speech withstands rigorous review. But that really 
challenges core free speech principles when discrimination against the same 
religious expressive activity is condemned as viewpoint discrimination.


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 2:04:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrut

Re: Johnson Amendment E.O.

[Alan E Brownstein]

I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrutiny review. (And then, of course, there are 
establishment clause concerns.)


As to the policy issues raised by legislation to limit the Johnson Amendment, 
Rabbi Saperstein's arguments are persuasive, but probably understate the 
consequences of a formal change in this tax provision. Sermons are broadcast 
today. Religious groups engage in door to door proselytizing. Many houses of 
worship have large signs communicating religious messages to the community. 
Religious institutions communicate through social media to their congregants 
and to the general public. All of this is done in the ordinary course of their 
activities. All of these actions could be employed to support candidates during 
an election.


Further, there is a reason so many clergy oppose tampering with the Amendment. 
They do not want their houses of worship and institutions transformed and 
divided by partisan politics. And they know that once some congregations in 
their communities start to endorse candidates, it will be difficult for others 
to remain silent and cede the public election square exclusively to other 
faiths.


Shameless plug. 
https://www.usnews.com/opinion/debate-club/articles/2017-02-10/congress-should-think-hard-before-repealing-the-johnson-amendment


Alan Brownstein





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Laycock, H Douglas (hdl5c) 
Sent: Thursday, May 4, 2017 9:05:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Johnson Amendment E.O.


Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.


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 Marty Lederman
Sent: Thursday, May 4, 2017 11:54 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Johnson Amendment E.O.

Just came across this from David Saperstein’s 
testimony
 today.  He makes the point much better than I did--I would only add that 
virtually all of his hypos could be extended beyond the church, to countless 
activities of all 501(c)(3) organizations:
Let me offer some hypotheticals of the implications of a proposal that says any 
statement is allowed that does not involve extra expenses:

Suppose instead of one 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

Not all of the same folk who complain about government funding.


There are still some of us left who support the old model of significant 
limitations on government funding of religious institutions and significant 
protection of religious institutions from government regulation and 
interference.


What I see developing, unhappily, is both conservatives and liberals accepting 
a minimalist, formalistic understanding of the religion clauses. Constitutional 
prohibitions will invalidate overt discrimination against religion through 
regulation or funding.

Neutral regulations and conditions accompanying funding will be grist for the 
political mill. I suspect that the end result will be increased polarization 
and antipathy in our society and a patchwork quilt of distinct environments. A 
lot may depend on where one lives.


Alan


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marc Stern 
Sent: Wednesday, April 26, 2017 2:47:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:
Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

What I find most surprising is that the demise of the argument that government 
funding will undermine religious freedom is occurring at a time when the 
argument may well turn out to be accurate at least in some locations.


It may be that for many people on the left the failure of the church autonomy 
and religious freedom arguments against state funding of religious institutions 
reflects a lack of commitment to both of these values and a reluctance to 
present arguments that reinforce either interest.


Government control will follow government funding. Not everyone thinks that is 
a bad result today.


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Eric J Segall 
Sent: Wednesday, April 26, 2017 2:16:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

I think the question Michael poses is more complicated than his posts suggest 
in important respects, but I also think the dischordant rights argument he 
presents has substantial force.


>From an analytic perspective, because religion implicates not only liberty 
>values but group and identity values, and speech values, I think there are 
>cases where religion may need to be treated differently than non-religion and 
>situations where it should be treated the same as non-religion. But equality 
>and speech consequences present powerful counterweights to the idea that 
>religious institutions should as a general matter receive special exemptions 
>from general laws because of their distinctive nature while at the same time 
>be eligible for government grants and largess on the same terms as their 
>secular counterparts.


>From a policy perspective, I might rephrase Michael's question this way (my 
>apologies Michael if my rephrasing does not capture your meaning), If a 
>pre-school operated by an adjacent church should be conceptualized as 
>religious for the purpose of evaluating claims that 1. unlike its secular 
>counterparts, it should be permitted to discriminate on the basis of religious 
>belief and conduct in hiring staff -- including playground monitors; 2. unlike 
>its secular counterparts it should be permitted to discriminate on the basis 
>of religious belief and conduct in admitting students -- even if most of what 
>the students do is to play on the playground; 3. unlike its secular 
>counterparts it should be provided additional discretion in designing its 
>curriculum, and 4. unlike its secular counterparts, it should be protected 
>against certain burdensome land use regulations -- then why shouldn't the 
>pre-school be conceptualized as religious for the purpose of determining its 
>eligibility to receive government funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: religionlaw-boun...@lists.ucla.edu  
on behalf of Michael Peabody 
Sent: Thursday, April 20, 2017 8:47:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing 

Religious objections to deportation policies

[Alan E Brownstein]

Has anyone written anything about (or given some thought to) the possibility of 
RFRA being employed to challenge the federal government's deportation policies.


For example, might a professor or registrar at a private school be permitted to 
assert RFRA as a defense to a federal law requiring her to seek and disclose 
the immigration status of students?


Could a "sanctuary city" assert that it is relieving any of its employees from 
any obligation to disclose information about the immigration status of persons 
within the jurisdiction to federal immigration authorities if it would violate 
their religious beliefs to do so? Might the city argue that such an order 
complies with federal law because it is mandated by RFRA?


May a church provide sanctuary to an undocumented refugee at risk of 
deportation and assert a RFRA claim to avoid prosecution for doing so? The 
church would assert it is prohibited by its beliefs from denying sanctuary in 
these circumstances.


I recognize, of course, that successfully asserting a substantial burden on 
religious exercise only shifts the burden to the government to justify its 
actions under strict scrutiny.


Alan Brownstein
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Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Alan E Brownstein]

Three quick thoughts.


1. It would be helpful at least as a first step to limit the passages in Hobby 
Lobby about substantial burden to which Doug refers to claims where the 
government requires religious individuals or institutions to so some thing that 
their religion prohibits (often complicity claims). I think one can reasonably 
argue that the Court's review of substantial burden need not be so deferential 
to the religious claimant in cases like this one -- where the claimant is 
arguing that the government is burdening her ability to do something that her 
religion requires or motivates her to do.


2. Marty's point is well taken. If a person's religion allows for alternative 
ways to satisfy obligations -- that is, there are alternative avenues for 
religious exercise that satisfy the requirement's of one's faith -- then there 
is a strong argument that the claimant's religious exercise is not being 
substantially burdened if only one of those alternatives is restricted. The 
problem is that a claimant may argue that his or her idiosyncratic beliefs may 
not recognize such alternatives as being even minimally acceptable. Court's 
could of course also try to argue that as a secular matter alternative ways of 
satisfying a religious requirement are equivalent to each other so that 
burdening one alternative is not substantial because the other remains 
available. My concern here is that religious mandates often involve ritual acts 
and I am not sure that the courts should be deciding that two arguably similar 
acts have equivalent ritual significance. That does not seem to be a problem in 
the case we are discussing, however.


3. if the reason for the signs being taken down is a rule that the military 
does not allow any signs containing personal messages visible to others in a 
work station, or some other general speech restriction, isn't it clear that a 
RFRA ruling in favor of the claimant in this case would violate the Free Speech 
Clause of the First Amendment? Requiring the government to satisfy a more 
rigorous standard of review to regulate religious speech than it must satisfy 
to regulate non-religious speech would be viewpoint discrimination in favor of 
religious speech which is subject to strict scrutiny review and presumptively 
unconstitutional.


Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Eric J Segall 
Sent: Monday, February 20, 2017 1:11:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

That's fair Doug.

e

Sent from my iPhone

On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA’s supporters overreach on some issues does not 
change the fact that RFRA’s opponents are overreaching on other issues.

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 Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics 
>; Marty Lederman 
>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


Beautifully said Doug. I would just add that the kind of potential abuse you 
are talking about is maybe inevitable when this kind of law becomes part of the 
culture wars, and RFRA certainly has become that. Even Justice Alito has given 
speeches saying the potential non-enforcement of RFRA has become a threat to 
"religious liberty."



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Laycock, H Douglas (hdl5c) 
>
Sent: Monday, February 20, 2017 3:37:26 PM
To: Law & Religion issues for Law Academics; Marty Lederman
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

This case may well be a trial lawyer’s failure to put on the evidence. Lawyers 
too often think the burden on religious practice is obvious, and fail to elicit 
the testimony that would clearly explain how and why the practice is religious 
and important and the challenged rule is a substantial burden. I suspect that 
more could have been offered here, but we don’t know that, and the record is 
what it is.

Passages in the Court’s opinion in Hobby Lobby invite the kind of argument that 
Paul is making. But reading those passages for their 

RE: Standing Rock

[Alan E Brownstein]

The Standing Rock case is only of several religious liberty cases that are 
likely to arise where, as Doug says “the political valences are reversed.” 
Obviously, there are already questions regarding the religious liberty and 
equality rights of Muslims. Also, it isn’t going to be too long before 
religious individuals and institutions demand exemptions from any government 
duty that makes them complicit with the government’s deportation policies or 
immigration restrictions because they are obligated by religious conscience to 
love the stranger because they know what it was like to be a stranger in a 
strange land.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Thursday, February 09, 2017 11:28 AM
To: Law & Religion issues for Law Academics
Subject: Standing Rock

The Standing Rock Sioux’s RFRA request for a TRO is here:

https://embed.contagiousmedia.com/embed/sub/item-ol3xgp-38nio?sb=10497046=1486655474=

They claim to own the waters of Lake Oahe, thus distinguishing unsuccessful 
religious liberty claims by tribes in Lyng, Navajo Nation, and Snoqualmie. 
Beginning at p.34, they also say that Navajo Nation and Snoqualmie (and by 
clear implication Lyng, although they don’t say that) are no longer good law. 
They are inconsistent with the passage in Hobby Lobby suggesting that the 
courts cannot inquire into the substantiality of any alleged burden on the 
exercise of religion. The Eighth Circuit was the only circuit to take those 
statements literally and at full value in the litigation culminating in Zubik, 
although this brief does not cite that case.

Does anyone expect the courts in general, or the conservative Justices in 
particular, to adhere to Hobby Lobby’s view of burden in a case like this, 
where the political valences are reversed?


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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Re: Sikhs in the Army

[Alan E Brownstein]

It is also worth noting that California Workplace Religious Freedom Act, 
enacted in 2012, not only imposed a stronger duty to accommodate religious 
employees on employers generally. It also explicitly included religious dress 
and grooming practices in the religious belief and observance protected by the 
Act. This language was in direct response to the concerns of the Sikh community 
in California.


Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Paul Finkelman 
Sent: Monday, January 9, 2017 10:50:31 AM
To: Law & Religion issues for Law Academics
Subject: Re: Sikhs in the Army

It is worth remembering that in Goldman v. Weinberger Justice Stevens had no 
problem accepting the Reagan administration's arguments that if Captain Goldman 
was allowed to wear a yarmulke then the whole military establishment would be 
under threat from a Sikh wanting to wear a turban.


**

Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
532 Barco Law Building
3900 Forbes Avenue
Pittsburgh, PA. 15260
paul.finkel...@pitt.edu
paul.finkel...@yahoo.com
o) 412-648-2079
c) 518.605.0296




From: Alan Hurst 
To: Law & Religion issues for Law Academics 
Sent: Monday, January 9, 2017 12:22 PM
Subject: Re: Sikhs in the Army

That's great news, Eric. Congrats, and thanks for sharing!

Alan

On Jan 9, 2017 10:12 AM, "Eric Rassbach" 
> wrote:

All --

Thought the list would be interested in this development:

http://www.becketfund.org/ 
sikh-military-victory/

Happy 2017,

Eric

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Re: Scalia's views of RFRA?

[Alan E Brownstein]

I have suggested to my students (Yeah, I'm still teaching one semester a year) 
that RFRA as construed in Hobby Lobby pretty much leaves it to each person's 
conscience to determine when they are substantially burdened by a federal law 
when the law allegedly compels them to do something that their religion 
prohibits.  Complicity arguments seem to have no limit other than sincerity.


But I also suggest that if the law allegedly make it more difficult for the 
individual to engage in some conduct that his or her religion  requires, then 
the substantial burden requirement still may have some teeth to it. State 
action that has only an incidental and attenuated connection to the burden on 
religious practice may be held not to substantially burden religious exercise. 
So if Department of Agriculture regulations unintentionally create a financial 
incentive that motivates some growers of peyote to shift to another crop and 
the more limited supply of peyote increases the price of obtaining this 
sacrament for members of the Native American faith that uses peyote in rituals, 
I don't think Hobby Lobby would preclude a court from holding that the 
regulations do not substantially burden the religious exercise of individuals 
who use peyote in religious rituals. Attenuation still matters for substantial 
burden purposes in cases involving state action that allegedly makes it more 
difficult for a person to practice his or her faith.


Am I wrong about that. Chip?


Alan


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 
Sent: Tuesday, November 22, 2016 1:37:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia's views of RFRA?

The Scalia opinion in Smith of course did not anticipate a law like RFRA; 
instead, he was referencing practice-specific accommodations (like a peyote 
prohibition that exempted Native American Church members who used peyote in 
sacraments.)

Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby 
Lobby, indeed makes "each conscience a law unto itself” with respect to what is 
burdensome to religious exercise. Nevertheless, judges still have to engage in 
"balancing" in light of RFRA's exception (re: whether application of the burden 
to the person furthers compelling governmental interests, and whether that is 
the least restrictive means to do so).  But the "law unto itself" quality 
associated with RFRA's rule means that the government will very frequently have 
to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith 
law ever had. So the balance seems highly tilted toward the government (though 
I strongly suspect it will not remain that way).

On Tue, Nov 22, 2016 at 4:26 PM, Case, Mary Anne 
> wrote:
The quoted language comes directly from Scalia’s opinion in Smith.  The full 
sentence is: ”It may fairly be said that leaving accommodation to the political 
process will place at a relative disadvantage those religious practices that 
are not widely engaged in; but that unavoidable consequence of democratic 
government must be preferred to a system in which each conscience is a law unto 
itself or in which judges weigh the social importance of all laws against the 
centrality of all religious beliefs.”  There thus seem to be 2 typical Scalia 
desiderata in tension with one another – the desire for clear rules and the 
desire that the laws have democratic warrant.  In the quoted sentence, he seems 
to be suggesting that sending accommodation back to the legislature will have 
the advantage of getting the courts out of the business of balancing, which he 
hated, but of course RFRA mandates precisely such balancing, unless it is read 
instead to “make each conscience a law unto itself.”

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Steven Jamar
Sent: Tuesday, November 22, 2016 3:20 PM
To: Law Religion & Law List
Subject: Re: Scalia's views of RFRA?

I never read Smith that way — it was a straight up carte blanche to the 
legislative and executive branches provided the law was neutral and generally 
applicable — no weighing of competing interests involved.

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

"A life directed chiefly toward the fulfillment of personal desires sooner or 
later always leads to bitter disappointment."

Albert Einstein


On Nov 22, 2016, at 4:07 PM, Case, Mary Anne 
> wrote:

judges the task of “weigh[ing] the social importance of all laws against the 
centrality of all religious beliefs”(Smith)

Exclusion of clergy from holding office

[Alan E Brownstein]

I have an odd question that I hope list members might be able to help me answer.


Do any list members know whether there were ever any federal restrictions on 
clergy serving as elected or appointed officers of the United States early on 
in our constitutional history that would parallel state restrictions on clergy 
holding office?


Please feel free to respond off list.


Thanks.


Alan Brownstein
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RE: Facially neutral accommodations motivated by some objectors' religious beliefs

[Alan E Brownstein]

I was focusing on the second part of Chip's post - not the first part. But  I 
think Chip's first argument may be more difficult to resolve than Eugene 
suggests. The first question would be whether as a theoretical matter there can 
be a technically facially neutral law that is so clearly a religious 
accommodation that it is the equivalent of Lukumi, but in reverse  - a 
religious gerrymander that has no other purpose than to permit members of a 
particular faith to practice their religion or to otherwise accommodate their 
beliefs. The second question would be exactly what criteria identifies such a 
gerrymandered accommodation. Third, if the state action can be characterized as 
a religious accommodation, then we would have to decide whether the harms 
imposed on third parties violate the Establishment Clause.

The limited location of the alleged accommodation would probably be relevant to 
the analysis, although it may not be dispositive. Still, suppose a faith 
community makes up a very large percentage of a neighborhood. The community is 
religiously opposed to women working outside the home and believes it would be 
sacrilegious for women to collect the garbage from their houses or drive a city 
run bus in the community's neighborhood on which they would ride. If the 
government accommodates the religious group by hiring only men to collect the 
garbage or drive the bus in this neighborhood (thus deviating from the hiring 
policies applied everywhere else in the city), would that violate the 
Establishment Clause? (Again, leaving equal protection issues aside).

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, June 06, 2016 3:47 PM
To: Law & Religion issues for Law Academics
Subject: Facially neutral accommodations motivated by some objectors' religious 
beliefs

   1.  Say that a state decides not to allow abortions at 
state-owned hospitals, because taxpayers object to paying for them.  We know 
this is constitutionally permissible, and doesn't violate the Establishment 
Clause, see Harris v. McRae.  It doesn't matter whether the taxpayers object to 
abortion for secular reasons or religious reasons; the state can choose not to 
fund them, without violating the Establishment Clause.  And that is so even 
though one can call this a "burden" on third parties, who as a result find it 
harder to get abortions.

   2.  Now say that a state doesn't regulate this at a state level, 
but leaves it for each hospital to make this decision (based on its sense of 
the preferences of local taxpayers, local employees, etc.).  Unsurprisingly, 
county hospitals in areas where anti-abortion sentiment is more common choose 
not to provide abortions, while county hospitals in other areas do provide 
them.  Does this somehow become an impermissible "religious gerrymander," 
simply because the state leaves this for local hospitals to decide?

   3.  If it doesn't violate the Establishment Clause for 
individual county hospitals to decide whether to provide abortions, why would 
it violate the Establishment Clause for individual city-run swimming pools to 
decide whether to provide single-sex swimming hours?  (Again, I set aside the 
question whether this violates the Equal Protection Clause, quite apart from 
the religious questions.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, June 06, 2016 2:21 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Jewish law, women's bodies, and accommodations

I think the answer to Chip's question is that an Establishment Clause analysis 
evaluating the harms caused by a religious accommodation does require a 
balancing of interests. Indeed, the balancing analysis would have significant 
similarities to the balancing necessary to implement a serious free exercise 
jurisprudence.
Balancing has its problems, but the alternatives seem worse: either we reject 
accommodations that impose costs on third parties -- an approach which severely 
limits accommodations -- or we allow all accommodations without regard to the 
costs they impose on third parties.
Note that this approach could include a variety of doctrinal nuances and 
distinctions as is true for free speech doctrine, but it is hard to avoid some 
role for balancing if we are going to take account of both the need for 
accommodations and the harms accommodations may impose on third parties.
Alan

Sent from my iPhone

On Jun 6, 2016, at 9:51 AM, "Ira Lupu" 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
I agree that it's not for the state to arbitrate between Hillel's and Meir's 
view about what is embedded i

Re: Jewish law, women's bodies, and accommodations

[Alan E Brownstein]

I think the answer to Chip's question is that an Establishment Clause analysis 
evaluating the harms caused by a religious accommodation does require a 
balancing of interests. Indeed, the balancing analysis would have significant 
similarities to the balancing necessary to implement a serious free exercise 
jurisprudence.
Balancing has its problems, but the alternatives seem worse: either we reject 
accommodations that impose costs on third parties -- an approach which severely 
limits accommodations -- or we allow all accommodations without regard to the 
costs they impose on third parties.
Note that this approach could include a variety of doctrinal nuances and 
distinctions as is true for free speech doctrine, but it is hard to avoid some 
role for balancing if we are going to take account of both the need for 
accommodations and the harms accommodations may impose on third parties.
Alan

Sent from my iPhone

On Jun 6, 2016, at 9:51 AM, "Ira Lupu" 
> wrote:

I agree that it's not for the state to arbitrate between Hillel's and Meir's 
view about what is embedded in Jewish law with respect to women's bodies.  But 
I want to go back to Eugene's earlier argument that 3rd party harms are not 
relevant to the Establishment Clause problem because the accommodation is not 
religion-specific -- that is, the hours are "women only," not "Jewish women 
only."  True enough, but there is still a gerrymander here -- this is not a 
City wide policy.  It applies only to this one neighborhood pool, in a 
neighborhood with a strong Orthodox Jewish presence.  (If the policy were 
city-wide, it would help all women who want female-only swimming hours, for 
whatever reason. The sex discrimination problem would remain.)  In light of the 
conspicuous religious gerrymander, perhaps we need to add Kiryas Joel to the 
mix of relevant cases.

When the policy is 1) motivated by religion specific concerns, and 2) 
geographically limited to reflect those concerns, perhaps the Caldor problem of 
harms to third parties (men, who want those hours to swim, and the weekday 
hours may be just as important to some of them as the Sunday hours) remains.  
If so, I repeat the question -- is the relevant test one of "balancing" 
religious accommodations against inconvenience to others?  How would we do 
that, with or without interrogating religious reasoning?

On Mon, Jun 6, 2016 at 12:20 PM, Meir Katz 
> wrote:
Hillel's assumption that "Jewish laws relating to sexual modesty have embedded 
within them, and reinforce, certain [negative] assumptions and norms about 
women's and girls' bodies [that are contrary to public policy]" is both 
incorrect and not widely held by those who observe those laws. The laws have a 
rather different purpose, one certainly not contrary to public policy, that was 
shared broadly by civil society until the 1950s. I would be interested to learn 
from where Hillel's assumption derives.

In any event, even if Hillel's assumption were arguably correct, it would still 
be inappropriate, as Eugene inquires, for a judge (or, for that matter, any 
third-party decision-maker) to use that assumption to bias his decisions. A 
civil judge cannot be in the position of deciding religious questions or 
determining the contours of religious law. For one to conclude that "Jewish 
laws relating to sexual modesty have embedded within them, and reinforce, 
certain [negative] assumptions," he would need to have a deep and rather 
sophisticated understanding not just of what those Jewish laws require, but 
also where they come from, why they exist, and how they impact those who follow 
them. That inquiry necessarily intrudes deeply into religious thought. Even if 
a civil judge were able to perform that inquiry properly and reach an accurate 
conclusion, it is not a proper role for that judge.

Moreover, as I intimated in my first paragraph, the assumption that Hillel 
reaches is contrary to the purpose and objective behind Jewish modesty laws as 
generally understood by its adherents. As a result, using the assumption to 
guide judicial decision-making would not merely improperly impose physical 
burdens on the religious adherents, it would also impose on them an alternative 
understanding as to what their religious laws actually mean. If the women (and 
men) who willingly subject themselves to religious modesty laws understand 
those laws as not as reinforcing norms and assumptions that are contrary to 
public policy (broadly defined), why should the contrary, and possibly 
unfounded, assumptions of a judge (or anyone) play any role at all in 
determining their entitlement to observe that law at state expense? And what 
authority does a civil judge have to tell them that their laws have some 
alternative purpose or function?

Similarly, false advertising and other claims against kosher certifying 
agencies and food manufacturers that 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Alan E Brownstein]

Very thoughtful and helpful post, Chris.

Sent from my iPhone

On Jun 2, 2016, at 9:18 PM, "Christopher Lund" 
> wrote:


I have thought about these issues a little bit over the years, because a 
similar program is in place at Wayne State, where I teach.  (Wayne State is a 
public university.)  The gym here has a "women's only" area, removed from the 
main part of the gym.  Now there are many women's gyms out there, which 
probably reflect how many women (regardless of religion) would rather not work 
out in the company of men.  But I have little doubt that here at Wayne, a big 
part of it is that we have a lot of Muslim women who have deep religious 
concerns about this.  (And you see that last point obliquely referred to in the 
university’s description here, 
https://rfc.wayne.edu/mort-harris/womens-only-area.php.)  Of course, the burden 
on men is much less here at Wayne than in the New York case, because men have 
other machines that they can work out on.  But the burden is not nothing.  
Machines can fill up quickly, because many people try to work out over the 
lunch hour.  I'm sure there are guys out there thinking it would be easier if 
they could just use the machines in the women's area.  But they can’t.

Chip may be right that this is unconstitutional tout court.  This is sex 
discrimination by the state; there’s no disputing that.  I guess that would 
make the “women’s only” area at Wayne unconstitutional.  And that might be the 
right answer.

Even so, I still am interested in the facts here.  How many Orthodox women want 
to use the pool?  And how many hours would it be women-only, and how many hours 
would it be open access?  Are there non-religious people who want womens-only 
or mens-only swim times?  (There might be.)

It’s obviously a huge burden to the men to not be able to use the pool 
(especially, I notice, Saturday afternoon).  But if Orthodox women all feel 
religiously compelled not to swim with men, then a lack of a religious 
accommodation here makes them similarly unable to use the pool.  For the same 
reasons that lack of pool access is a hardship to the men, it's a hardship to 
the women.  Of course, it's true that the women's hardship is, in a sense, 
created by their own religious beliefs.  But that's always the case with 
religious accommodations.  And if we're balancing harms and hardships, I'd note 
an important imbalance here.  Without a religious accommodation, the women 
aren't deprived of the pool for a limited time (as the men would be with a 
religious accommodation); they are deprived of the pool altogether.  I'd want 
to avoid that, if I could.

I still don’t know how to resolve this, but one final thing.  If you look at 
the pool’s schedule, which I think I found here, 
https://www.nycgovparks.org/facilities/recreationcenters/B085/schedule/2016-05-30#Pool,
 you’ll see that there’s virtually no “general swim” times at the pool at 
all—usually only about two hours a day.  Most of the time, the pool seems to be 
reserved for various kinds of things—kids’ swim lessons, water polo, adult lap 
swimming, senior lap swimming.  And if the state is restricting pool access for 
all these other kinds of reasons, the question becomes why it can't do the same 
to accommodate the deeply held views of a minority faith?  I mean, water polo 
is great, but I don't know if it's necessarily more worthy of accommodation 
than Orthodox Judaism.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Ira Lupu >
Sent: Thursday, June 2, 2016 6:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

Not permissible.  An obvious sectarian gerrymander, with unmistakable harm to 
men, who get no comparable single-sex hours in the pool.  And, I suspect, trans 
women are not going to be allowed in the pool during the hours for women only.

A policy that created hours for men (and boys) only, and an equal number of 
hours for women (and girls) only would be easier (though not easy) to defend on 
constitutional grounds, though perhaps even more unpopular for its detrimental 
effects on family swimming.

On Thu, Jun 2, 2016 at 6:18 PM, Marty Lederman 
> wrote:
permissible accommodation?

http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html

Re: thoughts on constitutionality of single-sex hours for public pool?

[Alan E Brownstein]

 Chip is certainly correct that because majority faiths also observe a Sabbath, 
the refusal to accommodate  a different Sabbath for members of minority faiths 
is facially discriminatory. If we limit discretionary accommodations to these 
cases, however, we are basically telling minority faiths that we may 
accommodate your beliefs if they parallel the beliefs of the majority. But if 
you have beliefs relating to diet, or grooming, or dress, etc. as to which 
there is no clear counterpart in majority beliefs, religious accommodations are 
unacceptable because there is nothing to accommodate.
I would certainly agree that there may be strong equality arguments for 
accommodating religion in a given benefits case. But the diversity of faiths 
means that there will often be distinctive beliefs and practices that are 
difficult to subsume under an equality analysis. Accommodations in these cases 
primarily affirm and protect religious liberty interests.
Alan

Sent from my iPhone

On Jun 2, 2016, at 8:49 PM, "Ira Lupu" 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

I strongly suspect Alan's Adventist basketball team example involves 
discrimination, because no games were scheduled on Sunday. The discrimination 
is the burden from which relief is deserved.
Religious diversity in higher education might well be a compelling interest, so 
CUNY might want to accommodate religious minorities re: privacy or modesty 
concerns, though there would remain questions of harm to third parties. 
Religious diversity in public swimming pools does not seem to present an 
interest of any importance whatsoever.

On Thursday, June 2, 2016, Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote:
I think it is both reasonable and valid to accommodate religious groups whose 
members would be unable to enjoy benefits that the majority enjoys  because of 
conflicts with a minority faiths beliefs.
No one has to attend the prom or go on discretionary field trips or play in 
intra mural sports. But these are valued opportunities.I fully appreciate that 
the cost of accommodations may be too high -- as it often will be if it 
requires discrimination against third parties. But that is very different than 
arguing there is no valid interest in providing accommodations in these cases.
Years ago I helped out in a case involving an Adventist high school that was 
barred from playing in a state basketball tournament because they asked for an 
accommodation so they would not have play on the Sabbath.
If their games could be scheduled to avoid playing on the Sabbath at minimal 
cost to others, why shouldn't their religious beliefs be accommodated? The fact 
that there is no requirement to play in state basketball tournaments seems to 
me to be an unpersuasive basis for denying an accommodation in this kind of a 
case.
Alan

Sent from my iPhone

On Jun 2, 2016, at 7:49 PM, "Ira Lupu" 
<icl...@law.gwu.edu<javascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu');>> wrote:

Paul is raising, among other questions, an entirely appropriate baseline 
question -- how do sexually integrated public pools burden anyone's religious 
freedom? No one is coerced to use them. The pools are a constitutionally 
gratuitous benefit, offered on conventional conditions of no sex 
discrimination. If there is no burden on religious freedom, then there is no 
justification for an accommodation.

On Thursday, June 2, 2016, Volokh, Eugene 
<vol...@law.ucla.edu<javascript:_e(%7B%7D,'cvml','vol...@law.ucla.edu');>> 
wrote:
   I think Prof. Finkelman and I might be talking past each other 
here, but I’d love to hear what others think.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrarily closed to only allow one 
sex to use any dressing room.

Eugene, I actually doubt there are any people on this list (or very many on law 
faculties) or in the US who would think that single sex dressing rooms are 
unconstitutional.  So why raise the analogy.

The issue here is whether you deny access because a religious group demand its; 
given the racial arguments of many religious groups (going back to proslavery 
religious thought and going to Bob Jones University and beyond) it is not 
impossible to imagine a single race religious argument.  Some religious groups 
have been making them for 150 years or more. (If you want examples of early 
versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old 
South).  So, it is not impossible or implausible 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Alan E Brownstein]

I think it is both reasonable and valid to accommodate religious groups whose 
members would be unable to enjoy benefits that the majority enjoys  because of 
conflicts with a minority faiths beliefs.
No one has to attend the prom or go on discretionary field trips or play in 
intra mural sports. But these are valued opportunities.I fully appreciate that 
the cost of accommodations may be too high -- as it often will be if it 
requires discrimination against third parties. But that is very different than 
arguing there is no valid interest in providing accommodations in these cases.
Years ago I helped out in a case involving an Adventist high school that was 
barred from playing in a state basketball tournament because they asked for an 
accommodation so they would not have play on the Sabbath.
If their games could be scheduled to avoid playing on the Sabbath at minimal 
cost to others, why shouldn't their religious beliefs be accommodated? The fact 
that there is no requirement to play in state basketball tournaments seems to 
me to be an unpersuasive basis for denying an accommodation in this kind of a 
case.
Alan

Sent from my iPhone

On Jun 2, 2016, at 7:49 PM, "Ira Lupu" 
> wrote:

Paul is raising, among other questions, an entirely appropriate baseline 
question -- how do sexually integrated public pools burden anyone's religious 
freedom? No one is coerced to use them. The pools are a constitutionally 
gratuitous benefit, offered on conventional conditions of no sex 
discrimination. If there is no burden on religious freedom, then there is no 
justification for an accommodation.

On Thursday, June 2, 2016, Volokh, Eugene 
> wrote:
   I think Prof. Finkelman and I might be talking past each other 
here, but I’d love to hear what others think.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu
 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Paul Finkelman
Sent: Thursday, June 02, 2016 5:37 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

single sex dressing rooms do not discriminate against anyone he way the pool 
does. I assume the dressing rooms are not arbitrarily closed to only allow one 
sex to use any dressing room.

Eugene, I actually doubt there are any people on this list (or very many on law 
faculties) or in the US who would think that single sex dressing rooms are 
unconstitutional.  So why raise the analogy.

The issue here is whether you deny access because a religious group demand its; 
given the racial arguments of many religious groups (going back to proslavery 
religious thought and going to Bob Jones University and beyond) it is not 
impossible to imagine a single race religious argument.  Some religious groups 
have been making them for 150 years or more. (If you want examples of early 
versions, see Paul Finkelman, Defending Slavery: Proslavery Thought in the Old 
South).  So, it is not impossible or implausible to make the analogy here.

I don't see what the accommodation is.  IF you have a university of high school 
that requires a swimming test to graduate (I knew someone who almost did not 
graduate from college because she could not pass the swimming test, in 1968), 
then there might be an accommodation issue.  But, short of a requirement that 
people go swimming in the public pool, what is the accommodation here?

Anyone can use the pool any time; anyone can choose not to use the pool any 
time.   No one is required to use the pool ever. What is the accommodation 
issue?


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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From: "Volokh, Eugene" 
>
To: Law & Religion issues for Law Academics 
>
Sent: Thursday, June 2, 2016 7:45 PM
Subject: RE: thoughts on constitutionality of single-sex hours for public pool?

   I’m not at all sure that this form of sex classification is 
constitutional.  But, as is often the case with analogies between single-sex 
and single-race, I don’t think the simple sex/race analogy is helpful here.

  

RE: Mormon Transhumanist Association

[Alan E Brownstein]

There is an article in the April 20th issue of the New Yorker titled "The 
Immortality Upgrade."  It involves a group called the Mormon Transhumanist 
Association "who believe that the development and dissemination of advanced 
technologies-cryogenics, bionics, artificial 
intelligence,
 and so on-will raise humanity to the heights of power and immortality that 
[Joseph]Smith envisioned." Basically the article explains the group seems to 
see parallels between futuristic visions of technological change and some of 
Joseph Smith's prophecies.

Is anyone on the list studying or writing about this group or its belief 
system? Does anyone know anyone who is doing so? (The Law Review at Davis is 
organizing a symposium and this connection between technological change and 
religious belief might be relevant to one of its panels.)

Alan Brownstein
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Re: speech and religion hypothetical

[Alan E Brownstein]

Steve and Eugene are confirming my initial take on this issue. Does the 
analysis change if the lecture is open to  the university community (as are 
most such lectures by invited speakers)? It is an open lecture as opposed to a 
class where only enrolled students are entitled to attend.


As Steve suggests, there would be a different issue if the protestors were 
denied access to a room for their own expressive activities, but that is not 
the case here.


Alan


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Steven Jamar <stevenja...@gmail.com>
Sent: Friday, April 22, 2016 4:47:01 AM
To: Law Religion & Law List
Subject: Re: speech and religion hypothetical

Oh oh.  Eugene and I agree completely on something!  Protesters in a limited 
designated public forum are not engaging in protected activity.  There is no 
constitutional right to disrupt another’s speech in such a setting.

If the school refused to give the protesters a forum at all, that would be 
viewpoint discrimination and would violate the constitution.

Steve

On Apr 22, 2016, at 1:43 AM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   No and no.  A content-neutral restriction forbidding the 
disruption of speakers who have been invited by a group that has booked a room, 
and thus gotten exclusive access to the room for that time, is certainly 
constitutional.  And religious speakers are no more and no less protected here.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Thursday, April 21, 2016 9:41 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: speech and religion hypothetical

I recognize this hypothetical, based very indirectly on a real incident, is 
more speech than religion, but I hope Eugene will allow my post to go forward 
in any case.

Suppose a LGBT student group at a public university invites a guest speaker to 
present a scheduled lecture in a university classroom. The campus 
administration allows student groups to invite speakers and to sign up to use 
campus facilities with few restrictions.  It is a common practice. A group of 
religious students strongly opposed to the speaker's message disrupt the 
speaker's presentation after it has begun. They commandeer the front of the 
room and chant anti-LGBT messages for 3 - 4 minutes. Then they leave. 
(Alternatively, we can reverse the facts and have  the presentation of a 
religious speaker invited by a religious group of students disrupted by gay 
rights proponents to a similar extent.)

I have two questions for list members.

1. Is the conduct of the protestors protected by the Free Speech Clause of the 
First Amendment? Does the First Amendment prevent the university from 
prohibiting this kind of protest through content neutral time, place and manner 
regulations and from punishing the protestors' conduct if the regulations are 
disobeyed? (If you think that this is or is not protected speech, are there 
particular cases you rely on to support this conclusion?)

2. Does the answer to the first question change in any way because religious 
speakers, protestors, and messages are involved in these incidents.

Alan Brownstein




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

Two quotes from Louis Armstrong:
"You blows who you is."
"If ya ain't got it in ya, ya can't blow it out."

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speech and religion hypothetical

[Alan E Brownstein]

I recognize this hypothetical, based very indirectly on a real incident, is 
more speech than religion, but I hope Eugene will allow my post to go forward 
in any case.


Suppose a LGBT student group at a public university invites a guest speaker to 
present a scheduled lecture in a university classroom. The campus 
administration allows student groups to invite speakers and to sign up to use 
campus facilities with few restrictions.  It is a common practice. A group of 
religious students strongly opposed to the speaker's message disrupt the 
speaker's presentation after it has begun. They commandeer the front of the 
room and chant anti-LGBT messages for 3 - 4 minutes. Then they leave. 
(Alternatively, we can reverse the facts and have  the presentation of a 
religious speaker invited by a religious group of students disrupted by gay 
rights proponents to a similar extent.)


I have two questions for list members.


1. Is the conduct of the protestors protected by the Free Speech Clause of the 
First Amendment? Does the First Amendment prevent the university from 
prohibiting this kind of protest through content neutral time, place and manner 
regulations and from punishing the protestors' conduct if the regulations are 
disobeyed? (If you think that this is or is not protected speech, are there 
particular cases you rely on to support this conclusion?)


2. Does the answer to the first question change in any way because religious 
speakers, protestors, and messages are involved in these incidents.


Alan Brownstein




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RE: Arizona, Indiana . . . and now Georgia

[Alan E Brownstein]

My post was descriptive, not normative. In addition to the two cases, Michael 
mentions there have been several state RFRA cases decided since 2000. Several 
of Christopher Lund’s articles describe these cases. I see no pattern that 
provides a narrative to explain those cases. Chris doesn’t either – although I 
think he believes, as I do, that these laws are useful in ad hoc circumstances 
to protect religious liberty.

Perhaps Michael is suggesting that there doesn’t need to be a narrative 
identifying real world problems to justify new RFRA laws. I think the 
narratives I described were very helpful before 2000. Certainly proponents of 
state RFRA bills back then talked about these issues a lot. And legislators at 
least acted as if they wanted to understand the problems that needed to be 
addressed by the proposed law.

Maybe a narrative isn’t necessary today and the utility of state RFRA bills 
should be self-evident. I am struck, however, by the difficulty state 
proponents of these laws seem to experience in explaining why these laws are so 
important if their goal is not to permit discrimination against the LGBT 
community. I have not heard anyone argue that the reason for a state RFRA is 
that the state needs to replicate O Centro and Hobby Lobby at the state level.

I think state RFRA bills are defensible, although I would exclude civil rights 
laws from their coverage and try to deal with possible exemptions from such 
laws through separate legislation. I am far less confident that I can provide a 
justification for my views that would be adopted by legislators or persuasive 
to voters.  To do that – particularly when concerns about LGBT discrimination  
are so obvious and salient – may require a real world narrative.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 1:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Well, we've had two major RFRA cases-- O Centro and Hobby Lobby-- since 2000; 
surely replicating those victories for state claimants does not reflect a focus 
on LGBT issues.  likewise, pre-2000 RFRA cases at the state court level could 
likewise be used, even if it is true that no such cases have emerged post-2000.

I'm not suggesting every state RFRA should be designed to follow how past RFRAs 
have been applied, but such broad and formerly almost universally praised 
legislation should be defensible without discussing a relatively narrow aspect 
of it as the bill's reason for being.

On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote:
Based purely on anecdotal information, I think this issue is based more on 
timing than on legislative history. I worked on the attempt to get a state RFRA 
passed in California in 1998. The bill passed both houses of the legislature -- 
controlled by the Democrats -- only to be vetoed by the Republican governor.

While proponents of the bill made the basic abstract arguments in favor of the 
bill – explaining why free exercise rights should apply against neutral laws of 
general applicability – the two narratives which were most salient and which 
seemed most persuasive involved land use regulation problems and the 
difficulties houses of worship experienced in the zoning process and the 
problems experienced by inmates trying to practice  their faith in prison.

With the passage of RLUIPA in 2000, both of these narratives have been taken 
off the table. As far as I know there is no pattern of state RFRA cases or 
religious liberty disputes supporting an alternative narrative to justify new 
state RFRA laws since 2000 other than those involving discrimination against 
the LGBT community. That is why proponents of new RFRA bills see, e.g. the 
Governor of Indiana, seem so befuddled when they are asked to explain the 
problems the law is supposed to solve – if it isn’t designed to accommodate 
religious objectors to same-sex marriage or other LGBT rights.

Alan Brownstein

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 12:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Question for list members:

What language and/or legislative history would you look for in a bill that has 
in order to consider it having the same intent as the original RFRA, and other 
state RFRAs that were passed absent the LGBT controversy now present?

On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.

RE: Arizona, Indiana . . . and now Georgia

[Alan E Brownstein]

Based purely on anecdotal information, I think this issue is based more on 
timing than on legislative history. I worked on the attempt to get a state RFRA 
passed in California in 1998. The bill passed both houses of the legislature -- 
controlled by the Democrats -- only to be vetoed by the Republican governor.

While proponents of the bill made the basic abstract arguments in favor of the 
bill – explaining why free exercise rights should apply against neutral laws of 
general applicability – the two narratives which were most salient and which 
seemed most persuasive involved land use regulation problems and the 
difficulties houses of worship experienced in the zoning process and the 
problems experienced by inmates trying to practice  their faith in prison.

With the passage of RLUIPA in 2000, both of these narratives have been taken 
off the table. As far as I know there is no pattern of state RFRA cases or 
religious liberty disputes supporting an alternative narrative to justify new 
state RFRA laws since 2000 other than those involving discrimination against 
the LGBT community. That is why proponents of new RFRA bills see, e.g. the 
Governor of Indiana, seem so befuddled when they are asked to explain the 
problems the law is supposed to solve – if it isn’t designed to accommodate 
religious objectors to same-sex marriage or other LGBT rights.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 12:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Question for list members:

What language and/or legislative history would you look for in a bill that has 
in order to consider it having the same intent as the original RFRA, and other 
state RFRAs that were passed absent the LGBT controversy now present?

On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
> wrote:
https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.legis.ga.gov/Legislation/20152016/161054.pdf

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--
Michael Worley
J.D., Brigham Young University
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Re: Zubik / Little Sisters - testing the scope via a hypothetical

[Alan E Brownstein]

I think that attenuation continues to be a useful factor to consider in cases 
where the government burdens the religious claimant by making it more difficult 
to engage in religiously mandated practices. But in cases in which the 
government allegedly compels conduct which the claimant asserts that his 
religion prohibits -- e. g., complicity cases --then I'm not sure how a court 
considers attenuation without evaluating the internal logic of religious 
beliefs.
A bright line test is a different matter.
Alan Brownstein

Sent from my iPhone

On Mar 22, 2016, at 11:25 AM, "Richard Foltin" 
> wrote:

Would another way to put it be that, while the government may never question 
the theological claim that the religious petitioner considers himself/herself 
to be burdened, at some point the connection becomes so attenuated that the 
courts will not, as a legal matter, regard the burden involved as substantial?


Sent from my Verizon Wireless 4G LTE DROID


"Laycock, H Douglas (hdl5c)" > 
wrote:

Cases such as those Chip describes probe far too deeply into what the religious 
claimant believes. And they are not the only ones. Congress tried to address 
such cases in the RLUIPA amendments to RFRA, specifying that a religious 
practice need not be compulsory or central to be protected. The brief that the 
Baptist Joint Committee and I filed emphasizes the error of these cases, the 
danger of overly intrusive inquiries, and the need for substantial deference to 
religious understandings of what is burdensome.

But we say that such deference cannot be absolute, that it never has been 
absolute, and that if it were absolute, absurd results would follow. But 
absolute deference is what both sets of petitioners ask for. They say the 
courts can examine sincerity, and they can examine the magnitude of the penalty 
for non-compliance, but then the substantial burden inquiry is over. Courts 
cannot examine the substantiality of the burden on religion, apart from the 
penalties.

And as Marty suggested in a separate post, our brief explicitly proposes a 
bright-line test: “Religious objectors are not entitled to exemptions for 
secular entities they deal with at arm’s length, or to control the government’s 
regulation of such entities.”

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 Ira Lupu
Sent: Tuesday, March 22, 2016 12:40 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- 
Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones 
(Colorado); Wares v. Simmons (Kansas), 
https://casetext.com/case/wares-v-simmons-2.  Ware involved rabbinical 
testimony that certain books, desired by a prisoner, were non-essential to the 
Jewish faith.
Pre-1997 RFRA cases from prisons were thick with decisions involving the 
question of religious burdensomeness (prison officials do not want to have to 
meet the compelling interest test, even a prison-adjusted one, every time a 
prisoner asserts the religious significance of a forbidden practice.) I cite a 
number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998).
RLUIPA land use cases involve questions of the religious impact of not being 
able to expand a church, add a wing for a church school, or build a parking lot.
And do you deny that Yoder invites inquiry into the religious significance or 
religious impact of a challenged policy?  That is the only "burden" inquiry in 
Yoder.
Please keep in mind that I find all of this deeply troublesome.  But RFRA 
invites it. (Thomas v. Review Board says courts cannot second guess a 
claimant's reading of Scripture. But that does not mean courts cannot question 
the religious significance of the actions forbidden or required.)

On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. 
> wrote:
Ira, I don't understand the distinction I think you are trying to make. We 
agree that sounds like a court must accept the sincere testimony of a Muslim 
prisoner who claims his faith requires him to keep a half inch beard. But you 
believe the court may instead decide that being forced to shave is, contrary to 
the prisoner's testimony, actually not that big of a deal? What cases have been 
decided on this basis?

Eric


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Re: Zubik / Little Sisters - testing the scope via a hypothetical

[Alan E Brownstein]

I think that attenuation continues to be a useful factor to consider in cases 
where the government burdens the religious claimant by making it more difficult 
to engage in religiously mandated practices. But in cases in which the 
government allegedly compels conduct which the claimant asserts that his 
religion prohibits -- e. g., complicity cases --then I'm not sure how a court 
considers attenuation without evaluating the internal logic of religious 
beliefs.
A bright line test is a different matter.
Alan Brownstein

Sent from my iPhone

On Mar 22, 2016, at 11:25 AM, "Richard Foltin" 
> wrote:

Would another way to put it be that, while the government may never question 
the theological claim that the religious petitioner considers himself/herself 
to be burdened, at some point the connection becomes so attenuated that the 
courts will not, as a legal matter, regard the burden involved as substantial?


Sent from my Verizon Wireless 4G LTE DROID


"Laycock, H Douglas (hdl5c)" > 
wrote:

Cases such as those Chip describes probe far too deeply into what the religious 
claimant believes. And they are not the only ones. Congress tried to address 
such cases in the RLUIPA amendments to RFRA, specifying that a religious 
practice need not be compulsory or central to be protected. The brief that the 
Baptist Joint Committee and I filed emphasizes the error of these cases, the 
danger of overly intrusive inquiries, and the need for substantial deference to 
religious understandings of what is burdensome.

But we say that such deference cannot be absolute, that it never has been 
absolute, and that if it were absolute, absurd results would follow. But 
absolute deference is what both sets of petitioners ask for. They say the 
courts can examine sincerity, and they can examine the magnitude of the penalty 
for non-compliance, but then the substantial burden inquiry is over. Courts 
cannot examine the substantiality of the burden on religion, apart from the 
penalties.

And as Marty suggested in a separate post, our brief explicitly proposes a 
bright-line test: “Religious objectors are not entitled to exemptions for 
secular entities they deal with at arm’s length, or to control the government’s 
regulation of such entities.”

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 Ira Lupu
Sent: Tuesday, March 22, 2016 12:40 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- 
Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones 
(Colorado); Wares v. Simmons (Kansas), 
https://casetext.com/case/wares-v-simmons-2.  Ware involved rabbinical 
testimony that certain books, desired by a prisoner, were non-essential to the 
Jewish faith.
Pre-1997 RFRA cases from prisons were thick with decisions involving the 
question of religious burdensomeness (prison officials do not want to have to 
meet the compelling interest test, even a prison-adjusted one, every time a 
prisoner asserts the religious significance of a forbidden practice.) I cite a 
number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998).
RLUIPA land use cases involve questions of the religious impact of not being 
able to expand a church, add a wing for a church school, or build a parking lot.
And do you deny that Yoder invites inquiry into the religious significance or 
religious impact of a challenged policy?  That is the only "burden" inquiry in 
Yoder.
Please keep in mind that I find all of this deeply troublesome.  But RFRA 
invites it. (Thomas v. Review Board says courts cannot second guess a 
claimant's reading of Scripture. But that does not mean courts cannot question 
the religious significance of the actions forbidden or required.)

On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. 
> wrote:
Ira, I don't understand the distinction I think you are trying to make. We 
agree that sounds like a court must accept the sincere testimony of a Muslim 
prisoner who claims his faith requires him to keep a half inch beard. But you 
believe the court may instead decide that being forced to shave is, contrary to 
the prisoner's testimony, actually not that big of a deal? What cases have been 
decided on this basis?

Eric


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Re: Texas Cheerleaders display Bible Verses on banners

[Alan E Brownstein]

Vik Amar and I wrote a lengthy column on this case several years ago:


The Establishment Clause and the Free Speech Clause in the Context of the Texas 
High School Cheerleader Religious Banner Dispute

Nov. 9, 2012 Justia.com Verdict.


Our conclusion was that the cheerleaders should lose under either an 
Establishment clause or a Free Speech analysis.


Alan


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marty Lederman 
Sent: Saturday, January 30, 2016 10:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Texas Cheerleaders display Bible Verses on banners

Herewith, the briefs in the Texas Supreme Court:

Cheerleaders’ 
Brief

School District 
Brief,
 which argues that the case is moot, and then, at the end, that even though the 
speech is that of the school district, it does not violate the EC, citing van 
Orden

Brief for Amici Ted Cruz and John 
Cornyn,
 arguing that it’s not an EC violation because it’s private speech

Brief for Amicus the State of 
Texas,
 also arguing that it’s private speech

Brief for Amicus the American Jewish 
Committee,
 arguing that the case is moot but that, on the merits, the trial court reached 
the wrong result on the Establishment Clause issue, “in the absence of genuine 
adversary argument”

Brief for Amici ACLU and Americans 
United,
 arguing that it’s an EC violation

Reply Brief for the 
Cheerleaders

On Sat, Jan 30, 2016 at 1:24 PM, Marty Lederman 
> wrote:
Here's what's happened in this very confusing case.  Warning:  It's not very 
comprehensible.  But what is clear is that no court has (thus far) actually 
adjudicated any substantive dispute, on the merits, about any state or federal 
constitutional question:

1.  The cheerleaders of the Kountze Independent School District (KISD)
have traditionally constructed and displayed "run-through" banners that KISD 
players tear through as they storm the field before every game.  For years, the 
cheerleaders have placed inspirational religious messages on the banners, often 
based on Bible verses, e.g.:

“A lion, which is strongest among beasts and turns not away from any.”
“I can do all things through Christ who strengthens me.”
“If God is for us, who can be against us?”
“But thanks be to God which gives us victory through our Lord Jesus Christ.”

2.  Freedom from Religion Foundation sent a letter to KISD, arguing that the 
practice violates the EC.  The District, apparently without conceding the FRF 
constitutional claim prohibited the signs, at least for the purpose of heading 
off an FRF lawsuit.

3.  The cheerleaders then sued the District, under the State Constitution free 
speech and free exercise clauses, and obtained a P.I.

4.  The District then determined that the EC does not bar the practice, and 
rescinded its prohibition on the display of religious messages, while 
continuing to assert that it has an "unfettered" authority to prohibit the 
content of such signs.

5. At this point, on summary judgment, the trial court issued a "declaratory" 
judgment, agreed to by both the District and the cheerleaders, that in relevant 
part states “[n]either the Establishment Clause nor any other law prohibits the 
cheerleaders from using religious-themed banners at school sporting events.”  
(Again:  Neither party argued that the EC does bar such banners.)

6.  After the judgment was issued, the cheerleaders claimed that the order 
effectively confirmed their state constitutional right to speak -- that it is 
private speech -- but District officials insisted that it only resolved the EC 
question, and that the court had not precluded the district from theoretically 
limiting the content of the banners, because it is government-controlled 
speech.  Because of this dispute, the cheerleaders apparently took an 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

Hi Rick,


Viewing the question of religious exemptions and church autonomy on the one 
hand and equal access to government subsidies on the other from a broad 
perspective, I "hear" this discord all the time. I spend a lot of time speaking 
to various civic groups, church groups and the like -- very often advocating 
for religious liberty interests to liberal audiences. I don't claim to having 
ever convinced anyone of anything. But I do think that describing religious 
liberty exemptions as part of church-state package that includes limits on 
government funding of religious institutions makes people stop and think -- and 
perhaps reconsider -- their view that religious organization should not receive 
regulatory exemptions and must follow the same rules everyone else has to obey. 
Conversely, the argument that religious institutions are indistinguishable from 
secular institutions with regard to their eligibility for subsidies undercuts 
the legitimacy of claims for regulatory exemptions. I think this asymmetry is 
perceived to be gaming the system and a power grab. I suspect, although I 
certainly cannot prove my conjecture, that the movement toward equal access to 
government support has helped to undercut support for discretionary religious 
exemptions.


Alan



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Rick Garnett 
Sent: Monday, January 18, 2016 6:36 AM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

Dear Marty,

I agree, certainly, that "thoughtful justification" is always important and 
welcome.  For what it's worth, though, I think it overstates the matter a bit 
to characterize the religious-institutionalism arguments as pressing a blanket 
right to "opt out of the welfare state" or even to avoid, as a general matter, 
"sharing in its burdens."  (I try to respond to a powerful form of this "opt 
out" argument, advanced by Robin West, here:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).

[http://static.ssrn.com/Images/Header/logo_social.jpg]

'The Freedom of the Church': (Towards) an Exposition 
...
papers.ssrn.com
This Article was presented at a conference, and is part of a symposium, on the 
topic of "Freedom of the Church in the Modern Era." In addition to summarizing 
and re ...



It is true, for sure, that many of these arguments invoke spheres, 
jurisdiction, sovereignty, autonomy, etc., in an effort explain why the 
entirely appropriate regulatory power of the welfare state does not or should 
not extend to certain matters.  But I don't see (or hear?) discord between, 
say, arguing for equal treatment / nondiscrimination in Trinity Lutheran and 
for church-autonomy in, say, Hosanna-Tabor.

Best wishes,

Rick



On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman 
> wrote:
Mark, this is certainly true, and important:

"The Remonstrance was written at a time when states did not provide extensive 
benefits to most people or at least was not omnipresence in all aspects of 
their lives.  Not a penny shall go to a church is a lot harder to figure out 
when lots of government pennies go to lots of different things."

And that's why almost everyone -- including on this list -- would not have much 
trouble with religious organizations receiving entitlements that are available 
to everyone, with police and fire protection being the canonical example.  The 
difficulties, however, are (at least) twofold:

1.  Virtually all of these cases, including Trinity Lutheran, involve not 
entitlements, but instead scarce (often competitive) resources, such as 
selective grants.  In most such cases (but apparently not LT), government 
decision-makers must make subjective judgments about which recipients are most 
worthy, which obviously raises constitutional concerns when churches are in the 
mix.  And even where the criteria are wholly neutral and nondiscretionary, I 
think there's an uneasiness about the state conferring highly desirable, very 
selective benefits on religious institutions while others do without.  In part 
because of . . .

2.  Alan's point, which is that such institutions simultaneously insist--often 
for very compelling reasons--that they should not be made to share in the 
burdens of the welfare state, even when it comes to obligations in the 
commercial sphere, involving virtually universal obligations (see Zubik).  
Moreover, we're witnessing a flourishing of scholarship defending the notion of 
"separate" spheres and institutional autonomy--the right to opt out of the 
welfare state, as it were--but many of those same voices insist that the 
"autonomous" institutions are entitled to equal treatment on the benefits side, 
even 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

Since Doug isn't going to respond and most members of the list have written 
about these issues at some length, let me make two very brief points here.


The focus of the discussion is the government funding of religious 
institutions. Doug is correct that if funds are made available to institutions 
that provide services in a secular environment but not to institutions that 
provide services in a religious environment, the availability of that money 
will encourage institutions to make themselves less religious or suffer 
discrimination. If those same funds are provided to a religious institutions 
which retain the authority to 1. discriminate on the basis of religion in 
hiring staff to provide the government funded services; 2. to exercise 
discretionary authority as to who will receive the government funded services 
or the kind and magnitude of the benefits to be received; 3. to proselytize 
clients or require participation in religious exercise by beneficiaries etc. -- 
I think that will create the same kind of pressure for people to make 
themselves more religious or suffer discrimination. In one case government 
money is used by the state in a way that influences religious choice. In the 
other case the same government money is used by a religious institution to 
influence religious choice.


My second point is that Doug's analysis focuses on one variable: is the 
government's action with regard to subsidies or regulatory exemptions likely to 
tempt people to become more or less religious -- to adopt or forego religious 
practices. I do not dispute that this is an important consideration, but there 
are other variables and values in play here. To take one example, and it is 
only one, there is something of a speech value in play. Freeing institutions 
from regulations empowers them, facilitates their ability to further their 
goals, reinforces their control over their members, and reinforces their 
emphasis on their stated mission. In a competitive market place of ideas, 
freeing certain institutions from regulations has a distorting effect that 
favors the exempted institutions. One may reasonably argue that this distortion 
is outweighed by limits on the funding of religious institutions. But the 
distortion exists and should be constitutionally significant (that is, it 
cannot be ignored, but may not be dispositive standing alone in resolving 
doctrinal disputes). Would anyone argue that a regime that only exempted 
secular organizations from regulations that interfered with their belief based 
institutional autonomy interests had no constitutional significance because of 
its de minimis consequences?


Alan



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Laycock, H Douglas (hdl5c) 
Sent: Monday, January 18, 2016 7:50 AM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits


I am juggling multiple deadlines and will not be responding to responses to 
this post or participating in a continuing debate. But the principle of neutral 
government incentives can largely reconcile recognizing the church’s right to  
funds in cases like Trinity Lutheran with its right to regulatory exemptions 
for religious practice.



First, the issue in the founders’ time was whether government could or should 
provide special funding – funding not available to secular activities – for the 
religious activities of churches. The answer was no, and that remains settled. 
None of the current disputes involve that question.



The modern question is whether government can provide neutral funding on 
nondiscriminatory criteria for secular services – education in secular 
subjects, health care, social services of various kinds – delivered in a 
religious environment by a religious institution. Money has the same value to 
everyone, so the only way to maintain religiously neutral incentives, with 
government neither encouraging nor discouraging individuals or organizations to 
become more or less religious, is to fund everybody or nobody – or to choose on 
objective and religiously neutral criteria. I agree with Marty that subjective 
criteria open the door to discrimination.



If government says it will fund secular services in a religious environment but 
not a secular environment, or vice versa, it powerfully encourages providers to 
qualify for the funding by making themselves more or less religious as 
government demands. Organizations that are fully committed one way or the other 
cannot switch and will suffer the resulting discrimination. But organizations 
near the line can make themselves more or less religious in order to qualify, 
and we see examples of this in the reported cases.



The same analysis applies to tax exemption for religious and secular 
non-profits.



The same analysis applies to regulatory exemptions when religious practice 
aligns 

Re: The Establishment Clause question in the Trinity Lutheran case

[Alan E Brownstein]

I'm not about to suggest that Eugene's equal access arguments don't make sense. 
But I don't think his examples provide persuasive  support for an equal access 
rule either.


Example 1 is a designated public forum. As such, it is subject to equal access 
rules. But it is certainly not clear to me either for free speech purposes or 
religion clause purposes that the doctrinal rules applying to public forums 
apply to all government spending programs. I don't think there is any consensus 
as to how spending decisions that distinguish between religion and 
non-religious grantees or that draw a variety of other distinctions that might 
be characterized as content or viewpoint based should be reviewed. Rosenberger 
is a forum case and the extent to which it extends beyond a designated public 
forum remains unclear. Certainly there is abundant argument from both 
conservative and liberal jurists that challenge its extension to other spending 
settings.


Example 2 has more bite to it. But again, I think the question remains whether 
the generally accepted rule for tax-deductible contributions is to be extended 
to other subsidy programs such as those involving cash grants or anywhere else. 
If we consider the range of regulations and subsidies that might apply to the 
building of auditoriums by nonprofits, it seems clear that our constitutional 
traditions suggest a significant reluctance to allow government to directly 
subsidize churches (which are in effect auditoriums for religious assembly, 
expression and association) and a corresponding willingness to exempt churches 
from regulations applicable to secular institutions (certainly RLUIPA, for 
example,  involves regulatory discrimination in favor of churches). These 
traditions, I suggest, reflect some of the competing values represented by the 
two religion clauses. The problem, of course, is that these values can be 
extremely difficult to reconcile. It seems to me that the inclusion of houses 
of worship in the class of nonprofits that benefit from tax deductible 
donations is best understood as one of the arbitrary lines that we have drawn 
to accommodate both free exercise and establishment clause concerns. It is a 
policy compromise that is formally inconsistent with a ban that singles out and 
denies religious subsidies per se and also inconsistent with a generally 
permissive regime that allows for singling and accepting exemptions for 
religious institutions and activities from generally applicable laws. We can 
argue whether it is a good compromise or a bad compromise. But I don't think it 
supports extending an equality regime more generally to subsidies or religious 
exemptions for religious institutions.


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Sunday, January 17, 2016 1:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: The Establishment Clause question in the Trinity Lutheran case


   I share Sandy’s skepticism about the “play in the joints” 
locution, but I wonder why equal treatment doesn’t make sense as a maximalist 
theory?



Consider Sandy’s auditoria hypothetical.  It’s hard to infer 
much based on it, I think, because it’s hard to imagine the government actually 
building auditoria for private organizations.  But let’s consider two more 
plausible versions:



1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
Rector.



2.   The government offers property tax exemptions for a wide range of 
nonprofits, and makes contributions to such nonprofits tax-deductible.  Thus, 
if a nonprofit is building an auditorium, it in effect gets a massive 
matching-grant subsidy from the government.  There’s nothing nonsensical, it 
seems to me, about churches being entitled to use this subsidy for building 
their churches.  Indeed, they get such a subsidy now, and it’s seen as 
constitutional.  See Walz.  And I think that, if some government decided to 
exclude churches from such subsidies (while making them available to a vast 
range of comparable nonprofits), that would indeed violate the Free Exercise 
Clause.



Now one can argue that, as a matter of history, police, or what have you, the 
Free Exercise Clause should not be read as mandating equal treatment for 
religious observers in general, as to funding, as to some kinds of funding, or 
what have you.  But I just don’t see why the equal access rule wouldn’t “make[] 
sense.”



Eugene




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Please 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark"  
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene" >
> To: Law & Religion issues for Law Academics 
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
> 
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes – indeed, I’d think that’s 
> quite common – but a church or a school definitely would use the safer 
> buildings for religious purposes.  Chip, under your proposal, wouldn’t a 
> state therefore be equally free to say that “play in the joints” lets it deny 
> all those safety grants (otherwise generally available to all other 
> institutions) to religious 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I appreciate Micah's clarifying the thrust of my point.


It may be that the idea of play in the joints is better understood and 
conceptualized when one considers the way the state approaches its relationship 
with religious institutions from a broad perspective. Thus, the special 
treatment a state provides religious institutions by protecting them against 
government regulations far more than the Constitution requires is relevant to 
the question of whether the state also may limit subsidies to religious 
institutions more than the Constitution requires. While individual laws and 
subsidy decisions  are evaluated separately that evaluation may properly 
reflect the broader framework of church-state relations adopted by the state on 
which the law or subsidy decision is based.


As to Chips suggestion that the accommodations I describe would violate the 
Establishment Clause, his point is well taken in that in my haste I failed to 
include a requirement that the accommodations in question apply to regulations 
that substantially burden the religious exercise of religious institutions.


Let me add that important foundation to the accommodations I packaged together 
earlier.


Here, a law protecting religious land uses from general land use regulations 
that substantially burden the religious exercise of religious institutions 
paraphrases RLUIPA and provides religious institutions significant protection 
against land use regulations which is unavailable to secular institutions.


A law protecting religious institutions against any government regulation that 
substantially burdens its religious exercise unless the regulation is 
determined to be the least restrictive means of furthering a compelling state 
interest paraphrases RFRA. Again, this protection is unavailable to secular 
institutions.


Religious institutions are already protected from several generally applicable 
anti-discrimination laws. Some of this protection is constitutionally required 
as in Hosanna Tabor. It is not clear to me that a state statute defining a 
ministerial exception beyond what the Constitution has been held to require is 
a per se violation of the Establishment Clause -- although I very much 
appreciate the argument that at some point such a law would be an Establishment 
Clause violation. And, of course, Title VII exempts religious organizations to 
some extent from the prohibition against discrimination in hiring on the basis 
of religion. Further, I recognize that the ongoing debate about exempting 
religious organizations from laws protecting members of the LGBT community and 
same-sex couples against discrimination implicates Establishment Clause 
concerns. But it is not clear to me that any and all such exemptions violate 
the Establishment Clause. Accordingly, I think it is plausible to include in my 
package laws that immunize religious institutions from many (but certainly not 
all) generally applicable anti-discrimination laws.


But again, my primary point does not relate to any one of these particular 
accommodations. It is that the fact that a state provides a substantial number 
of religious accommodations to religious institutions -- which non-religious 
persons and institutions often consider to be unjustified privileges -- may be 
relevant to the way we evaluate the play in the joints when the same state 
limits subsidies available to religious institutions.


Alan




From: Alan E Brownstein
Sent: Saturday, January 16, 2016 6:55 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits



>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.ed

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 
Sent: Saturday, January 16, 2016 12:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state constitutional problem.  There's 
the play in the joints.  This is not how Missouri argued this case below, but 
it is how it should argue in the Supreme Court.

2.  Alan's massive package of church-state separation policies -- each one has 
to be evaluated retail.  And, for starters, the regulatory immunities he 
suggests -- e.g., Need not comply with 1) many land use regulations that 
secular institutions must obey;  2) any government regulation unless the 
regulation was determined to be the least restrictive means of furthering a 
compelling state interest; and 3) many generally applicable anti-discrimination 
laws -- cannot possibly be justified under the Establishment Clause.  They all 
prefer religious entities over analogous secular entities (e.g., a secular 
pre-school or day care center) without any demonstration that the immunity is 
necessary to, or even related to, freeing the religious entity from 
restrictions on its ability to carry out its religious mission.

Bottom line -- direct financial aid has to be disconnected from religious 
mission.  Accommodations have to remove distinctively religious burdens, and 
therefore permit the  private accomplishment of religious mission (not just 
make it cheaper to carry out; if that is all that is happening, that would be 
impermissible aid), as well as not inflict significant harm on third parties, 
which some of Alan's proposed immunities would do.  These are all Establishment 
Clause principles reflected in the current law, are they not?

On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
> wrote:
   Two quick question for list members about Trinity 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I wonder if I might offer a modest (well maybe not so modest) amendment to 
Eugene's excellent hypotheticals.


Say that the government adopted a package bill. It provided that:


A. Houses of worship and directly affiliated schools and day care centers:


Need not comply with many land use regulations that secular institutions must 
obey.


Need not comply with any government regulation unless the regulation was 
determined to be the least restrictive means of furthering a compelling state 
interest


Need not comply with many generally applicable anti-discrimination laws (the 
extent of this immunity would be spelled out in the regulatory package)


Were protected against tort liability relating to professional negligence and 
emotional distress causes of action


Would receive favorable tax treatment with regard to the housing of clergy


B. Further, Houses of worship and directly affiliated schools and day care 
centers would not be eligible for cash grants offered generally to private 
institutions (even grants providing reimbursements for expenses). However, they 
would be entitled to receive government services generally provided to private 
institutions by public employees including guards to protect against gang 
violence and the spraying of grounds to eradicate mosquitos carrying dangerous 
virus.


A preamble to the package would explain that the legislature was trying to 
further some of the goals of the separation of church and state by limiting 
both governmental interference with religious institutions and government 
subsidizing of religious institutions.


Would this legislation be constitutional?


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Saturday, January 16, 2016 9:02 AM
To: Law & Religion issues for Law Academics
Subject: Excluding religious institutions from public safety benefits


   Two quick question for list members about Trinity Lutheran, if I 
might.  Say that the government offered grants to schools and day care centers, 
on a largely nondiscretionary basis, for the following:



   1.  Removing potentially cancer-causing asbestos.



   2.  Retrofitting for earthquake safety.



   3.  Hiring security guards to prevent gang violence (and 
intercede in mass shootings and the like).



   4.  Eradicating mosquitos on the property that carry some 
dangerous virus (e.g., West Nile Virus).



(Assume all the grants came with the usual penalties for misuse of state funds, 
including criminal penalties for willful misuse.)  But say that the government 
expressly stated that religious institutions - and thus the children who go to 
those institutions - can't benefit from such grants.



   If you think that the exclusion in Trinity Lutheran is 
constitutional, do you think all these exclusions would be, too?



   If you think that the exclusion in Trinity Lutheran is actually 
mandated by the First Amendment, do you think all these exclusions would be, 
too?



   Eugene
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Re: reserved seat for member of religious organization on police comission

[Alan E Brownstein]

Thanks, Howard. Arguably, context might be relevant in some circumstances. If a 
commission's responsibilities directly related to the treatment of religious 
organizations, that might justify the reservation of a seat for a member of a 
religious organization. If most of the buildings designated as historic 
landmarks by an historic landmark commission were houses of worship, for 
example, arguably that might justify reserving a seat on the commission for the 
member of a house of worship. But there might be more neutral ways to serve 
that goal -- such as reserving a seat for an owner of one of the kinds of 
property that are most often designated as landmarks.


I'm not sure of the purpose for reserving one seat on a police commission for a 
member of a religious group, but I doubt very much that it has anything to do 
with concerns about police relations with a particular faith. Indeed, the 
reservation only reserves the seat for a member of a religious organization. 
The city has the discretion to choose which religious organization's nominee is 
selected. That's one of the problems I see with the appointment reservation 
procedure.


I think there may be a distinction between purely advisory commissions and 
those that exercise government power and between commissions that provide no 
compensation to their members and those that do. I'm less sure that the number 
of commissioners is relevant. Would there be a different constitutional 
analysis if two seats were reserved for members of religious organizations out 
of ten rather than one seat? (Although, of course, if all the seats were 
reserved for members of a religious organization, it would be an easy case.) 
I'm also not sure why the procedure for selecting other commissioners would be 
relevant?


Alan



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Friedman, Howard M. <howard.fried...@utoledo.edu>
Sent: Saturday, November 14, 2015 4:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: reserved seat for member of religious organization on police 
comission

It seems to me that much depends on context.  Where a community policing 
strategy makes it important for the police department to have ongoing 
relationships with particular religious groups (e.g. to overcome resistance to 
reporting co-religionists' actions to authorities), then I do not think there 
is a serious constitutional problem.  A reasonable person would not see this as 
an endorsement of the religious group's beliefs.  On the other hand, where the 
reservation of a seat is intended to assure that the dominant religious group 
in the community will be able to perpetuate its influence, that seems to me to 
be a different story.  Also, what authority does the police commission have in 
this community?  How many members does it have? How are the others chosen, and 
why?  These all seem relevant. This triggers in my head the famous lines from 
Robert Cover's Nomos and Narrative-- "There is a difference between sleeping 
late on Sunday and refusing the sacraments, between having a snack and 
desecrating the fast of Yom Kippur, between banking a check and refusing to pay 
your income tax."

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Alan E Brownstein [aebrownst...@ucdavis.edu]
Sent: Saturday, November 14, 2015 4:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: reserved seat for member of religious organization on police 
comission



Anyone have any thoughts on the constitutionality of a rule that reserves one 
seat on a multi-member police commission for a member of a local religious 
organization (any religious organization would be acceptable) who is nominated 
by the organization. Some compensation is involved.

Alan
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Re: reserved seat for member of religious organization on police comission

[Alan E Brownstein]

Anyone have any thoughts on the constitutionality of a rule that reserves one 
seat on a multi-member police commission for a member of a local religious 
organization (any religious organization would be acceptable) who is nominated 
by the organization. Some compensation is involved.

Alan
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RE: Muslim-focused "reflection room" in airport

[Alan E Brownstein]

I agree with Chip that an accommodation analysis may permit the creation of 
these facilities, but the analysis changes if we are evaluating a general 
funding program where no substantial burden on religious liberty requires 
accommodation.

One important difference is that the accommodation can be tailored to religious 
needs. The courts have upheld accommodations for religious individuals, 
institutions, and practices that are not available for secular individuals, 
institutions, and practices. A funding program operating outside of the 
accommodation context must be neutral and cannot discriminate in favor of 
religion. I do not consider the government funding of a chapel for prayer, even 
a non-denominational chapel,  to be a neutral expenditure allocated on the 
basis of neutral criteria. If funding for secular contemplation rooms were also 
available (or if the uses of the rooms were sufficiently generic), one might 
avoid the neutrality issue. But we would still be left with cases like Tilton 
and the remaining Establishment Clause principle that government funds cannot 
be used for religious instruction, proselytizing or worship – even if the funds 
are allocated according to ostensibly neutral criteria.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 28, 2015 10:21 AM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

Is this any different than creating chapels or worship/reflection spaces on a 
state university campus, in a county hospital, or on a military base?  What 
holds these examples (including the airport) together is the desire to 
accommodate the worship needs of patrons/participants who have no ready 
alternative available (they are far from home, perhaps trapped physically for a 
long time, and perhaps under unusual stress).  So government may make these 
spaces available, but may not encourage or promote their use.  Eugene's airport 
example may just reflect the likely "gerrymandering" of traditional chapel 
space in the design associated with Christian worship.

We would think very differently about all this if the government set up a 
program for helping nonprofits more generally (like schools or social service 
providers) construct new space, and permitted the construction of worship 
spaces within such a program. That would go to the core of the Establishment 
Clause prohibition on government financial support for salary of clergy or the 
building of churches. What Nyquist and Tilton said about that seems to me quite 
good law still, and it has nothing to do with denominational neutrality.

On Wed, Oct 28, 2015 at 11:18 AM, Volokh, Eugene 
> wrote:
   A blog reader asked me about this, and I thought I’d pose the 
question to the list.  Orlando Airport is apparently spending $250,000 to build 
a “reflection room” where Muslim travelers can more conveniently pray, 
especially given the expansion of the airline Emirates at the airport.  See 
http://www.orlandosentinel.com/business/os-orlando-international-airport-reflection-room-20150808-story.html
 .  The reflection room is in addition to “the small, nondenominational chapel 
tucked away on Airside B, just past the security checkpoint,” where Muslim 
travelers sometimes now go (and where there are some prayer rugs available for 
them).  The reflection room would be open to all religious groups, as I 
understand it, but will be primarily designed with Muslim travelers in mind.

   Now I don’t think this should be a problematic accommodation, 
any more than serving kosher meals (or halal meals) in those government 
cafeterias in which there is sufficient demand.  But I wonder whether there 
might nonetheless be a First Amendment problem under the 1970s cases barring 
the use of government funds for physical places where religious services will 
be held.  (I realize the issue arises as to “reflection rooms” more broadly as 
well.)  What do people on the list think about it?  Thanks,

   Eugene

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--
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:

RE: Muslim-focused "reflection room" in airport

[Alan E Brownstein]

I would hope that no court would hold that allocating access to public property 
or allocating public funds on the basis of majority approval or votes would 
constitute neutral criteria for constitutional purposes. A regulation allowing 
the community to vote on which speakers would be allowed to hold a rally in a 
public park (the top five get a permit) would not be a content neutral speech 
regulation. I do not think the problem in Rosenberger would be avoided if the 
University of Virginia allowed students to vote to determine which students 
periodicals would receive support from the University and no religious 
periodicals received sufficient votes to receive funds. If funds are to be 
allocated according to neutral criteria between religious and non-religious 
uses, asking the majority how it would allocate funds should not satisfy that 
standard.

If the room is designated for expressive purposes without any special regard 
for religious uses, then majority ranking might be acceptable. I know no 
constitutional constraint preventing majorities from favoring expressive uses 
over fast food restaurants.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Justin Butterfield
Sent: Wednesday, October 28, 2015 2:35 PM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

The former, but not that rooms are provided for a wide range of expressive 
groups so much as that the use of the funds is grounded in neutral criteria 
(the Sixth Circuit goes on to explain that they upheld Detroit's downtown 
refurbishment program, which provided funds to refurbish churches, because the 
funds were given out according to facially neutral criteria and there was no 
evidence that the facially neutral criteria were chosen to "stack the deck in 
favor of groups that engage in religious indoctrination." Am. Atheists, 567 
F.3d at 291, 302. For example (and assuming that the airport's funds are 
governmental funds), suppose that the airport polled frequent fliers in a 
terminal as to what accommodations the terminal was lacking and promised to 
provide $250,000 each to build the top 5 most-requested accommodations. The 
results are two fast-food restaurants, the reflection room, a gym, and a luxury 
seating area, each of which is provided $250,000. This dispersement would be 
based on neutral criteria, even though there is only one "expressive group."

Justin

---
Justin Butterfield
Senior Counsel
Liberty Institute
Tel.: (972) 941-4451
Fax.: (972) 941-4457
jbutterfi...@libertyinstitute.org<mailto:jbutterfi...@libertyinstitute.org>
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From: Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Wednesday, October 28, 2015 3:39 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Muslim-focused "reflection room" in airport

I'm not sure how all of these free speech cases the Sixth Circuit cites apply 
to the government funding of a chapel. Is the argument that the creation of 
rooms in an airport terminal for expressive purposes is determined under 
open-access neutral criteria and that like the public property at issue in 
Widmar etc. and the funds distributed in Rosenberger, a wide range of 
expressive groups are provided rooms for their particular messages and 
assemblies? Or is the argument that the rooms created by the airport are open 
access lounges for expressive purposes with no particular connection to 
religion use or connotation that they are reserved for religious use.

Alan

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Justin Butterfield
Sent: Wednesday, October 28, 2015 10:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

I agree that there's a possible accommodation appro

RE: Muslim-focused "reflection room" in airport

[Alan E Brownstein]

Ed knows much more about the ownership and management of airports than I do – 
although it’s not hard to satisfy that standard. But I recall several cases 
where airport governing authorities were sued for violating the free speech 
rights of people using the airport terminals for expressive purposes. Is the 
entity that adopts airport terminal regulations different than the one that 
determines whether chapels should be located in the terminal or perhaps some 
airports are more clearly government owned and managed than others. I’m just 
curious. If there is no state action here, would it be constitutional for an 
airport to have a denominational chapel that conduct services for only one 
faith?

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Darrell
Sent: Wednesday, October 28, 2015 11:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

Again I note, airport terminals are not buildings that state pays for nor pays 
to maintain (though title often falls to a governmental entity if the facility 
is abandoned).  I just don't think our usual "what can government do" analysis 
applies, any more than it would apply to the religious verse citations listed 
on the soft-drink cups at In-n-Out Burgers.

Ed Darrell
Dallas


From: Justin Butterfield 
>
To: Law & Religion issues for Law Academics 
>
Sent: Wednesday, October 28, 2015 12:58 PM
Subject: Re: Muslim-focused "reflection room" in airport

I agree that there's a possible accommodation approach that would allow the 
reflection room as well.

Setting aside accommodation, the Sixth Circuit rests pretty strongly on 
neutrality as the guiding principle in holding that government funds may be 
used to refurbish churches, which seems more like your hypothetical . Am. 
Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278 (6th Cir. 
2009). In that opinion, the Sixth Circuit said, "Since Tilton, the Court 
repeatedly has held that the Establishment Clause does not require the 
government to exclude religious groups from participating in open-access 
programs that make state-owned buildings available to all comers, even if such 
groups use the property for 'religious worship and religious discussion.' 
Widmar, 454 U.S. At 265, 270–75; see Good News Club, 533 U.S. At 113–14, 119; 
Lamb's Chapel, 508 U.S. At 394–95; see also Rosenberger, 515 U.S. at 839–46. 
What mattered in those cases was not that religious activity took place in 
facilities that the State had built and paid to maintain, but that the 
government provided access to those facilities on equal terms to all, ensuring 
that whatever use the groups made of them could not be chalked up to the 
State." Am. Atheists, 567 F.3d at 299.

Justin

---
Justin Butterfield
Senior Counsel
Liberty Institute
Tel.: (972) 941-4451
Fax.: (972) 941-4457
jbutterfi...@libertyinstitute.org
www.libertyinstitute.org

CONFIDENTIALITY NOTICE
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was sent. If you are not the intended recipient, any disclosure, copying, 
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From: Ira Lupu >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Wednesday, October 28, 2015 12:20 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Muslim-focused "reflection room" in airport

Is this any different than creating chapels or worship/reflection spaces on a 
state university campus, in a county hospital, or on a military base?  What 
holds these examples (including the airport) together is the desire to 
accommodate the worship needs of patrons/participants who have no ready 
alternative available (they are far from home, perhaps trapped physically for a 
long time, and perhaps under unusual stress).  So government may make these 
spaces available, but may not encourage or promote their use.  Eugene's airport 
example may just reflect the likely "gerrymandering" of traditional chapel 
space in the design associated with Christian worship.

We would think 

RE: Muslim-focused "reflection room" in airport

[Alan E Brownstein]

I'm not sure how all of these free speech cases the Sixth Circuit cites apply 
to the government funding of a chapel. Is the argument that the creation of 
rooms in an airport terminal for expressive purposes is determined under 
open-access neutral criteria and that like the public property at issue in 
Widmar etc. and the funds distributed in Rosenberger, a wide range of 
expressive groups are provided rooms for their particular messages and 
assemblies? Or is the argument that the rooms created by the airport are open 
access lounges for expressive purposes with no particular connection to 
religion use or connotation that they are reserved for religious use.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Justin Butterfield
Sent: Wednesday, October 28, 2015 10:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

I agree that there's a possible accommodation approach that would allow the 
reflection room as well.

Setting aside accommodation, the Sixth Circuit rests pretty strongly on 
neutrality as the guiding principle in holding that government funds may be 
used to refurbish churches, which seems more like your hypothetical . Am. 
Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278 (6th Cir. 
2009). In that opinion, the Sixth Circuit said, "Since Tilton, the Court 
repeatedly has held that the Establishment Clause does not require the 
government to exclude religious groups from participating in open-access 
programs that make state-owned buildings available to all comers, even if such 
groups use the property for 'religious worship and religious discussion.' 
Widmar, 454 U.S. At 265, 270-75; see Good News Club, 533 U.S. At 113-14, 119; 
Lamb's Chapel, 508 U.S. At 394-95; see also Rosenberger, 515 U.S. at 839-46. 
What mattered in those cases was not that religious activity took place in 
facilities that the State had built and paid to maintain, but that the 
government provided access to those facilities on equal terms to all, ensuring 
that whatever use the groups made of them could not be chalked up to the 
State." Am. Atheists, 567 F.3d at 299.

Justin

---
Justin Butterfield
Senior Counsel
Liberty Institute
Tel.: (972) 941-4451
Fax.: (972) 941-4457
jbutterfi...@libertyinstitute.org
www.libertyinstitute.org

CONFIDENTIALITY NOTICE
This electronic mail message and any accompanying documents contain information 
belonging to the sender that is confidential and legally privileged. This 
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distribution, or action taken in reliance on the contents of the information 
contained in this electronic mail message is strictly prohibited. If you have 
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Re: "Call for Constitutional Resistance"

[Alan E Brownstein]

Just wondering -- is anyone circulating a call for scholars to support the 
fundamental right of same-sex couples to marry as affirmed by the Court in 
Obergefell and the principles of personal liberty and autonomy and human 
dignity  on which the decision is based?



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marty Lederman 
Sent: Friday, October 9, 2015 12:29 PM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics
Subject: "Call for Constitutional Resistance"

FYI:

https://americanprinciplesproject.org/founding-principles/statement-calling-for-constitutional-resistance-to-obergefell-v-hodges%E2%80%AF/

[https://americanprinciplesproject.org/wp-content/uploads/4249886990_59702a0b25_o.jpg]

Statement Calling for Constitutional Resistance to Obergefell v. Hodges? | 
American Principles Project
We are scholars and informed citizens deeply concerned by the edict of the 
Supreme Court of the United States in Obergefell v. Hodges wherein the Court 
decreed, by the narrowest of margins, that every state in the country must 
redefine marriage to include same-sex relationships.??  The Court's majority 
opinion eschewed reliance on the text, logic, ...
Read 
more...




We call on all federal and state officeholders:

To refuse to accept Obergefell as binding precedent for all but the specific 
plaintiffs in that case.

To recognize the authority of states to define marriage, and the right of 
federal and state officeholders to act in accordance with those definitions.

To pledge full and mutual legal and political assistance to anyone who refuses 
to follow Obergefell for constitutionally protected reasons.

To open forthwith a broad and honest conversation on the means by which 
Americans may constitutionally resist and overturn the judicial usurpations 
evident in Obergefell.

And in a companion "call to action" 
(https://campaignforamericanprinciples.com/scholars-statement/), Robbie George 
solicits scholars' signatures to "call on all who aspire to be our next 
President to pledge to treat Obergefell, not as 'the law of the land,' but 
rather (to once again quote Justice Alito) as 'an abuse of judicial power,'" 
and to "refuse to recognize Obergefell as creating a binding rule controlling 
other cases or their own conduct as President."

Does anyone recall any remotely similar initiative by legal scholars in the 
past half-century or so?  Predictions on how many, if any, presidential 
candidates will make the pledge?
___
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RE: Assessing a Proposed Solution to the KY Case

[Alan E Brownstein]

I think I see one source of our disagreement more clearly now, Kevin. You 
suggest that the term "this office"  has two meanings, the individual holding 
the office and the physical location of the office. I think, however, there is 
a third meaning. The term "office" refers to the government power that is 
vested in the individual who holds the office. For example, the executive power 
of the United States is vested in the President. So if a person said, "All 
executive powers required to be exercised by the office of the President will 
only be exercised if they comply with and are not inconsistent with the 
religious beliefs of the individual holding the office of the President" we can 
understand that the office of the President involves more than the identity of 
the individual holding that office. It refers to government power and authority 
- the executive powers vested in the President.

County clerks are not presidents, of course. And I understand your argument 
that they may be fungible with regard to some of their authority. But I take it 
that Ms. Davies (and you) are arguing that there is no Establishment Clause 
problem if the governmental power and authority vested in a county clerk is 
restricted to only those exercises of authority that are consistent with the 
clerk's religious beliefs. It is this governmental authority - the power to 
confer the legal status of marriage on a couple - that she insists must be 
exercised in a way that comports with her religious beliefs.

And it is this idea -- that the government authority vested in an office, a 
position, must comport with the religious beliefs of the official holding that 
office - that raises, at least in my judgment, Establishment Clause concerns.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 15, 2015 1:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case

Thanks, Alan, for the reformulation. I prefer something like this, instead:

"Pursuant to Kentucky law, the county clerk's authority will not be exercised 
in a way that forces him or her to act contrary to his or her religious beliefs 
as long as this does not violate the rights of others. All licenses and other 
documents requiring the county clerk's authorization are available through this 
office under the authority of the county clerk here or of some other official 
authorized by state law to issue them."

I do not think this accommodation violates the Establishment Clause. (I haven't 
thought through potential compelled speech issues with a sign as an actual rule 
to be implemented, but I like the thought experiment of trying to put the 
position in sign form to boil it down to essentials.)

One difference between my formulation and Alan's is to take out "required to be 
authorized by this office." The phrase "this office" is ambiguous. It could 
mean  "this office" (designating the human being holding a particular office, 
the actual county clerk) and "this office" (designating a physical location, 
where the county clerk works). The two sentences in Alan's sign are probably 
best understood to use the two different meanings I've distinguished, but the 
first sentence could be misinterpreted. In the first sentence "this office" is 
probably best understood to mean the actual county clerk (a human being) with 
authority over the physical location that the sign is posted in. In the second 
sentence, "this office" is probably best understood to mean the physical 
location that the sign is posted in.

My reformulation eliminates the ambiguity. Under Kentucky law, the licenses are 
to be authorized by a human being holding a particular office (namely, by one 
of the 120 people holding the office of county clerk). This is the authority of 
a real, live, breathing person who holds a particular public office enabling 
her to perform certain activities. Alleviating a burden on her exercise of 
religion does not give conscience protection to "the office of county clerk," 
understood as a government entity or a place that somebody goes. The protection 
is personal to a human being.

Kevin

From: Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>>
Reply-To: Law & Religion List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Tuesday, September 15, 2015 at 2:06 AM
To: Law & Religion List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Assessing a Proposed Solution to the KY Case




I think I understand Kevin's argument from his last post better than I did 
before, but I still disagree with it. Let me check my understanding of his 
position. Suppose Kentucky adopted an accommodation which it desc

Re: Assessing a Proposed Solution to the KY Case

[Alan E Brownstein]

I think I understand Kevin's argument from his last post better than I did 
before, but I still disagree with it. Let me check my understanding of his 
position. Suppose Kentucky adopted an accommodation which it described in a 
sign that was to be posted in each county clerk's office.


"Pursuant to Kentucky law, all licenses or other documents required to be 
authorized by this office will only be issued if they comply with and are not 
inconsistent with the religious beliefs of the county clerk. Licenses and other 
documents inconsistent with the county clerk's religious beliefs may be 
obtained at this office in a timely fashion under the authorization of an 
alternative county clerk from some other county who has no religious objection 
to authorizing the licenses or documents."


Am I correct, Kevin, that you do not think this accommodation would violate the 
Establishment Clause?


Alan



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Walsh, Kevin 
Sent: Monday, September 14, 2015 11:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case


Chip et al. — Perhaps events on the ground have overtaken all of this. Still 
worth thinking about to figure out how better to deal with similar events in 
the future. For responsive points, see comments below in brackets. The gist is 
that if “Davis to Mason” is constitutional, then “Davis to Mason with 
authorization from someone else with state-law authority" is also 
constitutional. Perhaps the “with authorization” part is unnecessary; depends 
on the content of state law. But its addition should not make a difference of 
constitutional magnitude.  Kevin

From: Ira Lupu >
Reply-To: Law & Religion List 
>
Date: Monday, September 14, 2015 at 10:29 AM
To: Law & Religion List 
>
Subject: Re: Assessing a Proposed Solution to the KY Case

Correction to my message from a few minutes ago -- it was Michael Masinter (not 
Marty Lederman) who invoked, on a related thread on this list, the quotation 
"l'etat c'est moi" in reference to Kim Davis.

On Mon, Sep 14, 2015 at 10:09 AM, Ira Lupu 
> wrote:
Why would Judge Bunning (not) order the work-around that Kevin suggests?  It 
would reasonably accommodate Kim Davis, Kevin says, with no harm to others.

With respect, Kevin --

1.  Davis' position seems to be that her Office (not just her person) is a 
"person" protected by Kentucky RFRA (the only legal basis for accommodating her 
at all).  But her Office may not exercise religion.  THAT represents an 
Establishment Clause violation, whether or not anyone is harmed by it.  (I took 
this to be the basis for Marty's reference to Louis Quatorze, "L'etat c'est 
moi).   You have not addressed this point whatsoever. [KCW: This isn’t Davis’s 
position. The accommodation goes to her personally and does not rest on 
recognizing an “Office” exercise of religion. (As an aside, the county has 
nothing to do with this, as their filings make clear. With respect to marriage 
licensing, the county clerk is a pass-through agent for the state.) Under 
Davis's understanding of state law, there is nobody else in her office who is 
able to issue a valid license apart from her authorization; only a county clerk 
possesses authority to issue a license (though deputy county clerks can sign 
them). Marty has suggested Davis is wrong about her understanding of state law. 
If Marty’s right, then the universe of other officials the state can use to 
satisfy its constitutional obligations is bigger than Davis or I thought. My 
proposed workaround would then be unnecessary. But if a county clerk’s 
authorization is necessary, then my proposed workaround secures the validity of 
licenses issued by someone other than Davis. This no more involves recognizing 
an “Office" exercise of religion than Marty’s solution of shifting from Davis 
to Mason. The point of both is to move from one person with state-law authority 
to another person with state-law authority, and to do so in a way that makes 
the experience of federal right-bearers the same.]

2.  If Ms. Davis refuses to allow any marriage licenses to issue under her name 
or the authority of her Office, her claim to accommodation seems fatally 
overbroad.  She has no religious objection to different-sex marriage.  What 
ground or judicial authority is there to arrange for the Clerks of other 
counties to take responsibility for those? [KCW: See your next point. When all 
the requirements of the law, including Equal Protection, are included, shifting 
all marriage licensing is not fatally overbroad, but a way of avoiding a 
constitutional violation. In terms of authority to order this, I’ve 

Re: Assessing a Proposed Solution to the KY Case

[Alan E Brownstein]

While I appreciate Kevin's efforts to identify an accommodation that will work 
here --  and I certainly try to look for acceptable accommodations in resolving 
religious liberty disputes -- I'm inclined to agree with Jim and Chip here.  A 
public official's insistence that the government office she works for (or 
directs) has to stop performing its lawful functions because continuing to do 
so gives the official's stamp of approval to conduct the official finds 
religiously objectionable is an unacceptable demand for accommodation. If a 
religious individual working for the government is assigned a duty that 
conflicts with her religious obligations, she may request an accommodation. It 
is possible to argue that the accommodation should be granted --  particularly 
if the duties can be assigned to other workers at no cost to them or to members 
of the public. But she can't insist that her office stop performing the 
objectionable function.  In essence, Ms. Davis is demanding that all the 
operations of the clerk's office that are identified as operating under the 
county clerk's authority must be consistent with her religious beliefs or 
assigned to another government office.


The solution to a conflict of that scope and nature is for the religious 
individual to resign from her position. It cannot be that the authorized 
functions of every government office must vary depending on the varying 
religious beliefs of the official directing its operation. Assume there are 
three counties: in County A, the clerk opposes same-sex marriage on religious 
grounds. In County B, the clerk opposes inter-faith marriages between Jews and 
non-Jews on religious grounds. In County C, the clerk opposes marriages by 
previously divorced individuals on religious grounds. Does our commitment to 
reasonable religious accommodations require us to accept a system in which 
same-sex couples living in County A have to have their marriage licenses 
authorized by the county clerk of County B or C. Inter-faith couples involving 
one Jewish partner living in County B must obtain a license authorized by 
clerks in County A or C. Divorced individuals living in County C who want to 
get married must obtain a license authorized by clerks in County A and B. And 
that's just the situation for marriage licenses. What about all the other 
functions identifiably authorized by the county clerk.


Alan



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 
Sent: Sunday, September 13, 2015 6:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case

I think Jim Oleske's analysis is spot on, and completely of a piece with Doug 
Laycock's point, offered early in this discussion, that Rowan County cannot 
assert a religious identity.  Accommodations can be made for Davis personally, 
but not for the County. The 6th Circuit might wisely put an end to the 
overstated claims for accommodation by ruling that Kentucky RFRA, whatever its 
legitimate scope, cannot be construed and applied in ways that violate the 
Equal Protection Clause or the Establishment Clause.  Any construction of KRFRA 
that denied same sex couples access (physical or symbolic) to the authority of 
Rowan County would constitute such a dual violation.

On Sun, Sep 13, 2015 at 1:07 AM, James Oleske 
> wrote:
Stepping back from the detailed discussion Kevin, Marty, and others have been 
having today about the intricacies and proper interpretation of Kentucky law, I 
wanted to address more broadly Kevin's suggested solution to the Davis 
situation.

Here's the key testimony from Kim Davis that Kevin quotes in his earlier 
message to the list and in a blog post at Mirror of Justice:

THE COURT: All right. You just object to your name being on the license?
THE WITNESS: My name and my county, yeah.
THE COURT: Well, your county, you're elected by the county. But if it said 
Rowan County and listed a deputy clerk -- let's say the deputy clerk that would 
be permitted to, or has agreed that he or she would not be religiously opposed 
to issuing the license, if it just was the deputy clerk's name with Rowan 
County and not your name, would you object to that?
THE WITNESS: It is still my authority as county clerk that issues it through my 
deputy.
THE COURT: All right. Very well. You may step down. Thank you.

To address Davis's concerns, Kevin's proposed solution is to have deputy clerks 
working in Rowan County issue marriage licenses on the authority of clerks from 
other counties. Thus, the resulting license issued in Rowan County would say 
something like "issued by the office of Bobbie Holsclaw, Jefferson County 
Clerk, by [insert name of Rowan County deputy clerk]."

In a message to list earlier today, Kevin reports that some of the resistance 
he has gotten to this idea has come from 

RE: Davis doubles down

[Alan E Brownstein]

Doug is probably correct that the absence of Ms. Davis’s name on the marriage 
license form sends a powerful statement of her beliefs. But in evaluating the 
merits of granting her an accommodation I would consider that an incidental 
consequence of her religious liberty claim – and in my judgment it is a 
negative consequence that counts against the granting of an accommodation.

Certainly, as a free speech matter, Ms. Davis has no constitutional right to 
use her office or its resources to proclaim her  religious or political beliefs 
or to express views that are inconsistent with her official responsibilities. 
And as a public policy matter I see little reason to support public officials 
using their office and its resources to communicate their personal religious or 
political views to the community.

Also, to the extent that the accommodation is based on a state RFRA law or a 
separate statute that only accommodates people in Ms. Davis’s position who 
assert religious claims of conscience, the fact that the accommodation only 
provides religious people this vehicle to project and magnify their message and 
denies it to non-religious people is problematic. This may be an unavoidable 
consequence of a religious accommodation, but it conflicts with our commitment 
to provide a regulatory environment that allows both religious and 
non-religious people an equal opportunity to influence the market place of 
ideas.

I do not suggest that this incidental speech consequence, standing alone, 
justifies denying an accommodation in cases like this one. But I think it 
belongs on the “do not accommodate” side of the ledger.

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 8:05 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


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 James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing that her claim should be viewed as more modest 
than the claims in the contraception cases and they framed that argument by 
emphasizing (their emphasis, not mine) the phrase "devoid of her name."

Finally, in judging the burden a claimed accommodation imposes on the 
government, I'm inclined to think that we need to look at more than the 
logistical issue of whether "the government could easily 

Re: What's happening in KY? -- wrong case, wrong parties

[Alan E Brownstein]

I appreciate Eugene's point here, but let me press the argument because I think 
it may be more complicated than Eugene suggests.


Assume arguendo that having to go to a different county to get a marriage 
license does not impose a substantial burden on the right to marry. (I think it 
does, but assume it doesn't). Also assume that Palmer is good law and deserves 
respect as precedent. (I think it bad law and incorrectly decided.) Now suppose 
Ms. Davis said, "I'm ordering my office not to issue marriage licenses to all 
couples in order to make it as inconvenient and burdensome as possible for 
same-sex couples to marry. It isn't that much of a burden, but it is all that I 
can do in my official capacity." (I am not suggesting that this is Ms.Davis's 
actual motive.)


What happens in that case? I don't think the invidious motive in my hypo is 
that different than it was in Palmer. As the dissent in Palmer made clear, 
everyone understood why the swimming pools were being.  There are several 
distinctions between my hypothetical and Palmer, however. First, race was a 
suspect class when Palmer is decided. The Supreme Court has not suggested that 
sexual orientation is a suspect or quasi suspect class. It is unclear how 
conventional equal protection doctrine should apply to sexual orientation 
discrimination under the Court's current holdings. That cuts against an 
invidious motive/equal protection argument in my hypo.


Obergefell does say that there is an equal protection dimension to striking 
down bans on same-sex marriages. But it is an equal protection analysis based 
on treating people differently with regard to their exercise of a fundamental 
right. If we were evaluating a legislative decision, that would also cut 
against an invidious motive/equal protection analysis. The Court has generally 
been unwilling to accept challenges to laws that allegedly abridge fundamental 
rights on the grounds that the law is invidiously motivated. See, e.g. O'Brien 
etc. But here we are evaluating one official's decision. This is an 
administrative decision, not a legislative decision. There is no institutional 
motive issue here. And Court's have been much more willing to allow challenges 
to the abridgement of fundamental rights to go forward based on impermissible 
motive if the challenge is directed at the administrative decision of a 
government official. That cuts in favor of taking motive into account even if 
the decision was formally neutral.


Of course this still leaves open the question of whether Ms. Davis's actual 
motive should be considered to be invidious or impermissible. I do not intend 
my comment to reflect any position on that question.


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Sunday, September 6, 2015 7:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


   1.  If indeed the district court is right, and stopping the 
issuing of marriage licenses and certificates in Rowan County violates the 
right to marry, then that’s a Due Process Clause violation, with no need to 
consider the Equal Protection Clause.



   2.  But if the district court is mistaken, and there’s no 
constitutional violation in all Rowan citizens having to go out-of-county to 
get a license, then it seems to me that Palmer v. Thompson is indeed the right 
analogy.  There’s no violation of a substantive constitutional right, just the 
closing of a program that the government (by hypothesis) has no obligation to 
operate, albeit out of disapproval of same-sex marriages.



Hunter v. Underwood strikes me as more distant, and in any event it didn’t turn 
on the existence of a fundamental right; the analysis would have been the same 
as to non-fundamental-rights, see, e.g., Washington v. Davis.



   Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Sunday, September 06, 2015 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- wrong case, wrong parties



In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad

On Sep 6, 2015, at 5:12 PM, "Steven Jamar" 
> wrote:

Mark and I disagree about the nature of animus and bias in the violation of 
constitutional rights.  I think the source of her bias is 

Re: Substantial burdens, RFRA, Chip Lupu's comments

[Alan E Brownstein]

Chip raises some important and provocative points about the way this litigation 
has gone forward.


Let me re-characterize one of them and question another.


Putting aside issues about complicity and whether Ms. Davis's actually 
authorizes anything by having her name on the license, let's just assume that 
she believes that it religiously unacceptable for her to have her name on a 
marriage license issued to same-sex couples.  Further let's assume that this 
constitutes a substantial burden under RFRA. While I am generally sympathetic 
to understanding substantial burden expansively in these cases, I do think that 
doing so has consequences for the rest of a RFRA analysis. As I suggested in an 
earlier post, if RFRA (or a new explicit religious accommodation statute) 
justifies removing a county clerk's name from a same-sex couple's marriage 
license, under Establishment Clause anti-favoritism requirements, that 
accommodation will have to be extended to government officials who adhere to 
other religious beliefs who are similarly situated. It may be that some there 
are some documents as to which the state has a compelling interest in insisting 
that an official's name is publicly displayed on the document. But surely there 
are other situations in which the state's interest would be no stronger than it 
is in the case of a county clerk's name on a marriage license. Additional RFRA 
or establishment clause litigation would be necessary to determine the ultimate 
scope of this accommodation.


One question Chip's post poses is what is a government official's 
responsibility in these circumstances. Clearly, the official can bring a 
lawsuit to seek declaratory or injunctive relief under RFRA or sue under the 
Establishment Clause to seek a comparable accommodation. But that doesn't mean 
that the official on his or her own initiative can order his or her office to 
stop issuing the religiously problematic licenses -- and/or ordering his or her 
office to stop issuing all similar documents as well. I'm not sure whether this 
creates grounds for estoppel. But certainly the state has a strong argument 
that it has a compelling state interest in not having any number of government 
officials ordering their offices to stop issuing religiously objectionable 
documents on their own initiative because they think they may have a viable 
RFRA claim that would require the deletion of their name from the document. Or 
to put it another way, does the state have a compelling interest in requiring 
government officials to seek judicial review (even if preliminary) of the 
viability of a RFRA claim before they shut down a government activity on the 
grounds that its continued operation burdens their faith?


Chip's third point suggests that there is no substantial burden under Kentucky 
law because  Kentucky is not penalizing Ms. Davis's conduct. Whatever burden 
she experiences is a consequence of U.S. constitutional law. I'm not sure about 
this point. The constitutional requirement concerning same-sex marriages can be 
complied with in a variety of ways. It should not violate the right to marry 
for Kentucky to give county clerk's the discretion to decide whether or not 
they wanted their name printed on all of the marriage licenses issued by the 
clerk's office. If I understand earlier posts correctly, Kentucky law requires 
the printing of the county clerk's name on the marriage licenses issued by a 
clerk's office. That is a state law requirement. It may be that this state law 
would not be religiously problematic were it not for the constitutional mandate 
requiring states to recognize same-sex marriages. Given that mandate, however, 
the state's continuation of its requirement that the clerk's name be printed on 
the document would seem to make state law a source of the burden on Ms. Davis's 
religious beliefs. And a change in state law would eliminate that burden. If 
the conjunction of state and federal law impose a burden on a state official's 
religious exercise, wouldn't a state RFRA claim be available to challenge the 
state law component of the burden?


Chip is certainly correct the state is not taking any steps at the moment to 
enforce its law against the clerk. But I'm not sure that enforcement actions by 
state officials are a necessary foundation for a state RFRA action. Isn't a 
direct conflict between the facial requirements of a law and an individual's 
religious exercise sufficient to allow a state RFRA claim to go forward? Ms. 
Davis can argue that if she complies with state law and fulfills her 
constitutional obligation to obey the U.S. constitution as a state actor, she 
will violate her religious beliefs.

(Maybe there would be justiciability issues in federal court under federal RFRA 
if the government was not enforcing the law against the religious individual, 
but state courts are usually much less restrictive in providing litigants 
access to a forum.)


Alan

RE: Question about the Kentucky County Clerk controversy

[Alan E Brownstein]

Sorry to be late joining this discussion, but I had two idiosyncratic , left 
field thoughts on this issue.

If an accommodation is created (either through a separate statute or a RFRA 
decision) that permits the county clerk to delete his or her name from marriage 
licenses to mitigate the burden on clerks who oppose same-sex marriage for 
religious reasons, would that decision require similar accommodations for other 
government employees who object on religious grounds to having their name on 
other documents issued by their office. Under establishment clause doctrine 
prohibiting religious favoritism in the granting of accommodations, just how 
broad would an accommodation have to be (either initially or eventually) to 
avoid religious preferentialism concerns.

Also, do the functions of the county clerk’s office make it a government agency 
in which religious accommodations based on substantive disagreements with the 
law might be considered particularly problematic. If the county clerk’s office 
in Kentucky conducts and supervises elections as the clerk’s office does in 
California, we might reasonably require that individuals who hold that office 
must be prepared to set their personal beliefs aside and operate their office 
under scrupulously neutral criteria. Of course, one might distinguish between 
different functions performed by the clerk’s office. Issuing marriage licenses 
might be distinguished from certifying the results of elections.  But this may 
be an office where the appearance of impartiality is particularly important. 
Just a thought.

Alan

From: religionlaw-bounces+aebrownstein=law.ucdavis@lists.ucla.edu 
[mailto:religionlaw-bounces+aebrownstein=law.ucdavis@lists.ucla.edu] On 
Behalf Of Volokh, Eugene
Sent: Thursday, September 03, 2015 8:11 AM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

According to the district court opinion, Davis has six deputy 
clerks.  “Four of Davis’ deputy clerks share her religious objection to 
same-sex marriage, and another is undecided on the subject.  The final deputy 
clerk is willing to issue the licenses, but Davis will not allow it because her 
name and title still appear twice on licenses that she does not personally 
sign.”

Eugene


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

___
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Alan E Brownstein]

Let me apologize in advance because I probably will not be able to participate 
in a timely way to further posts in this thread (which is a very interesting 
thread). But let me question Eugene's suggestion that just as sufficiently 
cabined rules for parade permits prevent viewpoint discrimination similarly 
cabined rules for the distribution of grants to secular and religious 
institutions should prevent undue risk of religious discrimination.


I see several problems with this analogy. First, there are meaningful 
constitutional constrains on content-neutral speech regulations, although they 
are less rigorous than strict scrutiny. Thus, a structured process for awarding 
permits that creates viewpoint discriminatory effects could still be challenged 
as impermissible even though it wasn't facially discriminatory. What 
constitutional checks are there on  facially neutral grant criteria that will 
predictably favor some faiths over others? Take an easy case. A state sets up 
eligibility rules for grants to private schools (through vouchers or direct 
aid) that requires a school to have at least 250 students and to have been in 
existence for 5 years in order to receive funds. Obviously this rule favors 
larger faiths -- it probably excludes a great many minority faiths in many 
communities entirely --  and it favors faiths with existing educational 
infrastructures. What standard of review applies to grant criteria like this? I 
assume rational basis review. A permit system that limited permits exclusively 
to large groups that had been around a long time would be subject to free 
speech challenge.


Second, and a related concern, is the fact that practices and behavior are less 
likely to correlate with speech viewpoints and much more likely to correlate 
with religious belief and affiliation. I think a program that requires schools 
receiving funds for playgrounds to operate the playgrounds on Saturday as well 
as the school week is facially neutral under the Court's religion clause case 
law. Am I wrong about this? I doubt that this would constitute a religious 
gerrymander under Lukumi. I'm not suggesting that there aren't some 
correlations between behavior and practices and viewpoints of speech. I just 
think it is a lot easier to use neutral criteria to discriminate on the basis 
of religion.


My third concern does not apply to Eugene who has been clear that he does not 
support constitutionally mandated accommodations to protect religious 
individuals or institutions against neutral laws of general applicability. But 
if you believe, as I do, that the fact that a regulation is a neutral law of 
general applicability provides inadequate assurance that the law does not 
unfairly discriminate against religious groups or unreasonably burden religious 
liberty than I find it hard to understand why you wouldn't be similarly 
concerned about the risk of discrimination when facially neutral criteria is 
used to distribute funds to religious individuals and institutions. If anyone 
on the list supports grants to religious schools or other religious 
institutions and also supports mandatory requirements that negate or 
substantially reduce the risk of religious discrimination, I would be very 
interested in reading their post.


Alan Brownstein





From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Volokh, Eugene vol...@law.ucla.edu
Sent: Tuesday, June 2, 2015 8:33 AM
To: Law  Religion issues for Law Academics
Subject: RE: 8th Cir. upholds exclusion of religious schools from playground 
safety funds


   1.  In Trinity, the state apparently had a pretty detailed 
application evaluation process for resurfacing grant applications, to the point 
that it could tell Trinity that it had ranked 5th out of 44 applications.  I 
imagine many highly bureaucratized processes with 44 applications, especially 
ones that don't involve difficult judgments of artistic or scientific quality, 
are comparably structured.  In the Free Speech Clause context, sufficiently 
cabined (even if not perfectly mathematical) rules for parade permits and the 
like are seen as sufficient to prevent undue risk of viewpoint discrimination.  
I don't see why sufficiently cabined rules for grant applications wouldn't 
suffice to prevent undue risk of religious discrimination.



   2.  I think that religious institutions should generally be able 
to participate in generally available benefits programs on the same footing as 
secular ones, even if the benefits (e.g., tax exemptions, post-natural-disaster 
rebuilding funds, and so on) can be used for specifically religious aspects of 
the institution; in this respect, I largely agree with the Mitchell plurality.  
But note that, in the playground case, it is extremely unlikely that the safer 
playground surface would itself be used for, say, religious worship; even if 
there is a religious service 

Re: Religious organizations, tax-exempt status and same-sex marriage

[Alan E Brownstein]

I would prefer to see a Supreme Court opinion striking down bans on same-sex 
marriage based on a due process fundamental right to marry analysis or on the 
argument that gays and lesbians are a suspect or quasi suspect class or some 
mixture of the two. If the Court does decide to resolve this issue under 
rational basis review, the results need not be as dire as Michael suggests -- 
although a lot depends on how the opinion is written.


I'm not sure that the polity would read an opinion to be condemning religious 
beliefs about homosexuality if the Court stated, for example,  that there are 
no rational secular reasons for prohibiting same-sex couples from marrying and 
that while people have sincere deeply felt religious beliefs about this issue, 
such exclusively religious beliefs cannot justify the rationality of a law for 
constitutional purposes. Given that the Court accepts idiosyncratic religious 
beliefs as religious for constitutional purposes, all laws could be justified 
as rational if religious beliefs in the law's substance was enough to 
rationalize it.


I think many people understand that we do not protect religious liberty because 
we agree with the beliefs and practices we are protecting or that we think 
those beliefs are true, or good, or rational. We protect religious liberty 
because we value the liberty to believe and practice one's faith as one chooses 
-- without regard to whether the majority agrees with the minority's faith. And 
the Court could write a rational basis opinion that does not detract from this 
understanding.


But the cultural impact of the opinion depends a lot, of course, on what the 
opinion says.


Alan






From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Michael Worley mwor...@byulaw.net
Sent: Sunday, May 3, 2015 9:20 PM
To: Law  Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage

Marty,

Sorry to pick hairs, but I'm curious.  You think it is easy for the Court to 
say that the denial of SSM does not satisfy rational basis review.  You also 
said to Alan that you do not believe that religious beliefs opposing same-sex 
sexual relationships are purely an irrational bias.

It seems to me hard, if not impossible to argue both that laws prohibiting 
same-sex marriage are not rational and for that to not impact our culture.  
This cultural impact, to me, will imply that religious beliefs opposing 
same-sex sexual relationships are purely an irrational bias.

I simply don't trust the state of public discourse enough for people to 
distinguish between rational basis review with a bite and religious rationality.

So I ask:

1) Do you support a decision that man-woman marriage laws fail rational basis 
review? (This isn't a gotcha question; I just think it is important to start at 
the basic level either way)
2) If the court rules that man-woman marriage laws fail rational basis review, 
will that convey permission for citizens to labal those who continue to support 
 man-woman marriage laws as irrational, or at least, insensitivity caused by 
simple want of careful, rational reflection as ruled in Garrett.
3) If, contrary to your hopes, one or more of the following become a part of 
our culture, will that hurt religious people and institutions?
A)  that religious beliefs are simply a product of time and culture,
B)are purely an irrational bias, or
C) are dependent upon, or necessarily reflect, bigotry (or animus, for that 
matter)
 D) that conservative Christian teachings about sex have the same place in the 
church that former teachings about race did.

4) Assuming opposition to same-sex marriage is seen as irrational, is there any 
reason universities should be allowed to discriminate against same-sex couples?

I ask these questions because in my mind, a ruling based on no rational basis 
impacts the public square in such a way that makes any university that holds 
the religious values we've mentioned (and at least 10 or 20 will continue to do 
so) up for attack?  I feel like you see a distinction I'm missing here, or 
oppose a ruling based on the lack of rational basis.

I look forward to your and any others responses.

Thanks,
Michael

On Fri, May 1, 2015 at 8:11 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Alan:  Thank you for that very thoughtful and candid reply.

I apologize if my wording in response to Eugene's post was infelicitous, or 
insensitive, in any way.  I was trying to be very careful not to suggest that 
all religious objectors would change their minds.  I agree with you that some 
will not.

And I certainly did not write, and did not mean to suggest in the slightest, 
any of the following:

-- that religious beliefs are simply a product of time and culture

-- that religious beliefs opposing same-sex sexual relationships are purely an 
irrational bias

-- that religious 

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

[Alan E Brownstein]

The school or college could discriminate against the LGBT community in a 
variety of ways -- both as to students and faculty. But let's assume we are 
talking about 2017 and a privately funded religious college denies admission to 
a student because they are married to someone of the same sex. (I don't know if 
there are schools that have such policies today -- but it's a hypo.) Or let's 
assume a privately funded religious pre-school refuses to accept children of a 
same-sex married couple.


From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Marty Lederman lederman.ma...@gmail.com
Sent: Thursday, April 30, 2015 11:42 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

A school that does not admit LGBT students, Alan?  Are there even such schools 
now?  In what year does your hypo occur?

On Thu, Apr 30, 2015 at 2:30 PM, Alan E Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:


None of us can predict the future very well. The world today is very different 
than I thought it would be 30 years ago.


The question we can answer today is whether we would support or oppose the 
denial of a tax exemption to a privately funded religious school that engages 
in discrimination against the LGBT community. That answer, even as a matter of 
principle, may change over time. But it is a place to begin.


So if I may ask, Jim. Would you support or oppose the denial of a tax exemption 
in such a case?


Alan



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of James Oleske jole...@lclark.edumailto:jole...@lclark.edu
Sent: Thursday, April 30, 2015 8:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

Thanks, Michael. Let me close on a point of agreement, albeit one that I 
understand will give you no comfort.

In a 2011 article, Doug wrote the following: There will come a time when 
religious hostility to gays and to same-sex relationships will be as 
disreputable as religious hostility to blacks and to interracial 
relationships But it makes all the difference in the world how we get 
there.

I have disagreed with Doug on the how we get there piece of that assessment, 
as he supports broader accommodations in the short term than do I, but I think 
Doug's long-term assessment is likely correct, with one caveat. The caveat is 
that because racial discrimination is our original sin as a nation, and because 
it had consequences beyond those flowing from any other type of discrimination, 
it may always be subject to special targeting in some circumstances. Thus, 
although our antidiscrimination laws and regulations usually ban other types of 
discrimination alongside racial discrimination, sometimes racial discrimination 
is singled out for unique treatment, as the IRS rule illustrates. I think that 
same pattern will hold true in the future -- sexual-orientation discrimination 
will join sex, religion, and often a host of other types of prohibited 
classifications alongside race in most contexts, but there will continue to be 
contexts in which race discrimination is treated as unique and targeted alone.

Overall, however, I think you are right to suspect that the status/conduct 
distinction will be rejected and beliefs condemning homosexual conduct will 
become very marginalized in our society by the time your children and 
grandchildren are adults. The process has already begun, and it will continue 
to accelerate. And regardless of what happens with the IRS rule in the 
long-term, countless other laws and regulations prohibiting discrimination on a 
variety of bases will be extended to sexual-orientation discrimination, and 
that -- along with the growing acceptance of married same-sex couples raising 
families in our communities -- will reinforce a growing societal norm against 
sexual-orientation discrimination, which will be widely viewed as including 
discrimination against same-sex couples.

I think movement toward that new norm is a good thing, others think it is a bad 
thing, but I don't think there can be any doubt that it is where we are headed.

- Jim



On Thu, Apr 30, 2015 at 6:42 AM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
Thanks Jim,

I think, I was remembering the earlier Gordon College coverage that did not 
make the distinctions you mentioned (and which deserved more concern than it 
got). I do think it is conceivable Gordon College is understating its concerns, 
but agree with your interpretation of the recent stories.  That said, other 
parties (not nearly as central to the school's function as accreditation) did 
discontinue their association with the school

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

[Alan E Brownstein]

Thanks, Jim for your thoughtful response.



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of James Oleske jole...@lclark.edu
Sent: Thursday, April 30, 2015 3:42 PM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

Alan,

I would not support the denial. Although I think sexual-orientation 
discrimination should be subject to heightened constitutional scrutiny, and 
although I think sexual-orientation discrimination should be prohibited in any 
context where the government maintains civil-rights laws that use race as a 
model for broadly prohibiting discrimination on the basis of other 
classifications that are subject to heightened constitutional scrutiny (as 
virtually every state does in regulating the for-profit commercial 
marketplace), I feel differently about situations in which the government has 
uniquely targeted racial discrimination (as has been done with tax exemptions 
for nonprofit schools).

I don't think targeting of racial discrimination obligates the government to 
prohibit discrimination on the basis of all other constitutionally suspect 
classifications (shameless plug: I discuss the Canadian Supreme Court's 
adoption of this position on pages 36-37 of this piece: 
ssrn.com/abstract=2589743http://ssrn.com/abstract=2589743). And as a policy 
matter, given that we have never conditioned tax-exempt status on religious 
schools' willingness to comply with nondiscrimination norms outside of the 
racial context, I'm not inclined to start selectively doing so now. Although I 
think sexual-orientation discrimination should be banished from the for-profit 
commercial marketplace as thoroughly as discrimination on the basis of race, 
sex, religion, and disability, I also believe nonprofit religious institutions 
with nonconforming views should be able to provide a venue for fellow believers 
to pursue a shared commitment to their own values.

- Jim


On Thu, Apr 30, 2015 at 11:30 AM, Alan E Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:


None of us can predict the future very well. The world today is very different 
than I thought it would be 30 years ago.


The question we can answer today is whether we would support or oppose the 
denial of a tax exemption to a privately funded religious school that engages 
in discrimination against the LGBT community. That answer, even as a matter of 
principle, may change over time. But it is a place to begin.


So if I may ask, Jim. Would you support or oppose the denial of a tax exemption 
in such a case?


Alan



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of James Oleske jole...@lclark.edumailto:jole...@lclark.edu
Sent: Thursday, April 30, 2015 8:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

Thanks, Michael. Let me close on a point of agreement, albeit one that I 
understand will give you no comfort.

In a 2011 article, Doug wrote the following: There will come a time when 
religious hostility to gays and to same-sex relationships will be as 
disreputable as religious hostility to blacks and to interracial 
relationships But it makes all the difference in the world how we get 
there.

I have disagreed with Doug on the how we get there piece of that assessment, 
as he supports broader accommodations in the short term than do I, but I think 
Doug's long-term assessment is likely correct, with one caveat. The caveat is 
that because racial discrimination is our original sin as a nation, and because 
it had consequences beyond those flowing from any other type of discrimination, 
it may always be subject to special targeting in some circumstances. Thus, 
although our antidiscrimination laws and regulations usually ban other types of 
discrimination alongside racial discrimination, sometimes racial discrimination 
is singled out for unique treatment, as the IRS rule illustrates. I think that 
same pattern will hold true in the future -- sexual-orientation discrimination 
will join sex, religion, and often a host of other types of prohibited 
classifications alongside race in most contexts, but there will continue to be 
contexts in which race discrimination is treated as unique and targeted alone.

Overall, however, I think you are right to suspect that the status/conduct 
distinction will be rejected and beliefs condemning homosexual conduct will 
become very marginalized in our society by the time your children and 
grandchildren are adults. The process has already begun, and it will continue 
to accelerate. And regardless of what happens with the IRS rule in the 
long-term, countless other laws and regulations prohibiting

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

[Alan E Brownstein]

Thanks, Marty. I think that is an appropriate way to characterize the question 
under the current federal legal framework for colleges. (State tax laws may 
present different questions with less predictable results.)


I understand that you think attempts to revoke the tax exempt status of 
religious schools is unlikely. But I read Michael's posts and those of other 
list members who express concerns on this issue to be asking two question: 1. 
Is the possible revocation of the tax exempt status of privately funded 
religious schools because they discriminate against the LGBT community a 
reasonable and foreseeable concern and 2. Would list members oppose such 
revocations (even though they strongly disagree with the discriminatory 
policies) because of a principled commitment to religious liberty (or some more 
general associational autonomy values.) I don't know how to ask the second 
question without at least assuming an affirmative answer to the first question.


Alan



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Marty Lederman lederman.ma...@gmail.com
Sent: Thursday, April 30, 2015 12:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

OK, a religious school in 2017 wishes to exclude LGBT students -- or more 
narrowly, those who are married -- even though few, if any, do so presently.

What is the legal question then?  Whether IRS currently has statutory authority 
to pull its tax-exempt status?  Probably not since, after all, Congress has not 
even yet made sexual-orientation discrimination in higher ed a grounds for 
denial of federal funding.

I suppose the relevant question, therefore, is whether Congress should add 
sexual orientation to Title IX, but not subject it to the 1681(a)(3) 
exemption for religious organizations.

In which case, my tentative view is that Congress should probably treat sexual 
orientation the same way it treats sex in higher ed--prohibiting the 
discrimination, but with the (a)(3) religious exemption.  That is to say, 
sexual orientation should be treated like sex--no better; no worse.

But again, I doubt this'll be an actual dispute.  And, more to the point, I 
doubt the Court's decision in Obergefell will have any legal bearing on it.

On Thu, Apr 30, 2015 at 3:02 PM, Alan E Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:


The school or college could discriminate against the LGBT community in a 
variety of ways -- both as to students and faculty. But let's assume we are 
talking about 2017 and a privately funded religious college denies admission to 
a student because they are married to someone of the same sex. (I don't know if 
there are schools that have such policies today -- but it's a hypo.) Or let's 
assume a privately funded religious pre-school refuses to accept children of a 
same-sex married couple.


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Sent: Thursday, April 30, 2015 11:42 AM

To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

A school that does not admit LGBT students, Alan?  Are there even such schools 
now?  In what year does your hypo occur?

On Thu, Apr 30, 2015 at 2:30 PM, Alan E Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:


None of us can predict the future very well. The world today is very different 
than I thought it would be 30 years ago.


The question we can answer today is whether we would support or oppose the 
denial of a tax exemption to a privately funded religious school that engages 
in discrimination against the LGBT community. That answer, even as a matter of 
principle, may change over time. But it is a place to begin.


So if I may ask, Jim. Would you support or oppose the denial of a tax exemption 
in such a case?


Alan



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of James Oleske jole...@lclark.edumailto:jole...@lclark.edu
Sent: Thursday, April 30, 2015 8:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

Thanks, Michael. Let me close on a point of agreement, albeit one that I 
understand will give you no comfort.

In a 2011 article, Doug wrote the following: There will come a time when 
religious hostility to gays and to same-sex relationships will be as 
disreputable as religious hostility to blacks and to interracial 
relationships But it makes all

Re: Town of Greece - Canadian Version

[Alan E Brownstein]

Interesting that the Canadian Court was so dismissive of the preamble. As I 
recall in Australia, the reason the Australian Constitution has a free exercise 
clause and establishment clause although it does not have a Bill of Rights is 
that people were sufficiently worried about the reference to G-d in the 
preamble to their Constitution and the risk that it might be interpreted to 
empower government to involve itself with, or regulate about, religion that 
they added a provision to counter any such implication. It's been quite a while 
since I looked at this history, but I think I'm remembering it correctly.


Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Paul Horwitz phorw...@hotmail.com
Sent: Thursday, April 16, 2015 8:14 AM
To: Law  Religion issues for Law Academics
Subject: FW: Town of Greece - Canadian Version

Ruthann Robson of CUNY has, on the con law listserv, offered a post linking to 
the issuance of a judgment by the Supreme Court of Canada in the case of 
Mouvement laique quebcois v. Saguenay (City). [I apologize for not properly 
accenting it; I am reminded of page 104 of Rick Atkinson's masterful book An 
Army at Dawn.] As she notes, the case has parallels to Town of Greece v. 
Galloway, inasmuch as the Supreme Court dealt with religious opening practices 
by a city municipal council; unlike the American Court's decision, however, the 
Canadian Court ruled, essentially on Charter grounds, that such practices were 
impermissible. There are factual differences between the cases. The practices 
in Saguenay were arguably much more sectarian than most if not all of the 
prayers in Town of Greece, they were delivered by the mayor and not an invited 
guest, and they represented one faith only; there was not even a bare minimum 
of rotation among other faiths. I think it unlikely, however, that the ruling 
would have differed if the facts had been closer to those in Galloway. The 
decision was unanimous as to the result although there were differences on the 
ad law/standard of review aspects of the case.

Three interesting facts here. First, as the case notes, the Speaker of the 
House of Commons in Parliament delivers opening prayers before sessions, and 
the prayer said in this case was drawn from that language. The Court declined 
to draw any conclusions on that basis about the municipal practice, and noted 
in passing that the prayer practice in Parliament might be subject to 
parliamentary privilege. (Although I wonder whether that sufficiently answers 
questions about the constitutionality of that practice.)

Second and to my mind more interesting, the preamble to the Canadian Charter of 
Rights and Freedoms contains this language: Whereas Canada is founded upon 
principles that recognize the supremacy of God and the rule of law... The 
Court refused to allow that fact to alter its judgment on the Charter question, 
stating that the preamble articulates the 'political theory' on which the 
Charter's protections are based and was not determinative on the question of 
how to interpret the Charter itself, whose religion and conscience guarantees 
must be interpreted expansively. Although I think the Court's judgment was 
right, it was nonetheless interesting to see this kind of move, which both 
contrasts with those here who would interpret the Constitution and Bill of 
Rights in light of both the preamble to the Constitution and, for that matter, 
the Declaration of Independence; the Canadian Court's dismissive approach to 
the preamble and its importance to Charter interpretation is kind of like 
Heller-apres-la-lettre.

More generally, I doubt that the differences in result between the two cases 
had much to do with constitutional text or legal reasoning as such. The Court's 
reasoning in Saguenay, whether wrong or right, is rather airy, depends on 
abstract terms that must be filled in and do little strong work in and of 
themselves, and ultimately, as the Court itself says, has much more to do with 
its sense of what is demanded by its sense of what the Charter should be taken 
to mean given its sense of the evolution of Canadian society. The Court's 
sense is probably right, although Canadian government, including the Court, is 
something of a mandarinate and there are reasons to be skeptical about its 
conclusions about the state and the views of Canadian society. In any event, 
my general and longstanding impression is that the differences between the two 
courts and their respective interpretation of Constitution and Charter have 
much less to do with text and method than with differences in social and 
cultural mores and consensus--although the (seeming) presence of a more solid 
and less divided social consensus has much to do with the method the Court 
applies, and its ability to rely on rather open-ended balancing rather than 
highly technical, mechanical, and narrow methods of Charter 

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Alan E Brownstein]

Excellent post, Hillel. I agree with you and also see the current situation as 
deeply sad and tragic.
Alan

Sent from my iPhone

On Apr 6, 2015, at 9:21 PM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:

In an ideal world I would stand with Sandy's plea for magnanimity. I tend 
towards a compromise view of the world in general, and I believe there could be 
room for compromise here as well. I'd go even further and say that religious 
folks and LGBTQ folks are fellow travelers who should be able to find common 
cause. The history (recent and historical) of repression, discrimination, 
rejection, victimization, and dehumanization is central to both groups' 
experiences. Moreover, at their core both groups are engaged in the deep search 
for truth, meaning, identity, love, and the true self. Would both groups affirm 
this of the other, I believe there could be common purpose that eclipses that 
which divides.

Unfortunately, in the real world I don't see that happening. Frankly, I lay the 
blame primarily at the feet of religious conservatives, including some among my 
own orthodox Jewish coreligionists. For decades and longer, many religious 
conservatives have (and indeed continue to) denied the basic humanity and 
dignity of LGBTQ individuals. Not all religious conservatives have, of course, 
but it has been a constant refrain in our political and social discourse. Too 
many LGBTQ individuals to count have been cast out of their natural families 
and their religious families.

In my view, this represents both a failure of practical political judgment (the 
writing was on the wall about SSM and the ascendancy of gay rights at least two 
decades ago) and a failure of empathy and magnanimity on the part of religious 
conservatives. One tends to reap what one sows.

Most of us, I think, want to be accepted wholly by others. Those who have been 
consistently victimized and rejected by others are probably more sensitive to 
dignitary harms that others might brush off or simply accept or ignore.

There is something rich and ironic about religious individuals now demanding 
special treatment and acceptance of their different lifestyles and beliefs from 
the very people whom they have vilified and continue, in many cases, to vilify. 
It would be nice for LGBTQ people to turn the other cheek as Sandy suggests; 
but gee, that's a lot to ask of people.

To be clear, I view all of this as deeply, deeply tragic. And it answers 
neither the constitutional nor the policy questions. But descriptively, that's 
what I think is going on.

When all is said and done, I find it difficult to expect that LGBTQ advocacy 
groups--now finally enjoying a measure of political success and social 
acceptance (though by no means complete)--to simply stop demanding full legal 
and social equality. When they see groups taking actions that would undermine 
their legal and social standing and dignity, I dont blame them for organizing 
politically and attempting to stop them in their tracks. I can't fault them for 
being unmoved by pleas for acceptance, dignity, and space from the very same 
people (and fellow travelers) who have, and indeed continue to, denied them the 
same.

I hope that one day we will be able to put this tragedy behind us. It is not a 
surprise to me that Mormons in Utah--who know a thing or two about repression, 
rejection, dehumanization, and discrimination--were the first to quite publicly 
and effectively extend a hand. Whatever one thinks of the ultimate product of 
that effort, the sentiment seems to me to be the right one.

The onus is on other, more mainstream religious conservatives who are used to 
holding political and social clout to extend that hand. I just don't think that 
day is coming soon.



On Monday, April 6, 2015, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
If one treats the issue as state mandated art (in the absence of conditional 
funding, at least), I agree with Mark S. Am I correct in assuming that Mark's 
caveat doesn't apply to the wedding cake, at least if we're talking about off 
the rack cakes?  I assume also this wouldn't apply to the caterers or tent 
rentals etc.  And do we have to decide who is a genuine artist?  Imagine a 
caricaturist who often draws pictures of wedding guests as amusing souvenirs. 
Would she be able to decline the offer of employment?

If all of this intense and acrimonious discussion boils down to a few wedding 
photographers, I'm inclined to say that we who support same-sex marriage can 
afford to be magnanimous in what has clearly become our victory. But am I 
correct in this presumption?

Sandy

Sent from my iPhone

 On Apr 6, 2015, at 6:38 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edujavascript:; wrote:

 In line with Mark's suggestion, let me apologize to Chip for using such 
 strong language to describe what I believe is an error in his analysis. I 
 think I adequately explained why 

Re: submission

[Alan E Brownstein]

Thanks, Rob. A very forceful statement. But I guess no one was listening when 
you spoke.  I'm pretty sure I read statements by Indiana legislators to the 
effect that no one had ever suggested to them that this law might be used to 
shield discrimination before the law was adopted.


Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Rob Katz robkat...@gmail.com
Sent: Thursday, April 2, 2015 7:31 PM
To: religionlaw@lists.ucla.edu
Subject: submission

Dear Religionlaw,
Please consider the following submission.
Thanks,
Rob Katz

Robert Katz
Professor of Law
Indiana University Robert H. McKinney School of Law

On March 16, 2015, ten days before Indiana's Religious Freedom Restoration Act 
was signed into law by Indiana Governor Mike Pence, I testified on Senate Bill 
101 to the House Judiciary Committee of the Indiana General Assembly.  This is 
a condensed version of my testimony:

Good day. My name is Robert Katz.  I am a professor of law at Indiana 
University Robert H. McKinney School of Law where I teach First Amendment law 
and law and religion. My research focuses on the tension between religious 
freedom and anti-discrimination law. It is one of my most profound concerns as 
a citizen, a parent, and a member of the Jewish community.
The freedom of religion is one of our most fundamental rights as Americans.  
Yet, also precious to us as citizens are our civil rights and, most relevantly 
here, our right to be free from discrimination.
As I understand it, this bill has two main goals. First, it aims to assure 
Hoosiers that they will be protected from general laws that substantially 
burden their religious exercise, unless this burden is justified by a 
compelling governmental interest that is narrowly tailored to achieve that 
goal. The second purpose of this bill is to assure Hoosiers that more 
protection for religious exercise will not weaken protection for civil rights — 
especially anti-discrimination laws.
The uneven and unbalanced assurances that this bill provides to these two 
constituents — those concerned about religious liberty and those concerned 
about anti-discrimination laws — are the most lethal and difficult feature of 
this bill. While it goes to great lengths to assure Hoosiers that their 
religious exercise will enjoy more protection, it does very little, if 
anything, to assure Hoosiers that the same bill will not weaken their civil 
rights.
This lack of balance is all the more striking because this bill is arguably 
unnecessary to achieve the first goal of providing more protection for 
religious freedom. Indiana law already protects Hoosiers from general statutes 
that substantially burden their religious exercise. This protection arises from 
multiple sources.
First, the Indiana Bill of Rights expressly protects religious exercise[i] and 
does so more emphatically than the First Amendment of the federal constitution.
Second, the Indiana Supreme Court has refused to follow Employment Division v. 
Smith,[ii] the Supreme Court’s infamous 1990 decision gutting the traditional 
protections for free exercise of religion.  Instead it uses heightened scrutiny 
to review general laws that substantially burden religious exercise.
Third, the Indiana legislature has provided exception after exception from 
general laws that substantially burden religious exercise in particular 
circumstances. For example, it has granted parents an absolute right to refuse 
medical treatment for their child based on religious objection. These sorts of 
exceptions are written throughout the Indiana Code and show how available and 
accessible it is to accommodate religious Hoosiers.
But some proponents of this bill say, “We are not taking any chances. Yes, the 
Indiana Supreme Court provides heightened scrutiny to review general laws, but 
who knows, maybe they will steer in favor of Smith.  And we are concerned that 
the heightened scrutiny that the Indiana Supreme Court has provided is just not 
high enough.”
Contrast the bill’s ironclad protections of religious exercise with its silence 
— screaming silence — on protecting freedom from discrimination and its utter 
lack of assurances to Hoosiers that this bill will not infringe on their right 
to be free from discrimination.
So the problem here is what this bill does not say. It does not say that the 
protection of civil rights is a compelling governmental interest.  Why is that? 
Why does this bill not itself provide an exemption for anti-discrimination 
laws? By failing to exempt anti-discrimination laws from the bill’s reach, it 
implicitly subordinates these to the RFRA bill. It is this omission from the 
bill that instills fear in people who depend upon anti-discrimination laws and 
makes them feel like step-children compared to constituents concerned about 
their religious liberty.
The statute could literally not do more to assure people who are concerned 

RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws

[Alan E Brownstein]

Good questions, Will. Let me start with the last point and work backwards. I 
have no doubt that actions can be extremely expressive. And the action of not 
obeying what one considers to be an unjust law can send a very powerful 
message. But for free speech purposes, these actions are not protected speech. 
The draft resister who refused induction to protest the Viet Nam war goes to 
jail. The religious person who refuses to pay taxes  to support what he or she 
considers to be immoral conduct may be sending a message too but they are still 
subject to sanction. The religious proponent of segregation who refuses to 
serve an African-American patron in his restaurant to express his commitment to 
racial hierarchy can be sued for doing so. If any of these people communicated 
their message of opposing the government’s  policies with speech, but did not 
refuse to comply with a legal obligation, they would be protected by the First 
Amendment.

As you say, in the wedding photography case, the dignitary harm is tied to the 
reason the wedding photographer is refusing to provide services to the same-sex 
couple. But the defendant’s motive is often an important component of a law 
that protects people against dignitary harm and it will clearly be relevant to 
the sentence or damage award. Not all contact between one person and another 
constitutes a battery, for example. Intent is necessary and the reason why the 
contact occurs will often help to determine whether it is offensive or not.

I understand that my examples involve affirmative conduct that causes dignitary 
harm. I think one can argue discrimination in operating a place of public 
accommodation is affirmative conduct as well. If the base line is serving 
everyone, singling out members of a particular class for less satisfactory 
service or no service has an affirmative conduct dimension to it. But I take 
your point that refusing to serve a gay man or an African-American woman  is a 
decision not to engage in conduct. But I’m not sure why this distinction makes 
a difference. I appreciate the religious liberty value assigned to the wedding 
photographer’s decision, but I have never differentiated between religious 
obligations that prohibit a person from doing something (don’t work on the 
Sabbath) and religious obligations that require a person to do something (smoke 
peyote in a religious ritual). I can come up with hypotheticals where the 
dignitary harm caused by a refusal to so something is greater than the 
dignitary harm resulting from affirmative conduct.  If both are unlawful and 
both cause dignitary harm, why should we differentiate between the two or treat 
a claim for religious exemption more favorably in one case than the other.

Alan


From: Will Esser [mailto:willes...@yahoo.com]
Sent: Thursday, April 02, 2015 2:19 PM
To: Law  Religion issues for Law Academics; Alan E Brownstein
Subject: Re: Dignitary Injury as an argument against religious exemptions to 
non-discrimination laws

Alan,

Thanks for your post.  However, both of the examples that you used to 
illustrate dignitary harms involve affirmative conduct of the person causing 
the harm (i.e. battery and trespass).  In the wedding photographer example, 
however, the opposite is true.  In that example, the alleged dignitary harm is 
caused by the decision of the individual not to engage in conduct (i.e. the 
wedding photographer says that she is happy to photograph gays and lesbians who 
come in to have their pictures taken, but simply wants to abstain from 
participating in the same-sex wedding).

And more specifically, the alleged dignitary harm is explicitly tied to the 
reason the wedding photographer is refusing to participate.  In other words, 
the wedding photographer is allowed to refuse to shoot the wedding for a myriad 
of non-discriminatory reasons (e.g. I'm on vacation then, I don't shoot 
weddings for people with tattoos, etc.) and those do not cause dignitary harm 
(or they cause dignitary harm based on unprotected classifications) (e.g. I 
don't photograph fat people).  So it is in fact, the reason for the refusal to 
participate (i.e. the religious viewpoint that participating in a same-sex 
wedding ceremony violates religious precepts) which makes the difference under 
the relevant non-discrimination law and it is the reason for the refusal which 
causes the dignitary harm.

It seems to me that whether there is affirmative action by the viewer versus 
simply refusing to participate makes a substantial difference when talking 
about dignitary harms.

And on a related point, I'm not so sure that I agree with your initial premise 
that the refusal to engage in conduct which the religious believer views as 
violating her sincerely held religious beliefs is conduct and not speech.  
After all, actions speak louder than words and oftentimes the most expressive 
statement someone can make is refusing to participate in conduct.  (Not that 
I've given this point much

RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws

[Alan E Brownstein]

Will and Chip’s exchange ended on such a thoughtful and positive note (which I 
greatly appreciate)  that I hesitate to add another post to this thread out of 
fear it might break the spell.

I agree with Will and Chip’s discussion about when and whether speech by itself 
constitutes discrimination for the purposes of civil rights laws.

When we are talking about exemptions from anti-discrimination laws, however, 
the core issue isn’t  dignitary harms that result from a proprietor’s speech. 
It is dignitary harms that result from the proprietor’s conduct. (I assume we 
all agree that a discriminatory refusal to serve a customer or to hire a job 
applicant is conduct and not speech.)

And while both speech and conduct can cause dignitary harms, we typically don’t 
equate the two and excuse the latter because we would tolerate the former. I 
may have no recourse if someone insults me because I’m a Jew. Indeed, the 
person insulting has a First Amendment right to express anti-Semitic 
statements. But if he spits on my  shirt or knocks my yarmulke off my head 
(which given my bald head takes very little force), I may not be able to get a 
pound of flesh for redress, but I can sue the person for battery – even though 
my injuries are essentially dignitary harms.

Similarly, a Nazi can parade up and down the street with a sign with a swastika 
on it in front of my synagogue. But if he draws the swastika on my synagogue’s 
wall, it is trespass and vandalism and possible a hate crime. Again, the 
primary affront is a dignitary harm, but we draw a sharp distinction between 
dignitary harms caused by speech alone and dignitary harms caused by conduct or 
caused by messages expressed through conduct.

Indeed, part of the way I understand the sharpness of this distinction is that 
we protect hurtful speech – even though we have real concerns about the harm 
the speech causes -- because we mistrust government and value unfettered public 
debate. But we tell people whose conduct inflicts dignitary harms on others: Do 
not misunderstand our tolerance of your speech. We do care about dignitary 
harms. We allow you to cause  them because of the importance of freedom of 
speech – not because we doubt the injury caused by dignitary harm. Accordingly, 
if you move outside of the sphere of protected speech and engage in conduct 
that causes dignitary harm, you can be sanctioned for doing so.

Under this analysis, it would be a mistake to argue that the affront and insult 
to dignity experienced by people who are discriminated against by being denied 
service in a place of public accommodation cannot justify the government 
prohibiting such discrimination because a similar affront to their dignity 
would be tolerated (indeed, arguably protected) if it was communicated through 
speech alone.

And let me join Will and Chip in wishing everyone who celebrates Easter a Happy 
Easter, everyone who celebrates Passover a Happy Passover and everyone who 
celebrates neither a Happy Spring.

Alan


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Thursday, April 02, 2015 6:58 AM
To: Ira Lupu; Law  Religion Issues for Law Academics
Subject: Re: Dignitary Injury as an argument against religious exemptions to 
non-discrimination laws

Thanks Chip.  Looks like your last post to me was not copied to the list, so 
I've copied here for the benefit of all.

Your point about permissible legislative decisions on opt-outs is a good one, 
and the concept of allowing religious opt-outs conditioned on posting a sign 
notifying the public about the religious opt-out in order to avoid dignitary 
injury issues seems like a fair compromise position.  It certainly seems like 
it would remove the dignitary injury issue from the equation, and could 
represent the legislature's determination that the material injury by itself 
was not significant enough (given the general availability of goods and 
services in the marketplace otherwise) to negate the importance of religious 
exemptions.

I haven't seen that particular compromise proposed in any of the discussed 
legislation, but it is a concept worth further thought.

Same best wishes to you and yours.  May all those with strong feelings on these 
topics be willing to rationally debate the issues in the same manner as those 
on this list and focus on arriving at a resolution which respects the interests 
of all involved in our diverse society.

Will

Will Esser
Charlotte, North Carolina


From: Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu
To: Will Esser willes...@yahoo.commailto:willes...@yahoo.com
Sent: Thursday, April 2, 2015 9:28 AM
Subject: Re: Dignitary Injury as an argument against religious exemptions to 
non-discrimination laws

That's a good question, Will.  Before I answer, let me clarify that the 
legislature can permit the disclaiming sign (We serve all, but we are opposed 
to same sex 

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Alan E Brownstein]

I appreciate your point, Nelson. And I think the principle that private 
citizens should not have to bear the costs associated with other citizens’ 
religious observance deserves respect. Standing alone, it would often be 
dispositive.  Where we disagree, I think, is that in religious exemption cases 
I see two principles here that deserve our respect. The one I just quoted above 
and the principle that the majority and government should not prohibit or 
burden another citizen's religious observance. I think, you can tell me if I'm 
wrong, that you would agree that this principle standing alone also deserves 
respect. If there is no harm to third parties, you would support religious 
exemptions.


Then the question becomes what do we do when these two principles are in 
conflict with each other. I don't think either trumps the other all of the 
time. I think as the harm to third parties increases, the principle that 
citizens should not have to bear the costs associated with the other citizen's 
religious observance outweighs the religious liberty principle. I understand 
you to be saying that the religious liberty principle is always trumped in 
these cases without regard to the magnitude of the costs involved.


There are a lot of religious accommodations that result in third parties 
incurring some cost.  A RLUIPA land use accommodation might result in some 
neighboring homeowner, business or farmer incurring some diminution of value in 
their property. A public university accommodation shifting move-in day so that 
it doesn't fall on the Jewish High Holy days may require a shift in the 
academic calendar that inconveniences the travel plans of specific faculty, 
students and their families. A court accommodating the religious obligations of 
a religious attorney or witness may delay or otherwise increase the cost of 
litigation. A law banning male circumcision exempts Jewish families from its 
requirements. Does the existence of harm to third parties in these situations 
and others require the invalidation of all of these accommodations without 
regard to the magnitude of the harm borne by third parties?


Alan



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Nelson Tebbe nelson.te...@brooklaw.edu
Sent: Wednesday, April 1, 2015 1:38 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights



Alan, I can’t speak for others who have been defending a principle against 
burden-shifting to third parties, but I do not believe it prohibits religion 
accommodations that result in costs to the government or to the public. Rather, 
the principle prohibits government accommodations that shift meaningful costs 
from religious citizens to other identifiable private citizens. And the reason 
for this is easy to articulate and deeply rooted — private citizens should not 
have to bear the costs associated with other citizens’ religious observance.

On Apr 1, 2015, at 4:07 PM, Alan E Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:

The problem I have with Jim's argument, if I understand him correctly, is that 
it seems to suggest that no religious exemption can be accepted if it causes 
any harm to a third party. (I'm not sure if Jim includes the general public or 
the public fisc in third party.) I think many liberals believe (or at least 
they used to believe) that rights are expensive political goods. We protect 
them even if we have to incur some cost or harm to third parties or the public 
in order to do so. Of course, that leaves open the difficult question of 
determining when the price for protecting a right is too high. (And when we are 
talking about the right to discriminate in employment or public accommodations, 
leaving religious institutions aside, the price is almost always too high.) But 
I see no historical consensus that we only protect freedom of speech or 
religious liberty when the cost of doing so is zero. That certainly wasn't the 
understanding of freedom of speech that Justice Brandeis defended in his famous 
dissents on which contemporary free speech doctrine is based.

Indeed, the argument that we should only accept zero cost religious 
accommodations is not only inconsistent with the way we generally understand 
rights, it seems inconsistent with the way we evaluate government regulations 
generally. It is one thing to argue that we should reject a religious exemption 
when the harm or cost of granting it is too high. That position is consistent 
with the general cost benefit analysis we use to discuss any government 
decision. But why should we only accept zero cost religious accommodations? We 
routinely allow government to enact laws that result in some costs, burdens, 
and harms to third parties or the general public that serve a variety of 
purposes.

Alan



___
To post, send message

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Alan E Brownstein]

The problem I have with Jim's argument, if I understand him correctly, is that 
it seems to suggest that no religious exemption can be accepted if it causes 
any harm to a third party. (I'm not sure if Jim includes the general public or 
the public fisc in third party.) I think many liberals believe (or at least 
they used to believe) that rights are expensive political goods. We protect 
them even if we have to incur some cost or harm to third parties or the public 
in order to do so. Of course, that leaves open the difficult question of 
determining when the price for protecting a right is too high. (And when we are 
talking about the right to discriminate in employment or public accommodations, 
leaving religious institutions aside, the price is almost always too high.) But 
I see no historical consensus that we only protect freedom of speech or 
religious liberty when the cost of doing so is zero. That certainly wasn't the 
understanding of freedom of speech that Justice Brandeis defended in his famous 
dissents on which contemporary free speech doctrine is based.


Indeed, the argument that we should only accept zero cost religious 
accommodations is not only inconsistent with the way we generally understand 
rights, it seems inconsistent with the way we evaluate government regulations 
generally. It is one thing to argue that we should reject a religious exemption 
when the harm or cost of granting it is too high. That position is consistent 
with the general cost benefit analysis we use to discuss any government 
decision. But why should we only accept zero cost religious accommodations? We 
routinely allow government to enact laws that result in some costs, burdens, 
and harms to third parties or the general public that serve a variety of 
purposes.


Alan



From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of James Oleske jole...@lclark.edu
Sent: Wednesday, April 1, 2015 12:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

The butcher example Chip gives is why I suggested last spring that the Court 
might want to read the Lee language not as an absolute rule, but rather, a 
strong presumption against exemptions in the commercial realm that can be 
overcome in the very rare case where the basis for the presumption (a 
third-party harm) does not exist. Alas, the Court instead simply discarded the 
Lee language wholesale by saying RFRA went further than the pre-Smith law.

- Jim


On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
I do not think most liberals oppose exemptions for businesses per se -- imagine 
a law that compelled a butcher to carry products in conflict with religious 
dietary laws to which the butcher and his customers subscribe.  Liberals oppose 
exemptions that impinge on the welfare of third parties -- Hobby Lobby (those 
female employees still do not have contraceptive coverage) or wedding vendor 
exemptions from public accommodations laws (those exemptions allow material and 
dignitary injury to potential customers). U.S. v. Lee involved injury to other 
family members of Amish employees, as well as others in the social insurance 
pool.


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Re: civil rights carve out from state RFRAs

[Alan E Brownstein]

Sorry to be returning to prior posts, but I would like further clarification on 
the argument against adopting a RFRA law with a provision excluding civil 
rights laws from its application.


If a state RFRA is not intended or expected to provide any kind of expansive 
protection to discrimination in employment or public accommodations based on 
religious beliefs, then the argument against a civil rights carve out is that 
it would exclude too many claims. There are a limited number of situations in 
which religious exemptions to civil rights laws are justified and these claims 
would be excluded from protection under a general civil rights carve out.


The response to this argument is that in addition to adopting a broad civil 
rights carve out from the state RFRA, the state could negotiate explicit 
exemptions to cover the limited number of situations in which religion-based 
discrimination deserves to be protected against civil rights laws. That 
response is challenged, however, by the argument that such negotiations would 
be futile. The two sides are so polarized that they would never agree on 
explicit limited exemptions.


While that kind of legislative gridlock might prevent the adoption of explicit 
limited exemptions in the area of civil rights in some states, it is not clear 
to me why it would pose a problem to the adoption of such exemptions in a red 
state like Indiana where the state government is controlled by one party. I'm 
not sure that negotiations would be futile -- particularly if a state law 
prohibiting discrimination on the basis of sexual orientation was also on the 
table. But even assuming that negotiations between legislators wanting no or 
very limited exemptions and legislators wanting broader civil rights exemptions 
failed to reach agreement, what would stop the Republican majority in the 
legislature and the Republican governor from adopting whatever explicit limited 
exemptions they thought were appropriate. From a policy perspective, this would 
have several advantages. It would provide more clarity than the state RFRA. It 
would guarantee religious exemptions to civil rights laws in specific 
circumstances where they were thought to be particularly justified. It would 
avoid any concern that the law would be interpreted too broadly to protect 
discrimination in inappropriate circumstances. And it would allow a state RFRA 
to be adopted to protect religious liberty in all of the situations that do not 
involve discrimination in violation of civil rights laws.


Working out what the specific exemptions for religion-based discrimination 
would be would undoubtedly be hard political work, But is there any other 
reason why this approach is problematic or unacceptable? The justification for 
a civil rights carve out is fairly obvious and reasonably strong. Exemptions 
from civil rights laws raise sufficiently difficult questions with important 
interests on both sides that they merit different legislative treatment than 
most other religious liberty claims -- which could be handled by the generic 
approach provided by the state RFRA.


I suppose one could argue that even in Indiana, the legislature would be 
unwilling to explicitly protect religiously motivated discrimination even in 
limited circumstances and that the adoption of a state RFRA is the only way to 
protect such discrimination through the subterfuge of a general religious 
liberty statute. But putting aside Machiavellian explanations like this one, 
are there other reasons to oppose a carve out with explicit limited exemptions 
for religion-based discrimination when the state government has the political 
power to draft such limited exemptions at its discretion? Am I missing 
something obvious here?


Alan





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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Amazing what Hobby Lobby has wrought

[Alan E Brownstein]

Three quick points:


1.   As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor 
but issued a narrow opinion (narrow in its reasoning and holding) making it 
clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims 
challenging anti-discrimination laws (all anti-discrimination laws) because 
those laws raise fundamentally different questions than the exemption sought in 
Hobby Lobby, there might be less opposition to state RFRA laws. But the Court 
failed to do that.


2.   When people perceive the political momentum behind a state RFRA law to 
be fueled by concerns that religious employers or operators of public 
accommodations will have to hire or serve gay and lesbian job applicants or 
clients, they will interpret the law as furthering that purpose even if, in 
fact, it is unlikely to be interpreted by a court to permit such 
discrimination. Certainly, liberal opponents of such laws may overstate their 
likely impact. But conservative commentators and advocates who describe state 
recognition of same-sex marriage and anti-discrimination laws protecting gays 
and lesbians against discrimination as the greatest threat to religious liberty 
in American history certainly feed the perception that current RFRA laws are 
intended to protect discrimination in employment and public accommodations.




3.   Given today’s climate, I think if people are serious about enacting a 
state RFRA law without raising the specter of protecting discrimination, they 
should exclude civil rights laws for the RFRA laws coverage. If narrow 
exemptions from civil rights laws are to be considered, they would have to be 
resolved through specific legislation. Recently, California was able to enact a 
law that significantly strengthened the duty imposed on employers to 
accommodate the needs of religious employees by essentially  excluding a duty 
to accommodate a religious obligation to discriminate from its coverage. It is 
important to remember that there are circumstances in which religious 
exemptions are justified that have nothing to do with discrimination.

Alan




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, March 27, 2015 11:35 AM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

or, imagine if Justice Alito had not included the references to race and 
racial in this sentence:

The Government has a compelling interest in providing an equal opportunity to 
participate in the workforce without regard to race, and prohibitions on racial 
discrimination are precisely tailored to achieve that critical goal.

On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Before the ruling -- but not before the lower court decisions and the slew of 
briefs --including by many Catholic groups that were insistent upon reading 
RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did 
(indeed, more so).

The converse point works, too:  If the Court had issued a Lee-like 9-0 
decision, there wouldn't now be much of an opposition to state RFRAs (but not 
nearly the same impetus to enact them, either).

On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson 
ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote:
The reaction to Indiana strikes me as similar to Arizona. Arizona took place 
well before Hobby Lobby ruling. So the causal relationship you suggest here 
seems off.  Something else explains this.

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill

If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't be coming back to Indiana anytime 
soon.  Think about that -- a basketball boycott in Indiana!  How far we've come 
. . .

RFRA has gone from being benign, milquetoast legislation that garnered support 
across the political spectrum 20 years ago -- like Chevrolet and apple pie -- 
to becoming the political equivalent of a state adopting the confederate flag, 
or refusing to recognize MLK Day.  I doubt this would have happened if the 
Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony  Susan Alamo, 
etc., would have rejected the accommodation claim 9-0.

Of course, the market will ultimately undo the damage:  In order to preserve 
states' economic competitiveness, their RFRAs will either be repealed or 
construed to recreate the pre-Smith FEC regime.

The more interesting question is what Justice Alito's initiative augurs for the 
future of religious accommodations more broadly.

___
To post, send message to 

RE: Amazing what Hobby Lobby has wrought

[Alan E Brownstein]

If it is a mistake to prohibit discrimination in hiring based on mutable 
characteristics and vaguely defined concepts, then clearly we should not 
prohibit discrimination based on religion.

Other prohibited grounds for discrimination might also fall victim to an 
insistence that the characteristic must be immutable and not vaguely defined.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ryan T. Anderson
Sent: Friday, March 27, 2015 12:07 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

That's a disputed claim, and the weight of the evidence does not support it.


Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at 
the Johns Hopkins University School of Medicine, and Gerard V. Bradley, 
Professor of Law at the University of Notre Dame, explain:
[S]ocial science research continues to show that sexual orientation, unlike 
race, color, and ethnicity, is neither a clearly defined concept nor an 
immutable characteristic of human beings. Basing federal employment law on a 
vaguely defined concept such as sexual orientation, especially when our courts 
have a wise precedent of limiting suspect classes to groups that have a 
clearly-defined shared characteristic, would undoubtedly cause problems for 
many well-meaning 
employers.[7]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn7

McHugh and Bradley caution against elevating sexual orientation and gender 
identity to the status of protected characteristics because of the lack of 
clear definition:
Sexual orientation should not be recognized as a newly protected 
characteristic of individuals under federal law. And neither should gender 
identity or any cognate concept. In contrast with other characteristics, it is 
neither discrete nor immutable. There is no scientific consensus on how to 
define sexual orientation, and the various definitions proposed by experts 
produce substantially different groups of 
people.[8]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn8

Indeed, there is no clear scientific evidence that sexual orientation and 
gender identity are biologically determined. McHugh and Bradley summarize the 
relevant scholarly scientific research on sexual orientation and gender 
identity:
Nor is there any convincing evidence that sexual orientation is biologically 
determined; rather, research tends to show that for some persons and perhaps 
for a great many, sexual orientation is plastic and fluid; that is, it 
changes over time. What we do know with certainty about sexual orientation is 
that it is affective and behavioral-a matter of desire and/or behavior. And 
gender identity is even more fluid and erratic, so much so that in limited 
cases an individual could claim to identify with a different gender on 
successive days at work. Employers should not be obliged by dint of civil and 
possibly criminal penalties to adjust their workplaces to suit felt needs such 
as 
these.[9]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn9

On Fri, Mar 27, 2015 at 2:52 PM, Finkelman, Paul 
paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu wrote:
Both are immutable characteristics.  In that way they are very much alike. 
Indeed, while one can choose to convert to a new religion, people do not 
choose to be gay, just as they don't choose to be white or black or some 
other race.


*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296tel:518-439-7296 (p)
518-605-0296tel:518-605-0296 (c)

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com/
*
___
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Re: Anti-discrimination, legislative compromise, and strict scrutiny

[Alan E Brownstein]

​My question is a bit different than the one Hillel posed. Suppose the 
religious exemption permitting discrimination on the basis of sexual 
orientation in places of public accommodation/employment is broader than 
exemptions provided to religious objectors who believe they are required to 
discriminate on the basis of race, gender, or religion. Does that exemption 
discriminate on the basis of faith or denomination in that it provides greater 
protection to religious objectors whose beliefs prohibit them from serving or 
hiring gays and lesbians than it provides to religious objectors whose beliefs 
prohibit them from serving or hiring women, or African-Americans, or Jews? What 
standard of review should be applied to this challenge?


There are lots of cases in which members of religions that require the use of 
marijuana argued that the government discriminated on the basis of religion 
when it granted an exemption for the ritual use of peyote but refused to grant 
an exemption for the ritual use of marijuana. They almost always lost. The 
courts adjudicating these cases weren't always clear what standard of review 
they were applying or even whether they were applying a standard of review at 
all. But they seemed to think it was necessary to explain why an exemption for 
marijuana use was different and less justified than an exemption for peyote 
use. And these discussions typically involved an argument that an exemption for 
marijuana use was more dangerous and created more problems for law enforcement 
than an exemption for peyote use.


Should a similar analysis apply here? And if so, what arguments should a court 
accept to justify providing greater protection to religious objectors to civil 
rights laws protecting gays and lesbians than are provided to religious 
objectors to civil rights laws protecting women , racial minorities, or 
religious minorities? There is, of course, an argument that civil rights laws 
protecting African-Americans have a unique value and purpose in light of 
American history. But what about laws prohibiting gender and religious 
discrimination?


Alan






From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Doug Laycock dlayc...@virginia.edu
Sent: Wednesday, February 25, 2015 7:01 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Anti-discrimination, legislative compromise, and strict scrutiny

Strict scrutiny would not be triggered under Smith/Lukumi, principally because 
the legislated exemptions are for religious objectors, do not discriminate on 
the basis of faith or denomination, and are a reasonable legislative effort to 
exempt the cases where the claim to religious exemption is strongest. 
Therefore, they do not imply a value judgment that secular reasons for 
exemption are more important than religious reasons for exemption. They imply 
only a judgment that religious reasons for exemption are stronger in very small 
businesses that generally are personally run by the owner than in larger and 
generally more impersonal businesses. Of course that generalization is not 
perfect, and the precise line drawn between large and small is inevitably 
arbitrary. But there is no discrimination between religious and secular.

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 Hillel Y. Levin
Sent: Wednesday, February 25, 2015 5:53 AM
To: Law  Religion issues for Law Academics
Subject: Anti-discrimination, legislative compromise, and strict scrutiny

Friends:

As you are likely aware, the LDS church recently announced support for 
legislation prohibiting discrimination on the basis of sexual orientation in 
Utah, so long as such legislation included religious accommodations. LDS 
leaders were not explicit about the precise contours of the accommodations they 
seek, but I have the distinct sense that they would insist on broader 
accommodations than have been written into law elsewhere.

Suppose that supporters of anti-discrimination legislation were able to accept 
a compromise with LDS leaders that included accommodations for some for-profit 
service providers/employers/landlords so long as gays and lesbians could find 
alternative providers without much difficulty. (Similar to pharmacist 
conscience clauses with respect to dispensation of contraception in some 
states.) Alternatively, suppose that categorical exceptions were carved out for 
small businesses and small-time landlords. Hypothetically, what if businesses 
with fewer than 20 employees were excluded from coverage, as were landlords 
with fewer than 5 properties.

Now suppose that a religious objector who did not meet the criteria for the 
religious accommodation or categorical exception sued under the FEC. Given the 

Re: Wedding photographers and freelance writers

[Alan E Brownstein]

 and not based on the fact that a particular 
photographed person was lesbian, and just as Hands On Originals rejected a 
T-shirt printing job based on the fact that it contained a Lexington Pride 
Festival message.)

   2.  Architecture and dress (setting aside messages on the dress) 
are, rightly or wrongly, generally not seen as inherently expressive for First 
Amendment purposes.  That’s why the government can require demanding licensing 
regimes for architects but not for writers, and why the courts have not viewed 
dress codes as implicating the First Amendment based on restrictions on certain 
garments.

3.  One way, I think, to tell whether the First Amendment protects against 
compelling someone to create something is to ask whether it would protect 
against restricting the person from creating something.  If the city wanted to 
allow only one bakery in town, it could do so (see the Slaughterhouse Cases); 
likewise if it wanted to have a taxi-like medallion system for bakeries, just 
to protect incumbent businesses.  Likewise, as I noted, a state can require 
hard-to-get licenses for architects.  But I don’t think a city can set up a 
legally enforced monopoly or oligopoly for freelance writers, photographers, 
painters, or singers.

4.  Even a First-Amendment-protected business generally doesn’t have a right to 
refuse to hire someone simply because it “believe[s] these individuals will 
necessarily bring an undesired perspective to the firm’s work.”  See Associated 
Press v. NLRB.  But I do think that a business would have a First Amendment 
right to, say, refuse to write any press releases for Scientologists, and not 
allow anyone who works for the business to take such assignments in his 
capacity as an employee of the business.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, February 15, 2015 6:28 PM
To: Law  Religion issues for Law Academics
Subject: Re: Wedding photographers and freelance writers


​​
I agree with Eugene that the free lance writer who doesn't want to work on an 
advocacy piece is one of the strongest cases for an expressive exemption. But 
what if we are not talking about an advocacy piece. May a small company that 
does technical writing exclusively reject a female client who wants it to 
describe a product manufactured by women and used exclusively by women? (I 
don't think technical writing would be considered commercial speech.) What 
about architects who discriminate against religious clients? (Again leaving 
religion exercise accommodations out of the analysis.) Or is a fashion designer 
engaged in a sufficiently expressive activity so that she could refuse to hire 
African-American models because that would distort the message her designs were 
intended to communicate? What about talent agencies? May a talent agency that 
will photograph clients for portfolios as part of their overall service refuse 
to accept gay and lesbian clients because they do not want their artistic 
photographs to glorify an immoral lifestyle.And does this expressive 
exemption extend to association and hiring. Can a small firm of free lance 
writers refuse to hire a Scientologist or a woman because they believe these 
individuals will necessarily bring an undesired perspective to the firm's work? 
Even eliminating law and medicine and any kind of arguably commercial speech 
activity from the class of potential exemptions (which Eugene I think 
appropriately excludes from his expressive exemptions category), I still think 
there are a lot of hard cases. I'm not sure why a wedding photographer falls 
within the exemption category and other services do not. (By the way, I assume 
we are discussing constitutionally required exemptions and not discretionary 
legislative accommodations which is another question.)

Alan



On Feb 15, 2015, at 3:08 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   Alan:  What do you thank about freelance writers?  Say that 
someone generally takes freelance gigs to write a wide range of press releases, 
technical manuals, and pretty much anything else that comes in the door.  Along 
comes the Church of Scientology, asking the person to write a press release for 
their latest event.  Say that the press release is not “commercial speech,” but 
fully protected religious advocacy.

   It’s just that this writer doesn’t want to create this sort of 
advocacy, for a religion that he views as evil and corrupt.  He says no, and 
the Scientologists sue him for religious discrimination.  I would think that he 
should a First Amendment right not to be compelled to write religious advocacy 
that he doesn’t want to write.  Am I mistaken on that?

   As to some of the other analogies, I don’t think they quite 
work.  Some involve commercial speech, which is treated differently, compare 
Pittsburgh Press.  The closest

Re: Wedding photographers as creators of art

[Alan E Brownstein]

​I think Steve's focus on the difficulty of drawing distinctions in this area 
is helpful, but it also demonstrates the potential range of autonomy and/or 
expressive exemptions from civil rights laws.


Let's put prostitution aside for the moment since it involves a form of 
intimacy that is so personal that commercializing it commonly results in 
criminal sanctions. I think ministers practicing their religion are also a 
unique constitutional category.


But it is a very large step to move from these two special circumstances to the 
general idea that jobs and services with a personal autonomy or creative 
expressive dimension should be exempt from civil rights laws.


lots of jobs and services can be characterized as intimate or personal. 
Legitimate massage therapists and physical therapists, barbers and hair 
stylists, doctors and nurses, psychotherapists and child care providers, home 
care providers for the elderly or similar care provided in assisted living 
facilities -- just to name a few.


The list of jobs and services with an expressive and creative dimension is much 
larger. Defined broadly, speech covers persuasive and informative expression as 
well as artistic expression. But what is the limit here? Are sales and 
advertising services exempt from anti-discrimination laws? (And if you don't 
think sales involves both personal expression and creativity you never saw my 
Uncle George talk to neighborhood customers in the family hardware and 
housewares store in the Bronx.) Laws is an expressive business. A lot of the 
practice of medicine involves talking and listening often about very personal 
problems -- and being an effective family physician involves creative problem 
solving and the effective communication of information. Architecture is 
expressive and creative. So is teaching. (Most of us recognize that we are 
performers in the classroom to some extent.) Again, the list could go on.


Generally speaking, in a liberal society, we allow discrimination in employment 
and the provision of services with regard to all of these activities almost 
without limit. We pass anti-discrimination laws because we think that for these 
certain limited categories -- such as race, religion, gender, sexual 
orientation -- the conventional liberal system doesn't work right and produces 
unacceptable results. That is obviously a constraint on autonomy and creative 
choice. But it is a constraint we accept if we are serious about 
anti-discrimination principles.


So the question for me isn't whether these is a personal autonomy or creative 
expressive dimension to services like those provided by Elane Photography. It 
is, putting religion aside, whether there is some good reason to treat 
creative, expressive, personal wedding photographers differently than all of 
the jobs and services I described above and many more. Or are we willing to 
accept this large an exemption from civil rights laws (again leaving religion 
aside) on generic personal autonomy and expressive and creative freedom grounds.


Alan


From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu 
on behalf of Steven Jamar stevenja...@gmail.com
Sent: Sunday, February 15, 2015 4:41 AM
To: Law Religion  Law List
Subject: Re: Wedding photographers as creators of art

Not all bases of discrimination are the same and not all businesses are the 
same.  Discrimination based on the target’s immutable characteristics (race, 
national origin, gender, sexual orientation, etc.) is not the same as one based 
on a difference in beliefs — political, religious, moral.

A business that sells ordinary goods is not the same as a business that sells 
personal services.  And within the services industry, an artistic endeavor such 
as photography is not the same as a car mechanic.

When, if ever should these real differences matter?

There will inevitably be line drawing with lines that some lines drawn that 
some find indefensible and that are distinguishing between closely similar and 
difficult cases.  That is true in every area of law I have come across.  
Sometimes the lines get drawn on a very inarticulate “all the circumstances” 
basis with essentially no guiding principle.  That is, I submit, the nature of 
society and the law’s attempts to regulate it.

Take a wedding cake.  There is a difference between a phoned-in order to a 
bakery for a “generic” three layer wedding cake and one special ordered by a 
same-sex couple wanting some special features because it is for a same-sex 
wedding.  Does it matter whether the bakery is a commercial bakery or that the 
baker is just someone doing it on the side as a sometimes-business?  I think 
all of those sorts of things matter in deciding whether to allow the 
discrimination.

I think the wedding cake for the same sex marriage is easy — while I 
acknowledge there is some art to making a cake, for the most part it is a 
matter of selecting the cake from 

Re: Wedding photographers and freelance writers

[Alan E Brownstein]

​​

I agree with Eugene that the free lance writer who doesn't want to work on an 
advocacy piece is one of the strongest cases for an expressive exemption. But 
what if we are not talking about an advocacy piece. May a small company that 
does technical writing exclusively reject a female client who wants it to 
describe a product manufactured by women and used exclusively by women? (I 
don't think technical writing would be considered commercial speech.) What 
about architects who discriminate against religious clients? (Again leaving 
religion exercise accommodations out of the analysis.) Or is a fashion designer 
engaged in a sufficiently expressive activity so that she could refuse to hire 
African-American models because that would distort the message her designs were 
intended to communicate? What about talent agencies? May a talent agency that 
will photograph clients for portfolios as part of their overall service refuse 
to accept gay and lesbian clients because they do not want their artistic 
photographs to glorify an immoral lifestyle.And does this expressive 
exemption extend to association and hiring. Can a small firm of free lance 
writers refuse to hire a Scientologist or a woman because they believe these 
individuals will necessarily bring an undesired perspective to the firm's work? 
Even eliminating law and medicine and any kind of arguably commercial speech 
activity from the class of potential exemptions (which Eugene I think 
appropriately excludes from his expressive exemptions category), I still think 
there are a lot of hard cases. I'm not sure why a wedding photographer falls 
within the exemption category and other services do not. (By the way, I assume 
we are discussing constitutionally required exemptions and not discretionary 
legislative accommodations which is another question.)

Alan



On Feb 15, 2015, at 3:08 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   Alan:  What do you thank about freelance writers?  Say that 
someone generally takes freelance gigs to write a wide range of press releases, 
technical manuals, and pretty much anything else that comes in the door.  Along 
comes the Church of Scientology, asking the person to write a press release for 
their latest event.  Say that the press release is not “commercial speech,” but 
fully protected religious advocacy.

   It’s just that this writer doesn’t want to create this sort of 
advocacy, for a religion that he views as evil and corrupt.  He says no, and 
the Scientologists sue him for religious discrimination.  I would think that he 
should a First Amendment right not to be compelled to write religious advocacy 
that he doesn’t want to write.  Am I mistaken on that?

   As to some of the other analogies, I don’t think they quite 
work.  Some involve commercial speech, which is treated differently, compare 
Pittsburgh Press.  The closest examples involve lawyers and doctors, but those 
are treated differently, for complicated reasons having to do with tradition 
and with the professionals’ monopoly, to the point that I don’t think they 
should be much of a precedent for other speakers.  One piece of evidence:  
Lawyers have historically been required to defend criminal defendants, for free 
and regardless of their preferences – not just by antidiscrimination law, but 
by ad hoc court orders.  Surely if a government agency just ordered a freelance 
writer to write a press release for some worthy organization, on the grounds 
that they really needed the services, we’d agree that this is unconstitutional 
compelled speech compulsion, right?  If so, then I think this shows that 
(rightly or wrongly) lawyer-client speech and doctor-client speech is broadly 
subject to much more compulsion than freelance writing, photography, etc.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, February 15, 2015 2:16 PM
To: Law  Religion issues for Law Academics
Subject: Re: Wedding photographers as creators of art


​I think Steve's focus on the difficulty of drawing distinctions in this area 
is helpful, but it also demonstrates the potential range of autonomy and/or 
expressive exemptions from civil rights laws.



Let's put prostitution aside for the moment since it involves a form of 
intimacy that is so personal that commercializing it commonly results in 
criminal sanctions. I think ministers practicing their religion are also a 
unique constitutional category.



But it is a very large step to move from these two special circumstances to the 
general idea that jobs and services with a personal autonomy or creative 
expressive dimension should be exempt from civil rights laws.



lots of jobs and services can be characterized as intimate or personal. 
Legitimate massage therapists and physical therapists, barbers