Re: Johnson Amendment E.O.

[Berg, Thomas C.]

I personally am OK with focusing on the free exercise clause in cases where the 
focus is on the house of worship. But I think that the free ex clause should 
also contain a strong principle of nondiscrimination against religion. 
Advocates have been pushed to rely on free speech because of the tendency of 
courts and commentators to say there's no free exercise claim unless the 
religious exercise is very significantly burdened. For example, the arguments 
that denials of benefits almost never constitute a burden; or White's dissent 
in Widmar v. Vincent arguing that the university could single out the religious 
group because it was a free exercise case only and the group was not burdened 
because it could meet somewhere off campus.


-
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: Sunday, May 7, 2017 11:04:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


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

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

iolation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:

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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto: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 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 ele

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

t 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 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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
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 not

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

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
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu  
on behalf of Alan E Brownstein 
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 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 

Re: Has anyone compiled the facts re Hobby Lobby type corporate ACA mandate plaintiffs?

[Berg, Thomas C.]

Mary Ann, I don't know of any tabulation of all that information. You could get 
some of it reasonably efficiently through the Becket Fund HHS information site, 
 http://www.becketfund.org/hhsinformationcentral. The entries for individual 
cases in the case database list the named plaintiffs, including individuals, 
and sometimes say whether they're Catholic or evangelical; that distinction is 
also a pretty good proxy for objectors to all contraception vs. to possible 
abortifacients. Often there's a link to a press release, which might provide 
other information without requiring a read through the complaints or opinions. 
Maybe a project for a research assistant!


-
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
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu  
on behalf of Case, Mary Anne 
Sent: Thursday, August 11, 2016 10:35:20 AM
To: Law & Religion issues for Law Academics
Subject: Has anyone compiled the facts re Hobby Lobby type corporate ACA 
mandate plaintiffs?

Is there, as far as any of you know, any available compilation of background 
factual data concerning all of the for profit objectors to the ACA 
contraception mandate, including, for example, such information as their 
religious affiliation, their corporate form, the familial relationships of 
their shareholders, the nature of their manifestation of religion (not limited 
to their objections to the mandate), the extent of their objections to the 
mandate (e.g. all contraception or only abortifacients), etc.?
___
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Nutshell

[Berg, Thomas C.]

Dear List Members,

After a decade or so, I am now doing a new edition (the 3rd) of The State and 
Religion in a Nutshell for West. I would welcome comments from any list members 
who have read the book or have received useful student comments on it, and have 
been itching to tell me where I'm wrong (or even right!). I've tried to make 
the past editions offer doctrinal basics, some historical and theoretical 
frameworks, and a fair account of the major positions on debated issues. 
Comments from you would help me continue those efforts, because this list is a 
continued source of information and ideas for me.

I will work on this in earnest in January and February, so comments would be of 
most value if I received them in the next few weeks. Thanks very much,

Tom

-
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
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-


___
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RE: Colorado Cakeshop decision

[Berg, Thomas C.]

The Massachusetts Supreme Judicial Court--hardly a reactionary body--made the 
distinction between small vendor refusals that do and don't harm access 
meaningfully, in Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass. 
1994), one of the cases Eugene referred to involving small landlords and 
unmarried straight couples. The court denied summary judgment to the state in 
light of the landlord's claim under the Massachusetts constitution's free 
exercise provision, which is governed by the compelling interest test.
Without supporting facts in the record or in legislative findings, we are 
unwilling to conclude that simple enactment of the prohibition against 
discrimination based on marital status establishes that the State has such a 
substantial interest in eliminating that form of housing discrimination that, 
on a balancing test, the substantial burden on the defendants' free exercise of 
religion must be disregarded. It is no doubt true that many men and women are 
cohabiting in the Commonwealth and that numbers have increased in the last 
twenty years. We have no sense, however, of the numbers of rental units that 
might be withheld from such people because of the religious beliefs of the 
owners of rental housing. Although the prohibition against discrimination based 
on marital status was enacted over twenty years ago (St.1973, c. 187), this is 
the first case of this character that has come to our attention.

We have no indication, beyond the facts of this case, whether the rental 
housing policies of people such as the defendants can be accommodated, at least 
in the Turners Falls (Montague) area, without significantly impeding the 
availability of rental housing for people who are cohabiting or wish to 
cohabit. Market forces often tend to discourage owners from restricting the 
class of people to whom they would rent. On the other hand, discrimination of 
the sort challenged here may present a significant housing problem if a large 
percentage of units are unavailable to cohabitants.
Of course, as Eugene notes, other courts have said there is a compelling 
interest in preventing statutorily prohibited discrimination in each and every 
instance, regardless of whether there are ready alternatives.

-
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.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu
SSRN: 
http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Jean Dudley [jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:07 PM
To: Law  Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision


On Aug 14, 2015, at 6:03 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

2.  The “single grocer in town” hypothetical may be relevant to the compelling 
government interest inquiry – maybe one could argue that the government has a 
compelling interest in making sure that everyone has access to food without 
having to drive to the next town, and therefore requiring the grocer to sell to 
the KKK sympathizers, or for that matter to sell food that he knows will be 
used at the KKK picnic.  But in the much more typical town in which there are 
many grocers, most of which are quite happy to sell to anyone who has the 
money, denying the exemption isn’t necessary to serve the government interest.

Is there legal precedence establishing this hypothetical into law?  It seems to 
me that it may apply to the county clerk who is refusing to issue any marriage 
licenses or allow any assistant to issue them and instead send couples to the 
next county.



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RE: The Remarkable Disappearance of State Justifications in Obergefell

[Berg, Thomas C.]

Marty refers to religious justifications upon which the civil state cannot 
rely. I am OK with this language if it's understood narrowly, but it has the 
potential to do mischief. It should mean that (1) religious justifications 
cannot serve as the only basis for legislation (which I think happens very 
seldom), and (2) that religious justifications (like many other justifications) 
cannot have sufficient status (as a shared basic civil norm or a compelling 
interest) to override fundamental or important rights on the other side.

Phrasing like Marty's above might--but should not--be read to encourage 
Establishment Clause challenges to laws where religious motivations and 
arguments play a significant role but there are other rationales too. Standards 
like was religion the prime motivator or rationale should be rejected, 
because they would wrongly place disabilities on religious views, and their 
proponents, in politics. Not only conservatives, but also liberals, have good 
reasons to oppose such a result.

Micah Schwartzman and I go back and forth on clarifying this issue in his U. 
Chicago piece, What If Religion Is Not Special?, and my response. (Andy 
Koppelman weighs in too; and maybe others?)
https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/03%20Schwartzman%20ART%20.pdf
https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Berg_Dialogue.pdf

-
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.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu
SSRN: 
http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, July 03, 2015 11:32 AM
To: Law  Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

I agree with Doug that the majority gave short shrift to the state’s reasons 
because they viewed them as ridiculous and that the dissenters [mostly] 
didn’t talk about them because they didn’t really believe them, either.  I 
also agree that at least three of the dissenters (not sure about the Chief) 
think that moral disapproval ought to be sufficient.  But to the extent Scalia 
and Thomas

However, to the extent Scalia and Thomas believed there was no right in the 
first place and [thus] nothing had to be justified, that'd be plainly 
mistaken, no?  Surely the state is required to satisfy at least rational basis 
review if it discriminates in offering access to this extraordinarily important 
civil institution.

On Fri, Jul 3, 2015 at 12:21 PM, Doug Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Friday, July 03, 2015 11:55 AM
To: Law  Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu
Subject: The Remarkable Disappearance of State Justifications in Obergefell

Some of you might find this of interest.  Reactions and critiques encouraged, 
as always.

http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html


The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman
Over at the Slate Breakfast Table, I have a 
posthttp://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html
 describing the handful of biggest surprises in what was in fact (or so I 
argue) a Supreme Court Term in which the Justices generally acted according to 
predictable form.

One of the most remarkable aspects of the Term, I argue there, is 

RE: Text of Indiana RFRA Fix; Video of Hearing

[Berg, Thomas C.]

 of identity. That is a 
reason for protecting them; it is obviously not an operational test.

I would protect the religious organizations themselves.

I would exempt marriage counselors; it is in no one’s interest to force them to 
counsel couples whose relationship they think is fundamentally wrong.

I would exempt very small businesses in the wedding industry, where the owner 
has to be personally involved in providing the services, if similar services 
are readily available elsewhere. Weddings are special because the religious 
side understands them as inherently religious events, creating a religious 
relationship – even if the couple is secular and thinking only of civil 
marriage. And all those who assist with a wedding are expected to help make it 
the best and most memorable wedding it can be; they are promoting this 
religious ceremony that some believe to be religiously prohibited.

I would not exempt beyond that. And so far, no one has won even that under a 
RFRA standard — not in a single case.

I have been inundated this week and gotten almost nothing else done; I will 
have very little to say as this very interesting discussion continues.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Thursday, April 02, 2015 3:00 PM
To: Law  Religion issues for Law Academics
Subject: Re: Text of Indiana RFRA Fix; Video of Hearing

I agree with Doug that this academic discussion is and will be overtaken by 
much more powerful political and social forces.  Even so, I'm curious about how 
he and other would draw the lines he's proposing.  What are those few cases 
where religious exemptions make sense?  Only cases that somehow implicate 
matters going to the core of [the vendors'] identity?  Would that be the 
test?  (presumably not, since I can't imagine Doug wanting judges to adjudicate 
what's a religious core).  Only discrimination on the basis of sexual 
orientation, but not other prohibited grounds?  (If so, why?)  Only cases 
raising the sorts of free speech claims that others have been discussing?

If one moves from the generalities of a RFRA-ish test, and if one does not 
draft the exemption along some sort of institutional line (e.g., nonprofits 
with some sort of described religious character), it turns out to be awfully 
difficult for any of us, let alone a consensus of legislators, to describe the 
specific cases that should and should not be exempted, beyond the exemptions 
that everyone approves, such as ministers' involvement in religious ceremonies.

On Thu, Apr 2, 2015 at 2:40 PM, Doug Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Things are moving much too fast in Indiana for a group of sixteen to take any 
position on the fix. And heavy duty political forces are now in play on both 
sides that render academic information pretty much irrelevant.

I agree with Tom that a far better fix would be a strong gay-rights law with 
religious exemptions. Those could be provided under a state RFRA, or better 
yet, specifically negotiated to cover only those few cases where religious 
exemptions make sense. Then we wouldn’t have to argue about whether the general 
language of a RFRA might some day be interpreted to create an exemption that 
went too far. The Utah law is a step in the right direction, but it doesn’t 
cover all the ground.

But we apparently can’t negotiate that deal, because the two sides are too far 
apart, too polarized, and too mistrustful. Much of the conservative religious 
community doesn’t want any gay rights law at all, and they apparently can’t 
enact one in Indiana. And much of the gay rights community increasingly appears 
to oppose any exemption of any kind, except for the clergy officiating at the 
wedding. If the two sides would acknowledge that folks on the other side 
deserve liberty with respect to matters going to the core of their identity, 
solutions would be possible. But that prerequisite appears to be missing.



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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Berg, Thomas C.
Sent: Thursday, April 02, 2015 1:11 PM
To: Law  Religion issues for Law Academics
Subject: RE: Text of Indiana RFRA Fix; Video of Hearing

The fix preserves the ability of nonprofit religious institutions to have their 
claims heard under the state RFRA, which in my view is correct. Of course that 
will not be a stable resolution in blue states now

RE: Text of Indiana RFRA Fix; Video of Hearing

[Berg, Thomas C.]

Jim, this is helpful and clarifying, thanks.

-
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.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu
SSRN: 
http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Thursday, April 02, 2015 6:18 PM
To: Law  Religion issues for Law Academics
Subject: Re: Text of Indiana RFRA Fix; Video of Hearing

Tom,

Again, I can't speak for others, but I think I was pretty clear in my message 
below that I was only talking about the for-profit-commercial context when I 
suggested using the race example as a tool for distinguishing between 
businesses that should be covered by state public accommodations laws and 
businesses that should not (central concern ... for-profit commercial realm 
... commercial businesses ... bakery). But in case not, let me be explicit: I 
was only making an argument about regulation in the for-profit-commercial realm.

American law has traditionally treated the nonprofit-religious-organization 
context very differently than the for-profit-commercial context, and it has 
allowed many more exemptions in the former context than the latter. If a given 
federal or state law allows nonprofit religious organizations to discriminate 
on all typically proscribed grounds except race, I could see an argument that 
sexual-orientation discrimination should be treated like sex discrimination and 
religious discrimination and allowed rather than race discrimination and 
disallowed. I would be troubled, however, if exemptions were adopted to allow 
discrimination in the nonprofit realm uniquely on the basis of 
sexual-orientation (e.g., nonprofit wedding venue can't discriminate against 
interfaith couple or couple including a divorced person, but can discriminate 
against a same-sex couple). And when it comes to the for-profit commercial 
context, where I do not believe there is any tradition of federal and state 
public accommodations laws making exemptions that allow businesses to 
discriminate on all typically proscribed grounds except race, it seems to me 
that the race example can be a helpful tool for identifying the proper scope of 
the public accommodations laws when libertarian arguments are made for limiting 
their scope.

- Jim


On Thu, Apr 2, 2015 at 2:35 PM, Berg, Thomas C. 
tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote:
Well, those list members, and activist groups, who wanted civil-rights claims 
excluded altogether want religious nonprofits not to be able to bring them 
either.  And if the test is where we would allow discrimination based on 
race, religious nonprofits have almost never been exempted from race 
discrimination laws, except with respect to churches and ministers.  So 
treating sexual-orientation claims exactly the same would mean a huge number of 
religious exemptions in existing state laws should be eliminated, and a vast 
number of actions brought against nonprofit institutions such as colleges and 
schools--evangelical, Catholic, Orthodox Jewish, Muslim, etc.--who should also 
lose their tax exemptions.

The NCAA and other business critics are happy with the Indiana fix, and that 
may indicate that the for-profit/non-profit line appeals to a lot of people who 
generally want to respect both gay rights and religious liberty.  But the wave 
that worked against the Indiana law won't stop at that line.

-
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 4918tel:651%20962%204918
Fax: 651 962 4881tel:651%20962%204881
E-mail: 
tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu
SSRN: 
http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564
Weblog: http://www.mirrorofjustice.blogs.com


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

RE: Text of Indiana RFRA Fix; Video of Hearing

[Berg, Thomas C.]

The fix preserves the ability of nonprofit religious institutions to have their 
claims heard under the state RFRA, which in my view is correct. Of course that 
will not be a stable resolution in blue states now, and many on the list would 
oppose allowing those claims to be raised.

In my view, the best fix would have been to provide statewide 
anti-discrimination protection based on sexual orientation, and let claims 
continue to be raised under the state RFRA. That would do far more for same-sex 
couples, especially in rural areas where they face the most prejudice, than 
this does. And as we predicted in our original letter, the only commercial 
claims with even a possibility of being granted would be the small wedding 
vendors (and those would be doubtful). But I gather Republicans did not support 
expanding the anti-discrimination law, and I assume Democrats wouldn’t have 
taken the deal either. The focus has been on the state RFRA even though, as to 
commercial discrimination cases, its effect is largely symbolic.

This episode could work to hamper the strategy of addressing this conflict 
through exemptions from anti-discrimination laws. But that’s not going to do 
much to get anti-discrimination laws passed in red states in the first place.

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author=261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, April 02, 2015 10:31 AM
To: Law  Religion issues for Law Academics
Subject: Re: Text of Indiana RFRA Fix; Video of Hearing

After lots of testimony in favor of the fix by members of the business 
community, Advance America's Eric Miller made the case against the fix at 
length, repeatedly citing the letter signed by 16 law professors in favor of 
the Indiana RFRA.
I'm guessing that, while many of those law professors think the fix is 
unnecessary, some of them might not join Miller in actively opposing the fix. 
Miller has championed RFRA for the very specific reason that he believes it 
would provide clear protection to businesses that refuse to provide 
marriage-related services to same-sex couples, but the law-professor letter he 
invokes does not portray that protection as clearly forthcoming under RFRA 
(But whatever one thinks of the arguments for and against exempting such 
individuals, it is not at all clear that the proposed Indiana RFRA would lead 
courts to recognize such an exemption [E]ven had the New Mexico RFRA 
applied [to the claim in Elane Photography], the New Mexico Supreme Court ... 
would likely have held that enforcement of the anti-discrimination laws served 
a compelling interest by the least restrictive means.).
As some of the professors who supported the original Indiana RFRA are list 
participants, I'm wondering if they think my perception is correct. Are any 
planning to actively support or oppose the fix?
We also have list participants who signed a letter opposing the original 
Indiana RFRA, and it would be interesting to hear from them whether they plan 
to actively support or oppose the fix.

- Jim

On Thu, Apr 2, 2015 at 7:33 AM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:
The text of the fix is here:
http://t.co/58d1K81D1L
It provides that the RFRA does not:
(1) authorize a provider to refuse to offer or provide services, facilities, 
use of public accommodations, goods, employment, or housing to any member or 
members of the general public on the basis of race, color, religion, ancestry, 
age, national origin, disability, sex, sexual orientation, gender identity, or 
United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal 
by a provider to offer or provide services, facilities, use of public 
accommodations, goods, employment, or housing to any member or members of the 
general public on the basis of race, color, religion, ancestry, age, national 
origin, disability, sex, sexual orientation, gender identity, or United States 
military service”

The measure exempts tax-exempt churches, non profit religious organizations and 
societies, including church affiliated schools, as well as ministers of 
churches or nonprofit religious organizations.
The hearing on the fix is streaming live here:
 http://iga.in.gov/legislative/2015/session/senate_video_archive/




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To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, 

RE: Homeschooling, vaccinations, and Yoder

[Berg, Thomas C.]

Neal Devins's article in the George Washington Law Review (1992 I think) 
documents this dynamic: home-schoolers losing in court after Yoder but then 
prevailing in legislature and agencies.

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author=261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Monday, February 02, 2015 8:31 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Homeschooling, vaccinations, and Yoder

This is impressionistic and not based on a systematic survey, but home 
schoolers lost most of their cases challenging restrictions on home schooling. 
For better or worse, courts said Yoder was only about the Amish. Home schoolers 
won their battle in most states politically, through the legislature or through 
continued pressure on the relevant state agencies.

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.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 02, 2015 1:00 AM
To: Law  Religion issues for Law Academics
Subject: Homeschooling, vaccinations, and Yoder

   I agree that homeschooling is a possible constraint on the 
effectiveness of schooling-based immunization, though given the burdens of 
homeschooling, I'm not sure how many people's homeschooling choices are going 
to be driven primarily by vaccination preferences.

   But can you elaborate, please, on Yoder leading to unregulated 
home schooling?  As I read Yoder, it authorized an exemption from schooling - 
with no requirement for further study, no requirement of passing various tests, 
etc. -for ages 14 and up, and pretty strongly suggested that no exemption from 
schooling would be available for materially younger children.  Most 
homeschoolers, especially those who homeschool in the prime vaccination years, 
wouldn't really get the benefit of Yoder as such.

More broadly, I don't think there's much in Yoder that suggests that any 
exemption regime has to be virtually unregulated.  And 
http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and 
http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the big 
surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well after 
Yoder.  It certainly may be the case that there is such a strong causal link, 
but I'd just like to hear a little more about it.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Sunday, February 01, 2015 9:27 PM
To: d...@crab.rutgers.edumailto:d...@crab.rutgers.edu; Law  Religion issues 
for Law Academics
Subject: RE: Vaccine objectors


one thought on Marty's point 1.  The number of children being home schooled is 
huge.  If the vehicle for requiring immunization is schooling then many people 
will avoid the mandate by opting out of schools.  Virtually unregulated home 
schooling is one of the consequences of Yoder.



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

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

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com/
*

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane 
[d...@crab.rutgers.edu]
Sent: Sunday, February 01, 2015 11:15 PM
To: Law  Religion issues for Law Academics
Subject: Re: Vaccine objectors

Marty,

I agree with # 1, except in states that might have a particularly robust state 
free exercise doctrine.

I also agree with # 2.

The issue with respect to # 3, though, is this:  What if it turns out that an 
exemption regime limited to actual religious objections (and not personal 
ones) did not produce serious third-party burdens because the number of kids 
left unvaccinated would not be enough to compromise herd immunity?

Such a regime would, I believe, be constitutional.  But it does raise at least 
a question for folks 

RE: Holt

[Berg, Thomas C.]

And congratulations also to the Becket Fund lawyers on the case, especially 
Eric Rassbach and Luke Goodrich, who participate on this list and who defend 
free exercise of religion across a wide range of cases.

-
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.edumailto:tcb...@stthomas.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 Marty Lederman [lederman.ma...@gmail.com]
Sent: Tuesday, January 20, 2015 9:10 AM
To: Law  Religion issues for Law Academics
Subject: Holt

Congrats to Doug!

http://www.supremecourt.gov/opinions/14pdf/13-6827_5h26.pdf
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Holt v. Hobbs Oral Argument

[Berg, Thomas C.]

The oral argument transcript is up, 
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
  I haven't read it yet, but from the SCOTUS Blog report, it looks like things 
went poorly for the state.  
http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/

We've had little discussion of this case on the list.  I've presumed that's 
because there is a wide consensus that the case is easy.  SCOTUS Blog likewise 
concludes that [t]he case, at least from the tenor of the oral argument, did 
not seem to be a difficult one.  But assuming that Holt wins, there remains 
the important question of the precise language the Court will use to explicate 
the compelling interest standard in the prison context, where officials get 
some deference.

-
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.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Holt v. Hobbs Oral Argument

[Berg, Thomas C.]

Sorry, looks like my first link swept up a period into the link. I tested this 
and it worked:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf

-
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.edumailto:tcb...@stthomas.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 Berg, Thomas C.
Sent: Tuesday, October 07, 2014 2:59 PM
To: Law  Religion issues for Law Academics
Subject: Holt v. Hobbs Oral Argument

The oral argument transcript is up, 
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
  I haven't read it yet, but from the SCOTUS Blog report, it looks like things 
went poorly for the state.  
http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/

We've had little discussion of this case on the list.  I've presumed that's 
because there is a wide consensus that the case is easy.  SCOTUS Blog likewise 
concludes that [t]he case, at least from the tenor of the oral argument, did 
not seem to be a difficult one.  But assuming that Holt wins, there remains 
the important question of the precise language the Court will use to explicate 
the compelling interest standard in the prison context, where officials get 
some deference.

-
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.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


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

RE: Administration to ‘Augment’ ACA Contraceptive Rules

[Berg, Thomas C.]

The two proposals from HHS are out now:

http://www.ofr.gov/OFRUpload/OFRData/2014-20252_PI.pdf (interim final rules 
allowing non-profits to notify HHS to claim the accommodation)
http://www.ofr.gov/OFRUpload/OFRData/2014-20254_PI.pdf (proposal to expand the 
accommodation to closely held for-profits)

-
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.edumailto:tcb...@stthomas.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 Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, August 15, 2014 11:05 AM
To: Law  Religion issues for Law Academics
Subject: Re: Administration to ‘Augment’ ACA Contraceptive Rules

I blogged about it here:

http://balkin.blogspot.com/2014/07/confirmation-that-supreme-courts.html

DOJ has now told the 10th Circuit that the new reg will be issued no later than 
a week from today (Aug. 22).


On Fri, Aug 15, 2014 at 11:54 AM, Conkle, Daniel O. 
con...@indiana.edumailto:con...@indiana.edu wrote:
This is old news, but I hadn’t seen it and so pass it along in case others 
missed it as well.

Administration to ‘Augment’ ACA Contraceptive Rules

July 24 — The Obama administration intends to issue interim final rules within 
a month regarding the “accommodations” granted to religious nonprofit 
organizations that object to providing contraceptive coverage under the 
Affordable Care Act, according to a government 
briefhttp://www.bloomberglaw.com/public/document/Little_Sisters_of_the_Poor_et_al_v_Burwell_et_al_Docket_No_130154
 filed July 22 (Little Sisters of the Poor v. Burwell, 10th Cir., No. 13-1540, 
brief filed 7/22/14).

. . . . .

“The Wheaton College injunction does not reflect a final Supreme Court 
determination that RFRA requires the government to apply the accommodations in 
this manner,” the July 22 DOJ brief said. “Nevertheless, the Departments 
responsible for implementing the accommodations have informed us that they have 
determined to augment the regulatory accommodation process in light of the 
Wheaton College injunction and that they plan to issue interim final rules 
within a month. . . .”
“The administration believes the accommodation is legally sound, but in light 
of the Supreme Court order regarding Wheaton College, the departments intend to 
augment their regulations to provide an alternative way for objecting 
non-profit religious organizations to provide notification, while ensuring that 
enrollees in plans of such organizations receive separate coverage of 
contraceptive services without cost sharing,” a senior administration official 
told reporters in a briefing July 22. The official spoke on condition of 
anonymity.


Bloomberg BNA, U.S. Law Week (subscription required)

http://news.bna.com/lwln/LWLNWB/split_display.adp?fedfid=50879221vname=lw1notallissuesfcn=56wsn=49832fn=50879221split=0


Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331tel:%28812%29%20855-4331
fax (812) 855-0555tel:%28812%29%20855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu



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RE: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?

[Berg, Thomas C.]

Marty, on your two questions:

1. I don't think the Court said that pre-Smith doctrine is inapposite to 
RFRA.  Indeed, it looked at a lot of pre-Smith free exercise law; and on the 
particular question whether a for-profit corporation has ability to assert free 
exercise claims at the threshold, it found indications in the Crown Heights 
Kosher Supermarket case (1961) that they do.  Slip op. at 26-27 (referring to 
the fact that not one justice in that case adopted the state's argument that a 
for-profit corporation has no standing to assert a free exercise claim).  The 
Court here simply said, correctly, that [e]ven if RFRA was meant to restore 
the status quo ante, there is no reason to believe, as HHS and the dissent seem 
to suggest, that the law was meant to be limited to situations that fall 
squarely within the holdings of pre-Smith cases.

The Court's approach seems to me justified for at least three reasons.
   (a) There was no pre-Smith decision, certainly not in the SCOTUS, rejecting 
for-profit corporations' standing either; it was an open question, on which 
both sides used statutory-purpose arguments as well as case law.
   (b) The legislative history makes clear that the statute does not codif[y] 
the result reached in any prior free exercise decision, only the legal 
standard that was applied in those decisions.  Whatever the line is between 
principles and results, the two don't collapse, and it's the former that govern.
   (c) Finally, as several of us have argued since the statute passed, the 
stated textual purpose is to restore the compelling interest test as set forth 
in Sherbert and Yoder, not as in every pre-Smith decision, especially those in 
lower courts--so if a line of reasoning from such a pre-Smith decision is 
inconsistent with the logic of Sherbert and Yoder, it is probably not warranted 
under the statute.  I take Sherbert and Yoder to have given serious but not 
automatic protection.  That formulation is quite general, I admit, but I think 
it points toward something more than just whatever courts said in any 
exemption case pre-Smith.

2. On least restrictive means, I was quoted by Justice Ginsburg in Hobby 
Lobby (dissent at 12), along with Doug Laycock, for the proposition that the 
concept appeared in pre-Smith law.  (If those are gotcha quotes, I take them 
as a compliment: As long as you spell my name right...).  On this point, I 
believe (still) that the dissent is correct and that the majority was wrong 
both here and in Boerne.  Sherbert clearly referred to no alternative means of 
regulation, Yoder to interests ... not otherwise served.  I just don't think 
that the pre-Smith applications in any way foreclosed what the Court did here, 
which was to apply the least restrictive means phrase pretty carefully--and 
ultimately cautiously--in the commercial context.  The non-profit accommodation 
seemed to be readily available as an alternative means, and Kennedy 
particularly emphasized it.  It will end up as the alternative means in some 
modified form/procedure, I think, after the non-profit challenges play out, for 
some of the reasons you and Tom Goldstein have been discussing.  I don't think 
it is necessary to have a highly severe least restrictive means standard to 
justify the result in Hobby Lobby.

I think that least restrictive means will apply with different degrees of 
severity in different contexts.  That's basically what it's done in the 20 
years of RFRA; and in end Hobby Lobby (factoring in Kennedy's opinion) read it 
fairly cautiously in the commercial context.  Yes, that's a good idea.

Many people who are unhappy that least restrictive means put any constraint 
on the government here will be happy in the upcoming case when it constrains 
the Arkansas prison that refuses to let a Muslim prisoner grow a half-inch 
beard.  Prisons can always claim a compelling interest in safety; often the 
least-restrictive-means test is the crucial part forcing them to show some 
connection between safety (or other interests like cost) and the restriction 
they're imposing.

Tom

-
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.edumailto:tcb...@stthomas.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 Marty Lederman [lederman.ma...@gmail.com]
Sent: Sunday, July 06, 2014 3:36 PM
To: Law  Religion issues for Law Academics
Subject: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?

My thoughts on the longer-term ramifications of the decision.  The upshot is 
that I think it's very important in two 

RE: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?

[Berg, Thomas C.]

 case in which an 
exemption for an employer will not harm others.  But instead, both at oral 
argument and in the opinion, the Justices said:  Who cares about Lee?  It was 
a free exercise case and did not apply a LRM test.

You are also correct that Alito does selectively invoke pre-Smith precedents.  
That's my point:  The precedents that are strongly pro-exemption (not only 
Thomas but even Gallagher, hardly part of the canon!) still have generative 
force for him . . . but not the long series of cases in which claims to 
exemptions in the commercial sphere got almost no votes, for decades.


On Sun, Jul 6, 2014 at 6:27 PM, Berg, Thomas C. 
tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote:
Marty, on your two questions:

1. I don't think the Court said that pre-Smith doctrine is inapposite to 
RFRA.  Indeed, it looked at a lot of pre-Smith free exercise law; and on the 
particular question whether a for-profit corporation has ability to assert free 
exercise claims at the threshold, it found indications in the Crown Heights 
Kosher Supermarket case (1961) that they do.  Slip op. at 26-27 (referring to 
the fact that not one justice in that case adopted the state's argument that a 
for-profit corporation has no standing to assert a free exercise claim).  The 
Court here simply said, correctly, that [e]ven if RFRA was meant to restore 
the status quo ante, there is no reason to believe, as HHS and the dissent seem 
to suggest, that the law was meant to be limited to situations that fall 
squarely within the holdings of pre-Smith cases.

The Court's approach seems to me justified for at least three reasons.
   (a) There was no pre-Smith decision, certainly not in the SCOTUS, rejecting 
for-profit corporations' standing either; it was an open question, on which 
both sides used statutory-purpose arguments as well as case law.
   (b) The legislative history makes clear that the statute does not codif[y] 
the result reached in any prior free exercise decision, only the legal 
standard that was applied in those decisions.  Whatever the line is between 
principles and results, the two don't collapse, and it's the former that govern.
   (c) Finally, as several of us have argued since the statute passed, the 
stated textual purpose is to restore the compelling interest test as set forth 
in Sherbert and Yoder, not as in every pre-Smith decision, especially those in 
lower courts--so if a line of reasoning from such a pre-Smith decision is 
inconsistent with the logic of Sherbert and Yoder, it is probably not warranted 
under the statute.  I take Sherbert and Yoder to have given serious but not 
automatic protection.  That formulation is quite general, I admit, but I think 
it points toward something more than just whatever courts said in any 
exemption case pre-Smith.

2. On least restrictive means, I was quoted by Justice Ginsburg in Hobby 
Lobby (dissent at 12), along with Doug Laycock, for the proposition that the 
concept appeared in pre-Smith law.  (If those are gotcha quotes, I take them 
as a compliment: As long as you spell my name right...).  On this point, I 
believe (still) that the dissent is correct and that the majority was wrong 
both here and in Boerne.  Sherbert clearly referred to no alternative means of 
regulation, Yoder to interests ... not otherwise served.  I just don't think 
that the pre-Smith applications in any way foreclosed what the Court did here, 
which was to apply the least restrictive means phrase pretty carefully--and 
ultimately cautiously--in the commercial context.  The non-profit accommodation 
seemed to be readily available as an alternative means, and Kennedy 
particularly emphasized it.  It will end up as the alternative means in some 
modified form/procedure, I think, after the non-profit challenges play out, for 
some of the reasons you and Tom Goldstein have been discussing.  I don't think 
it is necessary to have a highly severe least restrictive means standard to 
justify the result in Hobby Lobby.

I think that least restrictive means will apply with different degrees of 
severity in different contexts.  That's basically what it's done in the 20 
years of RFRA; and in end Hobby Lobby (factoring in Kennedy's opinion) read it 
fairly cautiously in the commercial context.  Yes, that's a good idea.

Many people who are unhappy that least restrictive means put any constraint 
on the government here will be happy in the upcoming case when it constrains 
the Arkansas prison that refuses to let a Muslim prisoner grow a half-inch 
beard.  Prisons can always claim a compelling interest in safety; often the 
least-restrictive-means test is the crucial part forcing them to show some 
connection between safety (or other interests like cost) and the restriction 
they're imposing.

Tom

-
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

RE: Attenuation

[Berg, Thomas C.]

And in the standard complicity-with-evil analyses, including religious ones, 
the degree of connection that's permissible is affected by the perceived 
gravity of the harm, which as Marty notes is a religious determination.  
Gravity of the harm, for example, is part of the material cooperation 
analysis in Catholic thought, which essentially involves a proportionality 
test.  So even the reasoning this degree of connection is too much is a 
product, in part, of the religious determination.  I think if people shared the 
Greens' belief that the emergency contraceptives kill a human person, they'd be 
more sympathetic to the claim.

-
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.edumailto:tcb...@stthomas.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 Perry Dane [d...@crab.rutgers.edu]
Sent: Wednesday, July 02, 2014 10:20 AM
To: Marty Lederman
Cc: Law  Religion issues for Law Academics
Subject: Re: Attenuation


Marty,

I would define religious reasoning as reasoning within a religious discourse or 
tradition used by religious people to reach religiously-significant 
conclusions.  Religious reasoning need not be metaphysical or transcendent or 
explicitly spiritual.  And it can certainly resemble analogous secular 
discourse.  But it is still distinct.

Three observations:

1. Look again at my Jewish separate-plates example.  Rabbinic discussions of 
these sorts of questions rarely involve discussions about whether God exists, 
whether there's a heaven or a hell, whether God commands a particular thing, or 
whether and when an embryo has a 'soul' or is a 'human life.'  So I return to 
my question:  Should the prison authorities be heard to argue that the 
connection between the underlying rule against mixing dairy and meat and the 
subsidiary conclusion that those foods must be eaten on separate plates is just 
too attenuated?

2. It's a staple of first-year torts that reasoning about proximate cause is 
inextricably intertwined with various policy and other concerns.  And even if 
we disagree with that, and adopt Ernie Weinrib's view that proximate cause 
reasoning is built into the structure of tort law, that would still suggest 
that it is embedded in a specific, constrained, discourse that follows certain 
rules and makes certain very deep assumptions peculiar to that discourse.  That 
would suggest that there exist a whole bunch of constrained discourses about 
notions of causation, responsibility, and the like.  Each of those constrained 
discourses is, explicitly or implicitly, grounded in certain assumptions and 
world-views.  For example, in Peter Singer's thoroughgoing utilitarian 
discoursehttp://www.utilitarianism.net/singer/by/1972.htm, each of us has 
a direct affirmative responsibility to try to alleviate famines and other forms 
of suffering around the world, since  if it is in our power to prevent 
something bad from happening, without thereby sacrificing anything of 
comparable moral importance, we ought, morally, to do it.  That is certainly a 
more radical view than that taken by tort law, or by more deontological moral 
discourses, or even by Hobby Lobby.

Now, in the light of all that, it seems to me quite reasonable to assume that 
Hobby Lobby is (however inarticulately) reaching its conclusions about 
causation and responsibility based on forms of reasoning or instinct embedded 
in its own religious assumptions and priorities, though loosely analogous, of 
course, to other forms of reasoning about causation and responsibility.

3. Note that in the Establishment Clause context, we're (usually rightly, I 
think) quite willing to describe certain propositions (such as creation 
science) as religious even though their proponents claim they are not and in 
fact carefully try to exclude all mention of whether God exists, whether 
there's a heaven or a hell, whether God commands a particular thing, or whether 
and when an embryo has a 'soul' or is a 'human life.'

On 07/02/2014 10:32 am, Marty Lederman wrote:

Perry:  I think this is a very important, and contestable, assumption:  Hobby 
Lobby is using religious reasoning, not secular reasoning [in determining what 
sort of connection constitutes prohibited complicity].  What is the basis for 
that assumption?  In fact, virtually all theological analysis I've ever seen 
about questions of complicity does not consist of what we would ordinarily call 
religious reasoning -- such as whether God exists, whether there's a heaven 
or a hell, whether God commands a particular thing, or 

RE: Divisiveness

[Berg, Thomas C.]

We've been over this before, of course, but as long as we're filling out the 
facts ... they are required to pay a $2,000-per-employee assessment if they 
drop health insurance, on top of being forced to choose an option that would 
either cause them significant competitive disadvantage or necessitate their 
raising wages. Even if we regard the wage increases and insurance premiums as a 
wash, the $2000/employee assessment is surely a government dissuasion.

In response to Art's question, I'm assuming the IRS ruling simply means the 
employer cannot make up for dropping health insurance with tax-free payments to 
employees, but rather must increase taxable wages. That dramatizes why, in 
practical terms, increasing wages enough to offset the tax consequences may be 
a burdensome option indeed. But quite apart from that, it seems to me clear 
that the $2,000/employee assessment is a substantial burden (even denominated 
as a tax, it can affect and be designed to affect behavior, as NFIB v. Sebelius 
recognizes).

-
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.edumailto:tcb...@stthomas.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 Arthur Spitzer [artspit...@gmail.com]
Sent: Tuesday, June 10, 2014 12:33 PM
To: Law  Religion issues for Law Academics
Subject: Re: Divisiveness

Marty-

Like you, I had thought that the law doesn't require HL to offer an employee 
health insurance plan at all, and that that was an escape hatch from its 
claimed religious problem. But from a recent news article it looks like 
employers no longer have that option, as a realistic matter:

http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0

WASHINGTON — Many employers had thought they could shift health costs to the 
government by sending their employees to a health insurance exchange with a 
tax-free contribution of cash to help pay premiums, but the Obama 
administration has squelched the idea in a new ruling. Such arrangements do not 
satisfy the health care 
lawhttp://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier,
 the administration said, and employers may be subject to a tax penalty of $100 
a day — or $36,500 a year — for each employee who goes into the individual 
marketplace.

The ruling this month, by the Internal Revenue 
Servicehttp://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org,
 blocks any wholesale move by employers to dump employees into the exchanges.

Am I missing something?

Art Spitzer



Warning: this message is subject to monitoring by the NSA.



On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
I agree with Mark's correction that the complaint of the Greens is not that 
their employees' use of contraceptive burdens their religion.

But it's also not that they have to buy insurance that specifically covers the 
drugs.  For thing, the law doesn't require HL to offer an employee health 
insurance plan at all.  For another, the Greens aren't shareholders, and 
therefore aren't buying anything.  Hobby Lobby, Inc. --as opposed to the 
Greens-- is contracting for an insurance plan -- but of course that plan is not 
made available to their employees gratis; it is a part of their compensation 
package, provided in exchange for their labor, just like wages.

The nature of the way in which the Greens are alleged to be required to act in 
violation of any religious obligations, therefore, is not at all obvious.


On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
Jon,

I think you don't understand, or are ignoring, the point of view of the Hobby 
Lobby parties. They don't object to employees buying what the Hobby Lobby 
parties consider to be abortifacient drugs. I don't think they monitor what 
their employees do with wages or would take any action against employees who 
buy or use such drugs. They object to being required themselves to take an 
action specifically related to abortion -- buying insurance that specifically 
covers the drugs. You might object to buying a gun for an employee, even though 
the recipient would be the one who uses it. You might, if you were a pacifist, 
object to being drafted to serve as an army medic or supply clerk, even though 
you would not be killing anyone but merely be 

RE: Hobby Lobby/Ellen Katz

[Berg, Thomas C.]

Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more 
divisive than an interpretation against?

And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's 
conflicting signals at oral argument, I suspect that if he has voted for Hobby 
Lobby--which I assume is necessary for Hobby Lobby to win--he might well be 
trying to craft his opinion narrowly. (Not that he always succeeds in making 
the confines of his opinions clear.)

-
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
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 Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 3:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I 
regret ever more every day that Rehnquist did not assign the opinion to 
O'Connor, whose opinion at the time at detested because of what I thought was 
her lassitude on what counted as a compelling interest, but that is small beer 
indeed compared to the fact that had she been writing for the Court, the 
(perhaps fiction of) the compelling interest test would have been maintained 
even as it became ever more clear that compelling was not to be interpreted 
with inordinate strictness.  Instead, it is possible that we will get, courtesy 
of Justice Scalia and four allies, a remarkably wooden and divisive 
interpretation of RFRA that will have at least some of the consequences that 
Jon predicts.  Perhaps they will split the baby, a la Bakker, and decide, as I 
think is Doug's position, that Hobby Lobby is entitled to be heard on its 
claim, but that it fails becauses there is in fact what they will accept a!
 s a compelling interest' in favor of the contraception aspect of the mandate.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
Sent: Sunday, June 08, 2014 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Hobby Lobby/Ellen Katz

Eugene,

 I agree that it would [not] be proper for him to take a different
 approach because he wants people to take a more nuanced view of him
 or because he wants to convic[e] people that the Supreme Court
 deserves respect.

 Judges must make decisions based on their best judgment without regard to 
whether people would like them.  It is for law professors, lawyers and others 
to evaluate decisions.  I do think there is an obligation for legally trained 
people to defend as well as criticize the Supreme Court and I believe that 
given the partisanship that may tear our country apart, the time to do so is 
now. I also do not believe Justices must stick to the views they had before 
they were appointed.
They need to reevaluate those views in the light of changed circumstances and 
the broader perspective from the view from the highest court.

 Thus, I just hope he sees the problem as he did in Smith and weighs that 
against a statute that, if interpreted broadly, would go against the policy of 
the free speech clauses: to let people of many different views to live together 
in harmony.  The application of strict scrutiny to protect all religious views 
would be extremely disruptive.

  I believe based on arguments Marci makes that RFRA is unconstitutional, 
but despite her brief, I do not think that that is at issue in Hobby Lobby.

Jon







On 2014-06-08 12:58, Volokh, Eugene wrote:
 I'm still not sure I understand.  Let's say Justice Scalia thinks --
 as seems quite plausible -- that the Free Exercise Clause is best
 interpreted as not securing religious exemptions.  And let's say that
 he also thinks, as is also quite possible, that (1) there's no
 constitutional bar to Congress's providing by statute what the Free
 Exercise Clause does not itself provide, (2) it's not for secular
 courts to second-guess claimants' sincere claims that the law violates
 their religious beliefs, based on a judgment that those beliefs are
 based on too tenuous causal connections, and (3) the proposed
 exemption doesn't interfere with the rights and freedoms of others.
 I
 can't really see how it would be proper for him to take a different
 approach because he wants people to take a more nuanced view of him
 or because he wants to convic[e] people that the Supreme Court
 deserves respect.

   Now of course if there's a sound substantive argument for why, for
 instance, RFRA is 

RE: Hobby Lobby/Ellen Katz

[Berg, Thomas C.]

I get those arguments, but they don't really seem to rest on a ruling for Hobby 
Lobby being divisive--they rest on it being (assertedly) substantively wrong. 
One could just as easily charge the Obama administration with being divisive 
(undermining harmony, to use Jon's term) by adopting the mandate in the first 
place. (See Rick Garnett's piece on why arguments about divisiveness should do 
only very limited work in religion cases.) 

On the substance, I too am not a fan of some Roberts Court rulings for 
employers (e.g. Ledbetter). But it seems to me there are possible rulings for 
Hobby Lobby that would not affect employees greatly--for example, the 
possibility, explored at oral argument, of extending to for-profit employers 
the same insurer-pays accommodation that now covers religious nonprofits.

-
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
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 Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 5:58 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

The answer to Tom's question is not only that it creates an incentive for 
strategic misrepresentations (which I don't regard as dispositive, because that 
arises in all religious exemption claims, including conscientious objection), 
but also, and far more seriously, that it would be yet one more grant by this 
ultra conservative Court of power to management at the cost of their employees 
(who are increasingly viewed by this Court as having only such rights as 
management chooses to respect).  I'm quite willing to support the right of the 
isolated baker or florist to refuse to bake a wedding cake or supply flowers 
because that has very few externalities (other, of course, than the stigma 
visited on the same sex would-be customers, but I agree with Doug that that is 
the price we pay for recognizing the rights of people we might regard as 
personally unattractive--I speak as someone who defended the right of the Ku 
Klux Klan to march down Congress Avenue in Austin).

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 4:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more 
divisive than an interpretation against?

And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's 
conflicting signals at oral argument, I suspect that if he has voted for Hobby 
Lobby--which I assume is necessary for Hobby Lobby to win--he might well be 
trying to craft his opinion narrowly. (Not that he always succeeds in making 
the confines of his opinions clear.)

-
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
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 Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 3:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I 
regret ever more every day that Rehnquist did not assign the opinion to 
O'Connor, whose opinion at the time at detested because of what I thought was 
her lassitude on what counted as a compelling interest, but that is small beer 
indeed compared to the fact that had she been writing for the Court, the 
(perhaps fiction of) the compelling interest test would have been maintained 
even as it became ever more clear that compelling was not to be interpreted 
with inordinate strictness.  Instead, it is possible that we will get, courtesy 
of Justice Scalia and four allies, a remarkably wooden and divisive 
interpretation of RFRA that will have at least some of the consequences that 
Jon predicts.  Perhaps they will split the baby, a la Bakker, and decide, as I 
think is Doug's position, that Hobby Lobby is entitled to be heard on its 
claim, but that it fails becauses there is in fact what they will accept

RE: Hobby Lobby/Ellen Katz

[Berg, Thomas C.]

Yes, the insurer-pays accommodation depends on contraception being less costly 
on net.  But since the administration has asserted that such is the case (in 
support of both the mandate itself and the accommodation), it seems to me the 
Court can and should proceed on that basis.  If the facts start turning out 
noticeably different, that might affect the whole politics of the issue (who 
knows?).

-
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
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 Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 6:39 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

I agree with Tom that divisiveness arguments are best shied away from.  This 
was a favorite of Brennan in the school funding cases, and I never understood 
why those who supported funding on the basis that they could not otherwise 
enjoy their presumptive constitutional right to send their children to 
religious schools (Pierce) weren't as upset with the Court as, presumably, 
secularists would have been by knowing that their tax dollars were going to 
religious schools.

The insurer pays accommodation depends, does it not, on the brute fact that 
contraception, when all is said and done, is less costly than pregnancy.  What 
if it were more costly?

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 6:34 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

I get those arguments, but they don't really seem to rest on a ruling for Hobby 
Lobby being divisive--they rest on it being (assertedly) substantively wrong. 
One could just as easily charge the Obama administration with being divisive 
(undermining harmony, to use Jon's term) by adopting the mandate in the first 
place. (See Rick Garnett's piece on why arguments about divisiveness should do 
only very limited work in religion cases.)

On the substance, I too am not a fan of some Roberts Court rulings for 
employers (e.g. Ledbetter). But it seems to me there are possible rulings for 
Hobby Lobby that would not affect employees greatly--for example, the 
possibility, explored at oral argument, of extending to for-profit employers 
the same insurer-pays accommodation that now covers religious nonprofits.

-
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
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 Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 5:58 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

The answer to Tom's question is not only that it creates an incentive for 
strategic misrepresentations (which I don't regard as dispositive, because that 
arises in all religious exemption claims, including conscientious objection), 
but also, and far more seriously, that it would be yet one more grant by this 
ultra conservative Court of power to management at the cost of their employees 
(who are increasingly viewed by this Court as having only such rights as 
management chooses to respect).  I'm quite willing to support the right of the 
isolated baker or florist to refuse to bake a wedding cake or supply flowers 
because that has very few externalities (other, of course, than the stigma 
visited on the same sex would-be customers, but I agree with Doug that that is 
the price we pay for recognizing the rights of people we might regard as 
personally unattractive--I speak as someone who defended the right of the Ku 
Klux Klan to march down Congress Avenue in Austin).

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 4:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more 
divisive than an interpretation against?

And would any ruling

RE: letter opposing Mississippi RFRA

[Berg, Thomas C.]

Mississippi does not have a law against sexual-orientation discrimination; if I 
understand the Lupu et al. letter correctly, the local resolutions in Oxford, 
Hattiesburg etc. are not laws.  Therefore, whatever the motivations of the 
proponents of the Mississippi state RFRA, it seems the statute won't make any 
difference in the area of gay rights and religious objections.  Isn't it more 
likely that a state RFRA in Mississippi would be used, say, by a mosque to 
protect itself from indifference or cloaked discrimination that might not be 
reachable under Employment Division v. Smith-or by other religious 
organizations to protect themselves from a variety of other non-tolerant things 
that officials in Mississippi have been known to do?  (This is not a case like 
Arizona, where a state RFRA already existed; and unless I'm mistaken, 
Mississippi's free exercise clause has not been interpreted yet on the question 
whether claims of substantial burdens on religious exercise deserve any 
heightened scrutiny.)

I want to emphasize that I, like the signers of the Lupu et al. letter (p. 4), 
would like to see a state like Mississippi adopt enforceable policy at the 
state and local level protecting gays and lesbians from discrimination.  I 
don't know if it ever has a chance of happening.  But one way to guarantee it 
won't happen is to suggest that there can be no exemptions from such laws in 
the statute itself or under a general religious-freedom act.  (Although the 
Lupu letter frequently refers to discrimination by for-profit businesses, it 
also speaks more generally of rejecting exemptions from civil rights laws, 
which could mean no exemptions for religious non-profit organizations either.  
I wonder whether the signers of the letter think, for example, that if a state 
law prohibits sexual-orientation discrimination in housing including 
educational housing, an evangelical or Orthodox Jewish college that provides 
married-student housing but excludes same-sex married couples cannot be 
exempted, because it's violating a statutorily-declared civil right?)

There are complexities in the way these battles play out politically.  Those of 
us who have argued for several years for exemptions accompanying same-sex 
marriage enactments in the blue states have done so with the feeling that in 
those states, with marriage equality enacted and with wide-ranging 
anti-discrimination laws, the objectors would become the minority needing 
protection.  So we've sought to protect religious organizations, as well as a 
few very small businesses directly tied to weddings or marriage support 
(marriage counseling etc.).  Of course, we ran into a lot of pushback, even as 
to religious organizations, because, well, those were blue states and people 
didn't want exemptions from civil-rights laws.  Now, in the red states, it can 
be argued that some of the proposals are highly imbalanced or are slaps at gays 
and lesbians: Kansas's certainly was, and some would say Arizona's.  But I 
really question whether these would be the effects of enacting a RFRA for the 
first time in a state like Mississippi, where there aren't gay-rights laws to 
be exempted from in the first place, and where various religious minorities 
(many of them non-Christian) can face indifference and cloaked hostility.

This is another way of expressing the point Alan just made: there are costs to 
opposing RFRAs, costs that people on the left ought to care about too (perhaps 
especially in red states).  Are those costs being weighed accurately against 
the predicted costs on the anti-discrimination/commercial side?

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 11, 2014 12:43 PM
To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way 
back when, we thought they were worth fighting for because of all manner of 
cases that did not involve the commercial sector -- including, for example, 
Doug's prisoner case that the Court just granted.  Doug is right that no one, 
back then, thought commercial sector cases could prevail -- because they have 
virtually never received so much as a vote in the Supreme Court.
But that was then; this is now.  If Hobby Lobby prevails, and if these state 
laws are enacted against the backdrop of such a Supreme Court 

Mandatory Insurance Coverage of Abortion

[Berg, Thomas C.]

 (unlike peyotists, 
orthodox jews, amish, santeriaists, and so on). That's all the more reason to 
believe that the political system ought to be able to sort this out. We aren't 
talking about insular minority groups, after all. Let the 2014 and 2016 
elections be a referendum on the contraception mandate, in part. Let religious 
interest groups use this issue to get out their vote, just like those who 
advocate for anti-discrimination laws and contraception coverage can use it to 
get out theirs. That's a better idea than asking nine (very smart, but hardly 
apolitical) lawyers to fight it out.

Further, I'm not moved by the argument that the logic for the contraception 
mandate could apply just as well to abortion. Under the Court's logic in 
Sebelius, Congress could impose a broccoli mandate (with a tax penalty) if it 
chose to, but it isn't going to because people aren't interested in a broccoli 
mandate. Congress can do all kinds of stupid things. The reason that it only 
does some of the stupid things that it could is that they answer (imperfectly, 
of course) to the people. The American people probably aren't interested in an 
abortion mandate, so it isn't going to happen. That's the bulwark; not the 
courts. These are political/policy questions, and I have no idea why anyone 
would think that the courts are particularly well situated to resolve them.

To be clear, I'm not taking a substantive position on religious objections to 
the contraception mandate or anti-discrimination laws. I'm honestly not sure 
how I would vote on those as a legislator. It would likely depend on what the 
package being offered was and what I understood the reality of the situation to 
be. That's precisely the point: these are issues that a lot of people care a 
lot about. Let's not ask the courts to resolve them for us.

Kicking this kind of question to the courts--which, again, have shown 
themselves to be terrible at dealing with them--through broad-sweeping RFRA 
type language seems to me an act of political cowardice. Sure, it is a nice 
club to bludgeon some government officials with, but that's not a very 
compelling argument for it.

I don't blame the drafters and supporters of the original RFRAs, by the way. I 
supported RFRA at the time. But in retrospect, I surely wouldn't do it again 
given its possible reach. Each time Doug and others assure us that these new 
RFRAs really aren't that big of a deal because they only reach a small set of 
cases, I am left to wonder. How could we possibly know that to be the case?



On Tue, Mar 11, 2014 at 4:53 PM, Berg, Thomas C. 
tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote:
Mississippi does not have a law against sexual-orientation discrimination; if I 
understand the Lupu et al. letter correctly, the local resolutions in Oxford, 
Hattiesburg etc. are not laws.  Therefore, whatever the motivations of the 
proponents of the Mississippi state RFRA, it seems the statute won't make any 
difference in the area of gay rights and religious objections.  Isn't it more 
likely that a state RFRA in Mississippi would be used, say, by a mosque to 
protect itself from indifference or cloaked discrimination that might not be 
reachable under Employment Division v. Smith-or by other religious 
organizations to protect themselves from a variety of other non-tolerant things 
that officials in Mississippi have been known to do?  (This is not a case like 
Arizona, where a state RFRA already existed; and unless I'm mistaken, 
Mississippi's free exercise clause has not been interpreted yet on the question 
whether claims of substantial burdens on religious exercise deserve any 
heightened scrutiny.)

I want to emphasize that I, like the signers of the Lupu et al. letter (p. 4), 
would like to see a state like Mississippi adopt enforceable policy at the 
state and local level protecting gays and lesbians from discrimination.  I 
don't know if it ever has a chance of happening.  But one way to guarantee it 
won't happen is to suggest that there can be no exemptions from such laws in 
the statute itself or under a general religious-freedom act.  (Although the 
Lupu letter frequently refers to discrimination by for-profit businesses, it 
also speaks more generally of rejecting exemptions from civil rights laws, 
which could mean no exemptions for religious non-profit organizations either.  
I wonder whether the signers of the letter think, for example, that if a state 
law prohibits sexual-orientation discrimination in housing including 
educational housing, an evangelical or Orthodox Jewish college that provides 
married-student housing but excludes same-sex married couples cannot be 
exempted, because it's violating a statutorily-declared civil right?)

There are complexities in the way these battles play out politically.  Those of 
us who have argued for several years for exemptions accompanying same-sex 
marriage enactments in the blue states have done so with the feeling that in 
those

RE: On implausible burdens

[Berg, Thomas C.]

Let me take up Chip's question.

I too accept Chip's point that the Establishment Clause encompasses certain 
harms to the polity that occur when the government adopts a religious identity. 
 FWIW, on that basis among others, I joined a brief opposing the prayers in 
Town of Greece, as well as filing a brief supporting Hobby Lobby.  But I think 
that an appeal like Alan's to mutual fairness-strong free exercise as well as 
strong non-establishment-is not just important but is also ultimately 
consistent with Chip's point about polity harms.  We have to ask why government 
adoption of a religious identity is particularly harmful to the polity-compared 
with other controversial matters on which government adopts official 
positions-and several of the answers to that question support accommodation for 
religious exercise as well.

One polity reason, for example, is that religion's integrity is harmed-even 
the favored religion, as Chip suggests-when the government intervenes.  A 
concern that government intervention will harm religion also supports 
accommodations from regulatory burdens.  There's also the Eisgruber and Sager 
argument: the sense of division and exclusion that will occur, even if only 
long-term, when government takes religious sides is particularly great because 
religion goes to ultimate matters and is identity-defining.  But that same 
reason suggests that there are distinctive harms, including long-term ones, 
when government forces people to violate their religious beliefs (harms 
demanding a higher level of justification than the government has so 
legislated).  Third, there is the argument that we want to preserve the sphere 
of ultimate matters as a limit on government's power: leave it to the private 
persons and groups. But that too suggests some closer look before government 
forces those people and groups to violate their beliefs or identity concerning 
ultimate matters.

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, February 16, 2014 9:59 PM
To: Law  Religion issues for Law Academics; aebrownst...@ucdavis.edu
Subject: On implausible burdens

No apologies necessary, Alan.  All of the points in your recent post -- that 
the Town of Greece prayer policy raises structural issues as well as 
coercion/liberty issues , and that many on (and off) this list are quite 
selective in the religious liberty concerns with which they sympathize -- are 
extremely well taken. Rick Garnett brought your MOJ post to the list, and I am 
genuinely curious whether he and others at MOJ agree with your assertion (and 
mine) that the Town of Greece prayer policy raises very serious questions of 
whether the Town (quite independent of coercion) had unconstitutionally aligned 
itself with Christianity.

Thanks.

Chip

On Sun, Feb 16, 2014 at 10:33 PM, Alan Brownstein 
aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote:

I apologize to Chip for not responding earlier to his post. I think Chip makes 
a very important point. There are profoundly important structural arguments 
that justify challenging the Town of Greece's prayer policy. I did not intend 
to suggest otherwise in my blog post. In addition to these structural concerns, 
I also think the Town's policy violated constitutional norms of religious 
equality (see, e.g. Larsen v. Valente). Through its invitation policy, the Town 
discriminated in favor of established religions in the community and against 
members of minority faiths who worshiped in adjoining towns and residents who 
are spiritual but unaffiliated with any organized religious congregation (close 
to 20% of Americans in recent studies.)



But I also think there is an independent and direct burden on religious liberty 
when citizens who are seeking benefits from government officials, or who are 
petitioning government officials on matters directly impacting their lives, 
livelihood or property, or who are having disputes resolved through 
administrative decision-making or litigation are asked first to bow their 
heads, stand, and join in state sponsored prayers that are being publicly 
offered in their names. I think that is inherently coercive and is a direct 
abridgement of religious liberty, notwithstanding the other constitutional 
failings of the Town of Greece's policy.



It was this latter religious liberty concern that was the focus of my blog 
post. This is the concern which I believe 

RE: The nonprofit contraception services cases

[Berg, Thomas C.]

If I understand the argument below made by Americans United, it seems to me a 
non sequitur.  Why can't it be that an activity (such as providing health 
benefits) is secular and yet the persons or organizations engaged in it have 
a religious-freedom interest in being able to pursue it in ways that do not 
violate their religious tenets?  Would Americans United argue that Adele 
Sherbert's work (in Sherbert v. Verner) was religious activity because she 
wanted to pursue it in a way that did not violate her beliefs about the Sabbath?

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Monday, January 06, 2014 3:21 PM
To: Law  Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

One further note, related to Marci's question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are secular expenses. See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National  Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l.  Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame's receipt of public funds, the 
University argued that purchasing health insurance is administrative in 
nature and does not constitute religious instruction or activity. Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can't have it both ways - health insurance is either 
a secular expense or involves religious exercise, but it can't be both at the 
same time.





On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:


Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jan 6, 2014, at 3:15 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Notre Dame is allowed (I assume - again, I am just an employee and am not 
involved in admissions or with the University Counsel's work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edumailto:rgarn...@nd.edu

To download my scholarly papers, please visit my SSRN 
pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://mirrorofjustice.blogs.com/

Twitter:  @RickGarnetthttps://twitter.com/RickGarnett

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh's post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty 

RE: Discrimination under Title VII and RFRA (was Patently Frivolous)

[Berg, Thomas C.]

In response to Chip,

As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain 
medicines/methods that they believe cause abortions of fertilized embryos.  
Unless opposition to abortion is a form of statutory sex discrimination, which 
the Court rejected in Bray v. Alexandria Women's Health Center, this element at 
least complicates any argument that sex discrimination is the interest in these 
cases.  (The government asserts that abortion is not involved here, for both 
legal and medical reasons, but this at least complicates the matter--especially 
in a case where the question concerns the objector's conscientious belief.)

Moreover, as to the Catholic plaintiffs--those opposed to contraception as well 
as abortion--all of the complaints, as I remember, state that plaintiffs' 
object to paying for sterilization as well as for abortion and contraception.  
Presumably they would object to having to pay for vasectomies--if the mandate 
required those, which it apparently does not.  This article from Kaiser Health 
News indicates that the relevant parts of the mandate only covers preventive 
services for women.  
http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
  If this article is wrong, someone please correct me.  But it would be strange 
for the government to enforce a regulation covering only services for women and 
then claim that the one who objects to it is engaged in sex discrimination 
(when there is a good likelihood that the moral objections would extend to 
relevant services for males).

There is of course the argument for the importance of contraceptive access to 
women's health, life-planning, and autonomy.  The government has made that 
argument strenuously, and we'll see if it succeeds on these facts.  But it 
seems to me that going further and framing the issue as sex discrimination by 
the objectors faces problems.

Tom

P.S.  here is the relevant passage from the link above:

 1) Are male-based contraceptive methods, such as vasectomies or condoms, 
covered by the rule?

An HHS official said on Friday that women’s preventive services guidelines 
apply to women only.

Guidelines issued by the Health Resources and Services Administration, part of 
HHS, require coverage without cost sharing for all Food and Drug 
Administration-approved contraceptive methods, sterilization procedures and 
patient education and counseling for all women with reproductive capacity as 
prescribed by a provider, according to the Federal Register.

The insurers' letter from September says they interpreted the rule to include 
only female-based contraception and that the requirement to waive co-payments 
does not apply to methods and procedures intended for males.

But Adam Sonfield, senior public policy associate at the Guttmacher Institute, 
a reproductive health research group, says the language is unclear, and it 
would be foolish to exclude vasectomies. For one thing, he says, they are less 
expensive and pose a lower risk of complications than female surgical 
sterilization methods. Plus, he says, waiving co-payments for services for one 
sex but not the other raises issues of discrimination.


-
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.edumailto:tcb...@stthomas.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 Ira Lupu [icl...@law.gwu.edu]
Sent: Wednesday, November 27, 2013 10:12 AM
To: Law  Religion issues for Law Academics
Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous)

All of Marci's hypotheticals are loaded up, because they involve direct 
imposition on women's behavior (wear head scarves, don't use certain medicines 
or drugs) rather than just refusing to pay for the relevant goods.  And Marci's 
claim that Hobby Lobby and others are engaging in religious discrimination 
seems wrong to me -- the refusal to cover affects every female employee, 
regardless of her religious beliefs or affiliation or conduct.

But Marci's argument that Hobby Lobby and others are engaging in sex 
discrimination, in violation, of Title VII, seems much more persuasive  - the 
coverage refusal affects all women and only women, and is therefore a sex 
discriminatory denial of legally compelled fringe benefits.  I have not read a 
single post that replies to that way of framing the argument.   If we view this 
as an attempt to gain a RFRA-based exemption from Title VII as well as from the 
ACA, does that change the analysis?  Doesn't the government's compelling 

RE: Contraception Mandate

[Berg, Thomas C.]

Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:



1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something off the wall that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the it's 
radical pitch seemed simply to be preaching to the choir.



2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why we can countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience-a unique limit on such claims and not on others-isn't that a reason 
to be more confident that in this context society would reach an accommodation 
that takes both important interests seriously?



  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms.  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the encroachment on 
religious freedom-an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
effect on third parties is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?



  Second, you quote Thornton v. Caldor's statement that [t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities 
(a principle that you say matters here in a particularly powerful way).  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees must conform their conduct to his own religious necessities.  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)



There are significant questions here about the baselines from which we 
determine or measure effects on others: who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah's Witness example that Marci raises, for example).  But I 
don't think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-

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) 962-4996

E-mail: tcb...@stthomas.edu

SSRN: http://ssrn.com/author='261564

Weblog: http://www.mirrorofjustice.blogs.com





-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate







Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting 
on today's cert. grant. We emphasize three differences between these cases and 
Citizens United, including the significant Establishment Clause 

RE: Contraception mandate

[Berg, Thomas C.]

I hesitate a bit to pitch my piece here, since it could accelerate a trend that 
we might not want if the list is otherwise active; but since it's not active 
for now, I'll refer to my own new piece, which is likewise on (part of) the 
mandate and the culture wars and aims to express a certain position outside the 
familiar poles: progressive arguments for the freedom of religious 
organizations.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268824



-
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.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, August 01, 2013 9:53 AM
To: d...@crab.rutgers.edu; 'Law  Religion issues for Law Academics'
Subject: RE: Contraception mandate

By coincidence, I just posted a related piece, broader than Perry’s in some 
ways, narrower in others:

http://papers.ssrn.com/abstract=2304427

The piece is framed in terms of the larger culture wars, and does not offer a 
full doctrinal analysis of the contraception litigation. But buried in the 
middle is a fairly detailed analysis of the recently published Final Rules on 
the contraception mandate, which also “tries to speak sanely.”



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 Perry Dane
Sent: Thursday, August 01, 2013 10:27 AM
To: religionlaw@lists.ucla.edu
Subject: Contraception mandate


Hi all,

I've posted a short essay -- half of a projected exchanged -- that tries to 
speak sanely about the contraceptive mandate debate.  The piece offers a 
doctrinal analysis, but also explores how the debate -- and in particular the 
overblown claims by both sides -- suggest some imperfectly articulated 
undercurrents in the current American conversation about religion and the law. 
 See http://ssrn.com/abstract=2296635

Comments would, of course, be welcome.

   Perry

*



Perry Dane

Professor of Law

Rutgers University School of Law



d...@crab.rutgers.edumailto:d...@crab.rutgers.edu



Bio: www.camlaw.rutgers.edu/bio/925/http://www.camlaw.rutgers.edu/bio/925/

SSRN Author page: http://www.ssrn.com/author=48596

Academia.edu page: rutgers.academia.edu/PerryDane



*
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RE: RLUIPA prison cases

[Berg, Thomas C.]

You might suggest Sarah Gerwig-Moore at Mercer.  She has this piece: Sarah 
Gerwig-Moore, (2012) Saving Their Own Souls: How RLUIPA Failed to Deliver on 
its Promises, 4 LEGISLATION AND POLICY BRIEF Vol 4. Iss. 1, Article 4.

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Monday, April 22, 2013 3:40 PM
To: Law  Religion issues for Law Academics
Subject: RE: RLUIPA prison cases

Becket does a fair amount of this; so does the Aleph Institute in Miami 
Florida. I'd go with Becket.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, April 22, 2013 4:31 PM
To: 'Law  Religion issues for Law Academics'
Subject: RLUIPA prison cases

The Federal Judicial Center is looking for someone to talk about prison cases 
under RLUIPA, in New Orleans in September. Someone told them I was a RLUIPA 
expert, but I have worked only on land use, and anyway, I have a schedule 
conflict.  Somebody must be doing work on the prison cases. I told them I would 
ask around.

Nominations invited; self nominations included.

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: Court Rejects Religious Liberty Challenges To ACA Mandate

[Berg, Thomas C.]

Marty,



The fact that services must be covered in the plan by virtue of legal mandate 
(are required by law) can't be enough to counter the asserion of a burden, 
can it--or even be a significant factor in countering it?  That would do away 
with virtually every free exercise claim (I'm only providing facilities for an 
abortion, or I'm only receiving a blood transfusion, under legal compulsion).



You place a lot of weight on the claim that most Catholic theologians say this 
isn't cooperation with evil, and that no one has articulated a serious 
argument that distinguishes this and paying salaries or taxes.  I don't think 
those things are true (can one conference show it?): consider, for example, 
Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's 
argument here about inclusion of the services in the plan language.  You and 
others may not find those arguments convincing.  But rejecting the burden claim 
based on finding the distinction unconvincing, or on the existence of a great 
deal of skepticism among [Catholic] theologians, can't be squared--can 
it?--with Thomas v. Review Board, where the Court said that Thomas's judgment 
on what work would cooperate with the evil of arms production should be 
deferred to even though other Jehovah's Witnesses disagreed.  Courts are not 
arbiters of scriptural interpretation; the court can't dismiss the!
  claim at the threshold because it concludes the asserted belief is not 
logical, not consistent, etc.



Occasionally you seem to be treating this as a question of remoteness of 
facilitation for burden purposes independent of Catholic moral thought; but 
more often you return (as I think one must in assessing burden) to asking why 
claimants believe this is material cooperation with evil, from a Catholic 
moral perspective.  That latter question, it seems to me, falls squarely 
within the restrictions of Thomas v. Review Board not to second-guess the 
claimant's understanding of its obligations.



Tom



-
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.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Sunday, September 30, 2012 11:56 AM
To: Law  Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My post bounced, apparently because of the number of recipients!  Resending 
without so many cc's.  Sorry for any duplicate receipts.

On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
For what it's worth, at our Georgetown Conference on this issue last week (a 
video of which should be posted soon), there appeared to be a great deal of 
skepticism among the Catholic theologians and other scholars present (some of 
whom I am copying here, along with some others at the conference) that where an 
employer provides employees with access to a health-insurance plan on 
compulsion of law; the services in question are part of the plan virtue of 
legal mandate; and the use of the plan to pay for any particular heath care 
service is entirely within the discretion of the employee and her physician, 
the employer does not thereby engage in material cooperation with evil just 
because some employees might choose to use the plan (unbeknownst to the 
employer) to subsidize the use of contraception.

I am hardly an expert in such questions of Catholic doctrine; but I, for one, 
have yet to see any serious argument from those objecting to the Rule that 
compliance would result in a violation of religious obligations on account of 
such cooperation.  That doesn't mean there is no such argument out there, of 
course.  But I think it helps to explain in part why plaintiffs in most of 
these cases have thus far not articulated a theory of substantial burden based 
on cooperation-with-evil, and why some courts are so skeptical of the 
allegation of a substantial burden -- namely, that such arguments appear to 
prove far too much w/r/t an employer who does not raise a similar objection to 
the inevitable use of its salary payments and taxes (via the intervention of 
genuinely independent choice on the part of the state or other private parties) 
for numerous forms of conduct that the employer deems to be wrongful.

Doug (and others):  I would be extremely grateful for any citations to Jewish 
or other non-Catholic treatments of this issue of cooperation with evil, thanks.

Mark S.: 

RE: Court Rejects Religious Liberty Challenges To ACA Mandate

[Berg, Thomas C.]

In the message below I meant Mother Angelica's network (EWTN), not Mother 
Teresa's.  Never could tell those two apart! :-)

-
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
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 Berg, Thomas C.
Sent: Sunday, September 30, 2012 4:52 PM
To: Law  Religion issues for Law Academics
Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate

Sandy, my particular objection was to the argument that no cognizable claim of 
cooperation with evil has been stated here.  That seems to me wrong, and 
disposed of by Thomas.  The practical concerns you raise may pose real problems 
for the claims by commercial businesses, at least those that are sufficiently 
large and do not (unike Mother Teresa's network, for example) produce a 
religious product.  But most of those concerns fit better under the 
government-interest approach.  Let's not pretend that we can resolve this by 
saying that no distinct, distinguishable claim of cooperation with evil has 
been stated.  Among other things, that argument would (wrongly, in my view) cut 
also against claims by religious non-profit organizations.  (Although I 
certainly agree with Rick that religious organizations have liberties that 
extend beyond conscientious objection, I'm not sure how powerful those claims 
are here by themselves.)  Whereas the problems of manageability for claims by r!
 eligious organizations are far less.

-
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
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 Sanford Levinson [slevin...@law.utexas.edu]
Sent: Sunday, September 30, 2012 2:35 PM
To: 'religionlaw@lists.ucla.edu'
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

With genuine respect to Tom, I don't think that one can really generalize from 
Thomas.  Burger did say what Tom says he said, but it simply can't be the case 
that the First Amendment allows highly idiosycratic religious believers 
effectively to torpedo important programs, especially when there is so much 
incentive to engage in strategic misrepresentation and where, unlike the CO 
cases, the dissidents apparently need do little or nothing more than assert 
their belief.

And, I confess, I'm just not impressed by the phenomenological differences with 
the pacifist taxpayer, though as a lawyer I know how to construct the formal 
distinction.

Sandy

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Sun Sep 30 13:30:07 2012
Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate

Marty,



The fact that services must be covered in the plan by virtue of legal mandate 
(are required by law) can't be enough to counter the asserion of a burden, 
can it--or even be a significant factor in countering it?  That would do away 
with virtually every free exercise claim (I'm only providing facilities for an 
abortion, or I'm only receiving a blood transfusion, under legal compulsion).



You place a lot of weight on the claim that most Catholic theologians say this 
isn't cooperation with evil, and that no one has articulated a serious 
argument that distinguishes this and paying salaries or taxes.  I don't think 
those things are true (can one conference show it?): consider, for example, 
Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's 
argument here about inclusion of the services in the plan language.  You and 
others may not find those arguments convincing.  But rejecting the burden claim 
based on finding the distinction unconvincing, or on the existence of a great 
deal of skepticism among [Catholic] theologians, can't be squared--can 
it?--with Thomas v. Review Board, where the Court said that Thomas's judgment 
on what work would cooperate with the evil of arms production should be 
deferred to even though other Jehovah's Witnesses disagreed.  Courts are not 
arbiters of scriptural interpretation; the court can't dismiss

RE: Contraceptives and gender discrimination

[Berg, Thomas C.]

To the extent the mandate requires coverage of emergency contraceptives that 
people at least plausibly believe cause early abortions in some cases (I will 
not comment on the state of scientific debate here), does that put it in a 
different category from ordinary contraception--even for 50+-employee secular 
employers--under our tradition of statutory accommodations for conscience, 
including provisions in the Affordable Care Act itself?


-
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.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Monday, February 13, 2012 9:31 AM
To: Law  Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Contraceptives and gender discrimination

Howard Friedman is correct that the USCCB has extended its concerns to secular 
employers, who could not take advantage of the Title VII provision permitting 
religious entities to hire only co-religionists (and then to fire sinners).  So 
the mandate is less easily avoidable for secular employers.  Two thoughts:

1.  Secular employers with 50+ employees are in a highly regulated activity 
(the employment relation).  If any of them cannot in good religious conscience 
comply with secular regulations (no race or gender discrimination; wages and 
hours; OSHA; health  insurance mandate), perhaps they should transfer their 
assets to a different form of economic activity.  That is a different form of 
avoidability of the regulations (and one that does not require surrender of a 
religious mission).

2.  If secular employers raise a RFRA claim against the contraceptive coverage 
mandate, shouldn't they be subject to inquiry into the sincerity of their 
beliefs -- i.e., the extent to which they have complied in their own lives with 
the teachings about contraception?

On Mon, Feb 13, 2012 at 9:15 AM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:

The US Conference of Catholic Bishops in responding to the modified policy 
seems to believe that protections should go beyond religious entities and 
should cover secular employers and individuals with moral objections as well. 
They said ( http://usccb.org/news/2012/12-026.cfm ):

**the lack of clear protection for key stakeholders—for self-insured religious 
employers; for religious and secular for-profit employers; for secular 
non-profit employers; for religious insurers; and for individuals—is 
unacceptable and must be corrected.**

Is the religious liberty problem here an inevitable function of a system that 
relies on employer-based health insurance coverage? Or would coverage of 
similar services by Medicaid that is supported by taxpayers more broadly an 
equal problem?

Howard Friedman


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of Ira Lupu
Sent: Mon 2/13/2012 8:49 AM
To: Marc DeGirolami
Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law  Religion issues for Law Academics; 
Con Law Prof list
Subject: Re: Contraceptives and gender discrimination

On the burden question -- Religious entities may limit hiring to
co-religionists, and then make their best efforts to enforce religious
norms against employees.  Doesn't that option make the burden of the HHS
policy far less substantial?

I think a common reaction to the religious liberty claim being advanced
here is its leveraging effect on employees who are not of the faith.  So
even if some faiths have a religious mission to serve others, do they
similarly have a religious mission to employ others?  Or is it their
religious mission to impede access to contraception by all, whether or not
of the faith?  If it's the latter, I don't know why their position is any
different from or stronger than taxpayers who don't want to to support what
they see as immoral activity by their government.

On Sun, Feb 12, 2012 at 9:51 PM, Marc DeGirolami 
marc.degirol...@stjohns.edumailto:marc.degirol...@stjohns.edu wrote:

 Before one gets to how compelling the state's interest is, one needs to
 make a judgment under RFRA about whether the burden is substantial.

 Like Kevin, I'd also like to know how supporters of the mandate would
 characterize this burden as incidental, as opposed to substantial, as the
 latter term is used in the RFRA.  In the face of a claimant's sincere
 argument (if we may stipulate to sincerity) that the burden of complying
 with a regulatory scheme which 

RE: Supreme Court sides with church on decision to fire employee on religious grounds

[Berg, Thomas C.]

Alan, I'm not predicting two more justices, let alone with any certainty, or 
talking about all lay teachers.  I was only making the point that three 
justices adopted a broader standard than the majority, and the fact that one of 
them was Kagan is notable and makes the road to additional votes significantly 
easier than otherwise.  My sense, from oral argument among other things, was 
that Roberts and Scalia would be easier fifth votes than Kennedy to go further 
than these facts.  On your second point, in many religious schools, at least 
some lay teachers have a central role, not just some role, in communicating the 
religious message, as Lemon and many other cases have emphasized.  

Finally, I agree that funding complicates things.  I assume that government has 
authority to refuse to fund positions where discriminatory selection criteria 
operate (although, as you know, I think religious-belief selection criteria are 
a different case concerning religious organizations).  I wouldn't turn that 
authority into carte blanche for funding restrictions.  Would you say the mere 
fact that some lay teachers at a school would be classified within the 
ministerial exception would justify excluding all students at that school from 
participating in a true private choice voucher program, or (at the college 
level) from receiving state scholarships?  Would you say this even if the 
school had not been shown to discriminate but merely referred to such teachers 
as ministers?

-
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
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 Brownstein [aebrownst...@ucdavis.edu]
Sent: Thursday, January 12, 2012 12:01 AM
To: Law  Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on
religious grounds

Tom,

I have long since given up trying to predict how Supreme Court justices will 
decide future cases (or to assume that there will be logical consistency or 
even intellectual integrity in all opinions.) But Justice Roberts clearly and 
repeatedly emphasizes the title, status, and acknowledged role of minister or 
clergy as significant factors in reaching his decision in this case. Why are 
you so confident that all of this language in the opinion is superflous? I 
agree that Alito and Kagan's concurrence provides more support for including 
some lay teachers in the exception. But even they say What matters is that 
respondent played an important role as an instrument of her church’s religious 
message and as a leader of its worship activities.  The words important role 
and a leader arguably mean something different than some role and a 
participant.

Finally, of course, there is the question of how the understanding of who 
qualifies for the ministerial exception relates to the question of what 
positions the government can fund in religious institutions. Can the government 
fund the salary of teachers who play an important role as an instrument of 
their church's religious message and as a leader in its worship activities? If 
the answer to that question is Yes and it is also true that such teachers are 
enough like clergy in their religious functions to be included in the 
ministerial exception, would it follow that government can also fund the salary 
of clergy? Is it constitutionally permissible for the government to refuse to 
fund teaching positions at a religious school which refuses to hire 
African-Americans, women, and the disabled as teachers?

Alan




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Wednesday, January 11, 2012 7:47 PM
To: Law  Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on
religious grounds

Alan,

I agree that the majority leaves open the issue of lay teachers.  But since 
three justices take a broader approach to defining a minister, all you need for 
a majority in a later case is two more votes, and Roberts and Scalia seem 
reasonable prospects to me in a case that presents the issue.  Thomas would 
defer heavily to the religious organization's characterization of an employee 
as a minister.  And Alito and Kagan say that ordained or commissioned status 
isn't crucial, that the criterion is “positions of substantial religious 
importance”—including those “teaching and conveying the tenets of the faith to 
the next generation

RE: Supreme Court sides with church on decision to fire employee on religious grounds

[Berg, Thomas C.]

Alan,

I agree that the majority leaves open the issue of lay teachers.  But since 
three justices take a broader approach to defining a minister, all you need for 
a majority in a later case is two more votes, and Roberts and Scalia seem 
reasonable prospects to me in a case that presents the issue.  Thomas would 
defer heavily to the religious organization's characterization of an employee 
as a minister.  And Alito and Kagan say that ordained or commissioned status 
isn't crucial, that the criterion is “positions of substantial religious 
importance”—including those “teaching and conveying the tenets of the faith to 
the next generation”--and that the constitutional protection of religious 
teachers is not somehow diminished when they take on secular functions in 
addition to their religious ones.  What matters is that respondent played an 
important role as an instrument of her church’s religious message and as a 
leader of its worship activities.  I can see many lay teachers in seriously 
religious schools satisfying such a test.  Kagan’s agreement with that standard 
is quite significant, as is her joining the Alito concurrence overall.

Tom

-
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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Wednesday, January 11, 2012 1:47 PM
To: Law  Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on 
religious grounds

Rick,

As to lay teachers at religious schools, the Court said, “We express no view on 
whether someone with Perich’s duties would be covered by the ministerial 
exception in the absence of the other considerations we have discussed.”  I 
thought that left open the issue of lay teachers at religious schools. Have I 
missed something here?

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Wednesday, January 11, 2012 11:34 AM
To: Law  Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on 
religious grounds

Dear Marci,

I guess not, but I think people usually think of “clergy” as ordained, or as 
otherwise officially designated.  I think the opinion constitutionalizes an 
exception that covers a broader category of “ministers” (including, of course, 
many lay teachers at parochial schools, who are not usually referred to as 
“clergy.”).

Best wishes,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

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Ministerial Exception Cert Petition

[Berg, Thomas C.]

The Becket Fund and Doug Laycock have filed a cert. petition in Hosanna-Tabor 
Evangelical Lutheran Church and School v. EEOC, raising the question [w]hether 
the ministerial exception applies to a teacher at a religious elementary school 
who teaches the full secular curriculum, but also teaches daily religion 
classes, is a commissioned minister, and regularly leads students in prayer and 
worship.  See the links at Howard Friedman's Religion Clause blog, 
http://religionclause.blogspot.com/2010/10/cert-petition-filed-in-ministerial.html.

The petition makes the case that ignoring the teacher's clergy-type duties on 
the ground that her primary duties were to teach secular classes is 
unconstitutional, and that the courts of appeals are divided on how to 
determine whether the ministerial exception applies to a given employee.  
Eugene commended the petition's quality, 
http://volokh.com/2010/10/28/antidiscrimination-laws-and-religious-organizations,
 but I don't know what he thinks about the merits.  Rick Garnett called it one 
of the most important religious freedom cases in years.  
http://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/one-of-the-most-important-religious-freedom-cases-in-years.html
  And Marci has referred to the case among others in arguing that the Court 
ought to take a case to define the ministerial exception.  
http://writ.news.findlaw.com/hamilton/20100722.html.



Seems like a case worth discussing.  Thoughts from anyone on the list, 
including any of these folks?

-
Thomas C. Berg
St. Ives Professor of Law, Associate Dean for Academic Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice


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RE: Snowbowl decision

[Berg, Thomas C.]

Mockaitis was the priest, who sued to have the tape suppressed and further 
eavesdropping of confessionals in the jail stopped.  Wasn't his exercise of 
religion -- his ability to administer a Catholic sacrament with its essential 
feature of confidentiality -- substantially burdened even with no threatened 
sanctions against him?

-
Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Steven Jamar [stevenja...@gmail.com]
Sent: Saturday, June 13, 2009 6:14 PM
To: Law  Religion issues for Law Academics
Subject: Re: Snowbowl decision

Tom,

I understand the points in your brief and think it well done.

My question relates narrowly to any problems there are for Christians.  I can 
see many more problems for other faiths, including in particular your examples.

I suppose the eavesdropping on the priest/penitent case is Christian, and it 
burdens the exercise -- but is there not a sanction under the 9th circuit (use 
of the tape against the penitent)?

Let's consider zoning perhaps.  Is a denial of a variance a sanction? or a 
denial of a benefit?  Or is it just a regulatory action which does not meet the 
9th circuit test under any likely interpretation?  Denial of a permit to build 
a church could substantially affect religious exercise of the religious 
community.  Is this not a cognizable claim at all under RLUIPA under any 
possible reading of the 9th circuit test?

Are there any others?

Steve

On Sat, Jun 13, 2009 at 6:05 PM, Berg, Thomas C. 
tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote:
I don't see what child abuse cases have to do with this, other than that Marci 
likes to bring them up in order to try to discredit free exercise of religion 
in general.

The Ninth Circuit's standard is that a 'substantial burden' [under RFRA] is 
imposed only when individuals are (1) forced to choose between following the 
tenets of their religion and receiving a governmental benefit ... or (2) 
coerced to act contrary to their religious beliefs by threat of civil or 
criminal sanctions.  Our amicus brief, 
http://www.narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf,
 lists cases that might be dismissed at the threshold under that language.  
They involve varying faiths; we weren't just concerned about Christians.  There 
are the cases of Hmong or some Jewish families' objections to loved ones' 
autopsies, which were prime examples given to Congress of why RFRA was needed, 
but which don't involve the imposition of civil or criminal sanctions on anyone 
or deny anyone a benefit.  There are also prisoner cases, from multiple faiths, 
where the prisoners are not sanctioned but simply have their religious 
materials taken away f!
 rom them or are refused a worship space or a religiously required diet.  (The 
same restrictive substantial burden test could well spread to RLUIPA or to 
state RFRAs.)  The government also confiscated religious materials (the 
sacramental tea) in Gonzales v. O Centro; that part of the case involved 
neither denial of a benefit nor  coercion to act contrary to religious belief.  
The Ninth Circuit's test could also mean that government eavesdropping on 
religious conversations, meetings, or houses of worship creates no burden 
(entirely apart from whether a strong government interest justifies the 
burden).  The en banc decision essentially disapproved the circuit's Mocklaitis 
decision that had held RFRA was triggered by the government's surreptitious 
recording of a confessional between a prisoner and his priest.  Those are some 
of the examples that occurred to those of us who joined the brief.

As I said in my earlier post, there are ways to read the Ninth Circuit's 
language narrowly to avoid these results.  I expect that will happen in some of 
the situations.  But lawyers and judges ought not to have to parse or 
manipulate the phrasing in order to cover these cases, which involve 
substantial real-world inhibitions of religious practice and several of which 
are core applications of the statute.  (All this in addition, of course, to the 
effects on Native American practices in the federal-lands case themselves.)

Tom

-
Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail

RE: Snowbowl decision

[Berg, Thomas C.]

Ted,

A group of religious liberty scholars (several of them on this list, including 
me) filed an amicus brief supporting the cert petition arguing that the 
standard the 9th Circuit used to dismiss this case (for lack of a substantial 
burden under RFRA) could have far-reaching effects, including on cases 
involving prisoner religious claims and church land-use claims.  
http://narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf
  There was a similar brief from religious organizations, all of them 
Christian.  
http://narf.org/sct/navajonationvusfs/amicus_of_religious_organizations.pdf  If 
the 9th Circuit follows its language broadly, the effects could be large.  If 
it limits its rule to federal-land issues or allegedlly purely spiritual harms, 
the effects on serious religious claims of non-Native-American faiths will 
probably be smaller.

-
Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ted Olsen [tol...@christianitytoday.com]
Sent: Friday, June 12, 2009 12:33 PM
To: Religionlaw@lists.ucla.edu
Subject: Snowbowl decision

The Snowbowl decision (Navajo Nation v. Forest Service, denied cert. this week 
by scotus) appears significant for religion clause discussions and seems like 
it could be good fodder for a discussion in my magazine (Christianity Today).  
But the significance to Christianity is not immediately apparent to me.

Any ideas?

The one I've thought about is looking again at the 9th Circuit opinion (which, 
admittedly, is now a year old) and the questions it raises about whether RFRA 
protects subjective, emotional religious experience. The court said 
diminishing subjective, emotional religious experience (i.e. damaged 
spiritual feelings) doesn't constitute a substantial burden. The dissent said 
subjective emotional religious experience is at the very core of religious 
belief and practice and therefore deserves the highest protections. That 
discussion could be interesting not just for the religion law questions but 
because it connects to so many other ongoing debate and questions (protecting 
damaged spiritual feelings in various domestic laws and UN resolutions, the 
relationship between heart religious expressions and head ones, e.g. 
Pentecostals feeling like the red-headed stepchild of the evangelical movement 
or of American Christianity in general, etc.)

But I'm no expert. Am I missing a more obvious implication of the Snowbowl case 
on Christian faith and practice?

Ted Olsen
Managing Editor, News  Online Journalism
Christianity Today
http://www.christianitytoday.com/ct/
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RE: Same-sex marriage and religious exemptions

[Berg, Thomas C.]

I worked in the effort to get the exemption in the ENDA bill broadened in 2007 
from a very narrow provision to one analogous to the Title VII religious-hiring 
exemption.  I agree that that's basically the right way to handle the bill.  At 
that time, part of the political dynamic was that the Democrats had only narrow 
majorities and Bush was sure to veto it otherwise (although he might have done 
so regardless).  Those are no longer true.  But probably, at least, getting to 
60 and beating a filibuster requires the broader exemption.

-
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, 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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Friday, April 10, 2009 2:21 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Same-sex marriage and religious exemptions


Thanks Chip; that's helpful information.  Of course it hasn't passed yet, but 
maybe it will, and with appropriate exemptions.

The other way to read that is that it highlights the advantages of doing a deal 
in Congress instead of in the 50 states.  State legislation gay rights tends 
either not to pass (in red states), or to pass with very narrow exemptions (in 
blue states).  I won't claim that there are no exceptions, but surely that's 
the dominant trend at the state level.

Quoting Ira (Chip) Lupu icl...@law.gwu.edu:

 Doug writes:

 On the gay rights issues, religious conservatives are pretty much
 getting exemptions only within the church itself -- not even their
 affiliated religious organizations -- which is to say, they are
 getting only those exemptions that no sensible person on the gay
 rights side actually opposes.

 From everything I have heard, no version of ENDA (the bill that
 would extend Title VII to discrimination based on sexual
 orientation) can possibly pass unless it includes the same exemption
 for religious organizations (not just houses of worship) as the
 current Title VII exemption for such organizations to engage in
 religious selectivity.  If that is right, such an exemption will
 include a broad range of religiously affiliated entities (i.e.,
 schools, charities, etc, organized for religious purposes).  So
 Doug's pretty much in the first sentence above may be obscuring
 some very important matters.


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RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases

[Berg, Thomas C.]

Churches can and do refuse to perform the marriages of those who the clergyman 
thinks are not ready, or who don't have some connection to the church, or who 
don't go through a religious counseling class, etc., although all those people 
are entitled to civil marriage.  So far as I can see, almost no clergy other 
than the marriage-mill ministers adopt the virtually no questions asked rule 
that is the baseline eligibility for civil marriage.  But the church's decision 
not to solemnize has no effect on the state's rule, because the couple can 
typically go to any one of a number of public officials with ease.  By 
contrast, in Steve's hypo, a church's claim to be able to perform a marriage 
with civil effect when the state's laws don't recognize it would clearly affect 
the state's policy.  It seems to me that's a significant difference.

Steve's argument therefore would logically exclude virtually all churches from 
performing marriages with civil effect.  Perhaps that's where we will or should 
go; a complete separation of civil and religious marriage has a logical 
consistency.  But it's not obvious that we should take that step - eliminating 
the state message of the solemnity of civil marriage that is sent by including 
clergy among those who can perform marriages, and telling all religiously 
oriented couples they should get married twice - in the name of avoiding church 
refusals to marry that don't burden anyone's access to civil marriage.

If other on the hand, only some churches end up being excluded, as Roger 
Severino suggests may happen, that in my view would indicate that the exclusion 
was not based on which churches caused more harm to the state's policies - for 
again, couples have easy alternative means.  It would indicate the exclusion 
was based on the state's disagreement with the group's theology.

-
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, 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) 962-4996
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Thursday, April 09, 2009 1:06 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious 
exemption cases

The protected sphere for religion should involve that which is actually 
religious.  Thus, churches should not be compelled to dispense sacraments to 
those of whom they disapprove.  But when churches step outside that sphere in 
order to play (as Roger puts it) a robust role in public life, as they have a 
right to do, aren't they necessarily expected to honor the public laws?

Roger seems to be arguing for special privileges -- freedom not only to 
dispense sacraments in the religious sphere, but also freedom to serve as 
arbiter of whose marriages may be solemnized in the public sphere.  But the 
freedom to practice religion cannot mean that, when it enters the public 
square, a religious institution gets to remain a law unto itself.  For purposes 
of civil marriage, solemnization is not an inherently religious activity.  
Thus, why should a church be allowed to pick and choose which marriages it will 
solemnize in the state's name?  Isn't the power to perform solemnizations a 
privilege, not a right?

Imagine we're in a state that doesn't allow same-sex marriage, but a house of 
worship insists that it be allowed to create such marriages (and have them 
fully recognized by the state) because failure to do so would violate its 
freedom of conscience?  How is that different from letting churches turn away 
those whom the law deems entitled to solemnization?  In both cases, religious 
freedom is being used to demand a special niche where civil rules are bent in 
order to conform to religious doctrines.

Steve Sanders



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roger Severino
Sent: Wednesday, April 08, 2009 9:28 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious 
exemption cases

Art, I am curious to know why you think same-sex marriage states will not 
(ever?) impose new regulations on the power of clergy to solemnize civil 
marriages.  As for the religious liberty interests at stake, it is again, not a 
question of direct coercion, but of whether religious institutions that remain 
true to their religious identity will be allowed to retain a robust role in 
public life when that identity 

RE: Americans United: Iowa Supreme CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Berg, Thomas C.]

?  If a gay person is denied a
job on the basis of sexual orientation, what difference does it make whether
he's single or married?

Benefits to spouses may be a different issue.  If a religious school or
social service employs a gay person, that person is legally married, and the
relevant state recognizes the marriage, then can someone suggest a legal
argument under which the employer could legitimately refuse to subsidize
health insurance for the gay spouse while doing so for a heterosexual
spouse?  If not, what's the best argument for an exemption?

What if a heterosexual spouse who was seeking benefits subscribed to
religious doctrines that were incompatible with those of the religious
employer.  Would an exemption be justified under those circumstances?  Why
is that different than they gay spouse?

_

Steve Sanders
Attorney, Supreme Court and appellate litigation practice group, Mayer Brown
LLP, Chicago
Co-editor, Sexual Orientation and the Law Blog
Adjunct faculty, University of Michigan Law School (Winter term 2010)
Email: steve...@umich.edu
Personal home page: www.stevesanders.net






 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
 Berg, Thomas C.
 Sent: Monday, April 06, 2009 7:45 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Americans United: Iowa Supreme
 CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

 I agree that it is extremely unlikely that an objecting
 church or clergyperson will be forced to host or perform a
 same-sex marriage.  But I wouldn't rest this on the argument
 that no couple would seek to be married by someone who
 doesn't want to marry them.  After all, it's a good question
 why any couple would want, from all the wedding photographers
 available, one who [in Alan's terms] thinks their
 relationship is sinful and is only [conceiving and shooting
 the pictures] under threat of legal sanction.  To subject
 Elaine Huguenin, the photographer, to a legal sanction of
 $6,600-plus, all Vanessa Willcock and her partner had to do
 was complain to the New Mexico Human Rights Commission on the
 ground that they felt shocked, angered, saddened, and
 fearful when Elaine told them she didn't do same-sex
 ceremonies.  It is hard to deny that some gay-rights
 proponents want to get antidiscrimination sanctions against
 conscientious objectors whose services they wouldn't actually!
   want, or need, to use.  That may not extend to forcing
 houses of worship to marry people, but not because of a
 general live and let live attitude.

 I applaud Alan's proposal for an exemption in the next
 California proposal, but why shouldn't the exemption be
 broader?  The hypothetical church pressured to perform a
 ceremony hardly exhausts the range of religious liberty
 issues raised by same-sex marriage.  Without significant
 exemptions, the advent of same-sex marriage in a state
 increases the prospect that non-profit religious schools and
 social services, even those with religious content throughout
 their programs, will be punished if they refuse to hire
 openly gay people as teachers or counselors or to pay
 benefits to their partners.  It may do this by directly
 triggering the obligation to pay spousal benefits, by
 changing the legal characterization of a hiring decision from
 marital-status discrimination to sexual-orientation
 discrimination, or by strengthening the claim that -- like
 race in Bob Jones -- there is a firm [governmental] policy
 against sexual-orientation discrimination in virtually every context.

 -
 Thomas C. Berg
 St. Ives Professor of Law
 Co-Director, Murphy Institute for Catholic Thought, 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) 962-4996
 E-mail: tcb...@stthomas.edu
 SSRN: http://ssrn.com/author='261564
 Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
 --
 --
 
 From: religionlaw-boun...@lists.ucla.edu
 [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,
 Alan [aebrownst...@ucdavis.edu]
 Sent: Saturday, April 04, 2009 6:37 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Americans United: Iowa Supreme Court
 RulingOnMarriageUpholdsReligious Liberty, Says Americans United

 As a hypothetical question, I think there is an
 extraordinarily slight possibility that churches or clergy
 will ever be required to host or officiate the marriages of
 same sex couples. But this issue isn't being raised as a
 hypothetical question. It is being argued as a basis for
 denying same-sex couples the right  to marry now. I suspect
 the reason why some members of this list used terms like
 fear mongering is because discrimination against

RE: Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Berg, Thomas C.]

Thanks, Alan.  I used the wedding photographer case just to make the point that 
people may be willing to go after an objecting religious organization even if 
they don't really intend or need to use it.  As for the case itself, I'd say 
two things.  First, it's questionable whether they should be considered public 
accommodations in the first place.  Second, although a statutory exemption for 
commercial businesses in general would be troublesome, I think that courts 
could determine in particular cases -- for example under a RFRA like New 
Mexico's, applicable in the photographer case -- that there is no compelling 
interest because they are not basic services like food or lodging and there are 
plenty of alternative service providers.

I agree with Alan that both sides may be able to protect their autonomy 
interests better if they accept compromises on these issues rather than try for 
the overwhelming win.

-
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, 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) 962-4996
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
Sent: Tuesday, April 07, 2009 1:39 AM
To: Law  Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court   
RulingOnMarriageUpholdsReligious Liberty, Says Americans United

I understand Tom's point, but I think there is real difference between a live 
and let live attitude toward houses of worship and nonprofit groups engaged in 
religious activities and discrimination by commercial service providers. I have 
argued that a good analogy for same-sex marriage and other gay rights issues 
would be the way our society handles discrimination on the basis of religion. 
There isn't a perfectly clean line here, and I might well think that wedding 
photographers should be able to decline contracts on religious grounds, but I 
know that I feel very differently about a religious organization discriminating 
against me or my family on religious grounds and a restaurant, motel or resort 
refusing to provide my family services because we are Jews.

As for Tom's point that religious exemptions and accommodations should extend 
beyond protecting churches and clergy from having to host or officiate over 
ceremonies that violate the tenets of their faiths, I agree. I only wrote about 
marriage ceremonies because that was the focus of this thread. Other exemptions 
and accommodations will also deserve support although I think it would probably 
be better to work out the range of issues through statutory law rather than 
specific constitutional language.

But a live and let live attitude has to be mutual if it is going to be 
successful. If same-sex marriage proponents accept accommodations to protect 
the autonomy of religious institutions and individuals, will that make any 
difference to opponents of same-sex marriage. Or will the opponents of same-sex 
marriages refuse to change their position even if substantial steps are taken 
to safeguard the liberty of faith communities that believe that such marriages 
are immoral. I strongly support the right of same-sex couples to marry, but I 
keep urging both sides in this dispute to recognize that the best way to 
convince people to respect your autonomy rights is to demonstrate that you are 
willing to respect their rights.  I would like to hear more people who oppose 
same-sex marriages making the same argument.

As Doug Laycock said in an earlier post, people who are willing to support this 
kind of a position have to start speaking up -- and now would be better than 
later.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Monday, April 06, 2009 7:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court   
RulingOnMarriageUpholdsReligious Liberty, Says Americans United

I agree that it is extremely unlikely that an objecting church or clergyperson 
will be forced to host or perform a same-sex marriage.  But I wouldn't rest 
this on the argument that no couple would seek to be married by someone who 
doesn't want to marry them.  After all, it's a good question why any couple 
would want, from all the wedding photographers available, one who [in Alan's 
terms] thinks their relationship is sinful and is only [conceiving and shooting 
the pictures] under threat of legal sanction

RE: Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Berg, Thomas C.]

I agree that it is extremely unlikely that an objecting church or clergyperson 
will be forced to host or perform a same-sex marriage.  But I wouldn't rest 
this on the argument that no couple would seek to be married by someone who 
doesn't want to marry them.  After all, it's a good question why any couple 
would want, from all the wedding photographers available, one who [in Alan's 
terms] thinks their relationship is sinful and is only [conceiving and shooting 
the pictures] under threat of legal sanction.  To subject Elaine Huguenin, the 
photographer, to a legal sanction of $6,600-plus, all Vanessa Willcock and her 
partner had to do was complain to the New Mexico Human Rights Commission on the 
ground that they felt shocked, angered, saddened, and fearful when Elaine 
told them she didn't do same-sex ceremonies.  It is hard to deny that some 
gay-rights proponents want to get antidiscrimination sanctions against 
conscientious objectors whose services they wouldn't actually!
  want, or need, to use.  That may not extend to forcing houses of worship to 
marry people, but not because of a general live and let live attitude.

I applaud Alan's proposal for an exemption in the next California proposal, but 
why shouldn't the exemption be broader?  The hypothetical church pressured to 
perform a ceremony hardly exhausts the range of religious liberty issues raised 
by same-sex marriage.  Without significant exemptions, the advent of same-sex 
marriage in a state increases the prospect that non-profit religious schools 
and social services, even those with religious content throughout their 
programs, will be punished if they refuse to hire openly gay people as teachers 
or counselors or to pay benefits to their partners.  It may do this by directly 
triggering the obligation to pay spousal benefits, by changing the legal 
characterization of a hiring decision from marital-status discrimination to 
sexual-orientation discrimination, or by strengthening the claim that -- like 
race in Bob Jones -- there is a firm [governmental] policy against 
sexual-orientation discrimination in virtually every context.

-
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, 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) 962-4996
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
Sent: Saturday, April 04, 2009 6:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court   
RulingOnMarriageUpholdsReligious Liberty, Says Americans United

As a hypothetical question, I think there is an extraordinarily slight 
possibility that churches or clergy will ever be required to host or officiate 
the marriages of same sex couples. But this issue isn't being raised as a 
hypothetical question. It is being argued as a basis for denying same-sex 
couples the right  to marry now. I suspect the reason why some members of this 
list used terms like fear mongering is because discrimination against gays 
and lesbians isn't speculative. It is real, ongoing, and hurtful. And is 
frustrating to hear people defend this discrimination on the basis of such a 
remote possibility in some future world that doesn't come close to existing now.

When I talk to people who are starting to prepare for the next constitutional 
amendment on same-sex marriage in California -- one that will be drafted by 
proponents of same-sex marriages -- there is a general consensus that one of 
the reasons Proposition 8 passed was that its supporters convinced people who 
didn't know any better that there was a real threat that their pastors and 
priests would be forced to marry same-sex couples. Virtually everyone I talk to 
is looking for ways to defuse this issue because they think it is false. No one 
wants to be married in a church that condemns their relationship by a member of 
the clergy who thinks their relationship is sinful and is only officiating at 
the ceremony under threat of legal sanction.

I am recommending that this new amendment recognizing the validity of same-sex 
marriages should include a provision guaranteeing that no member of the clergy 
or house of worship can be required to officiate over or host such a ceremony. 
I haven't met a single person who opposes that idea. Many think it is 
unnecessary because such compulsion is already prohibited by the First 
Amendment. But they still support the idea because it may make same-sex 
marriages seem less threatening to some voters -- and because no 

RE: Religious freedom and 42 USC 666

[Berg, Thomas C.]

Alan, I take your point, but would the objection to a statement and its 
symbolic effect be based on non-establishment rather than free exercise?  A 
non-establishment argument seems quite plausible in your hypo where the 
statement, X is a false faith, is a facially religious assertion, but is it 
plausible if the criticism is just of a group's temporal activities?  When the 
San Francisco board of supervisors adopted the resolution condemning groups 
that oppose homosexuality and the groups sued to challenge the resolution, did 
they state a free exercise as well as a non-establishment claim?  Nearly all of 
the court's serious discussion was on the Establishment Clause.  See American 
Family Assn. v. San Francisco, 277 F.3d 1114 (9th Cir. 2002).
 
Tom



From: [EMAIL PROTECTED] on behalf of Brownstein, Alan
Sent: Fri 8/1/2008 12:34 AM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Tom, I tend to agree with you and Doug, but I think your description of Bowen 
v. Row is broader than the the way I would characterize it -- although the 
difference may be hair splitting. I think the idea behind Bowen v Roy isn't 
that a litigant can't challenge how the government has acted in its own 
operations, but that a litigant can't challenge how the government has acted in 
its own operations to avoid a kind of spiritual harm that has no real or 
secular world ramifications. I'm not certain that we can never challenge what 
the government calls its own laws. If the government used language in a law 
that stigmatized a particular religion -- an exemption or accommodation made 
available for members of false faiths (who use peyote in religious ceremonies 
or observe Saturday as the Sabbath) -- we might insist that the government 
change the language it uses to describe the accommodation because of the 
symbolic or status harm that it causes. But the alleged harm that results fr!
 om being indirectly associated with the mark of the beast is different.

I think that the government is acting in its own sphere in Lyng, but it is also 
doing something to the Native Americans' ability to practice their faith that 
has a tangible, secular dimension to it -- and that distinguishes it from, and 
makes it  a more difficult case than, Bowen v. Roy where the harm can only be 
understood in spiritual terms.

Alan Brownstein
UC Davis School of Law


From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Berg, Thomas C. [EMAIL 
PROTECTED]
Sent: Thursday, July 31, 2008 7:55 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

Eugene, I think one can cut the cases the way you did; but one can also cut 
them the way I and Doug suggested.  To satisfy the Roys' objection to providing 
the social security number, the government would have had to let them do 
something different (not provide the number).  To satisfy Sherrod's objection, 
all the government has to do is renumber the statute; then it can require him 
to do exactly the same thing (pay the money).  In that sense, Sherrod's 
objection is not to what he's being required to do, but to how the government 
has acted in its own operations (how it numbers a statute).  I think that this 
characterization, bringing the case within Roy, is preferable because it 
explains the intuition that the government should win without resting on the 
problematic rationales that (a) the government must/can show a compelling 
interest/ least restrictive means in this instance -- i.e. it would be really 
hard to renumber this statute -- or (b) the claim is insincere or a mist!
 aken scriptural interpretation.  Doesn't this eliminate the seeming puzzle in 
the case without creating any problems?

My point overlaps with Doug's -- a regime allowing free exercise objections to 
what the government calls its laws is not manageable -- but it's narrower.  I 
think that Nothwest Indian v. Lyng can be seen as the government doing 
something to the Native Americans, and not just as acting in its own sphere.

Tom Berg
University of St. Thomas School of Law (Minneapolis)




From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Thu 7/31/2008 5:57 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Well, I thought about Bowen v. Roy, but my sense is that the
internal procedures point there was that the Roys weren't required to
actually do anything that violated their religious beliefs (the
government had stopped demanding that they provide Roy's social security
number, and five Justices took the view that the government indeed had a
constitutional obligation to so stop).  The Roys just thought that the
government's practice of giving Roy a number was spiritually harmful.

Here, the claimant seems to be arguing not that it's bad for the
government to have a section 666

RE: Religious freedom and 42 USC 666

[Berg, Thomas C.]

To the extent that he objects to paying the support even if the provision is 
renumbered, because the requirement is of the antichrist and the 666 simply 
evidences that, then I assume most courts would hold there's a burden but it's 
overcome by a compelling interest.  To the extent he says his objection would 
be cured by renumbering the provision, then doesn't this seem like Bowen v. Roy 
-- and therefore not a cognizable burden -- in that the numbering of a statute 
is a matter of the government's internal procedures like the assignment of a 
social security number in Roy?  If renumbering the provision would meet the 
objection, then the objection seems separable from the payment requirement 
itself and thus (arguably) concerns an internal government matter.  It's not 
clear how much the Roy principle applies to RFRAs, but this might be the 
explanation for rejecting his claim that fits best into the previous law.
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 



From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Thu 7/31/2008 5:19 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Jean Dudley writes:

  As to the rest of the argument below, I don't think it
 can work under
  Thomas v. Employment Division.  It is not for a court to
 decide what's
  the best reading of Revelations, or whether the federal
 statute indeed
  sufficiently bears the mark of the beast, or whether mark of the
  beast should be read literally -- just as it's not for a court to
  decide whether someone who refuses to eat meat and milk is properly
  interpreting Thou shalt not seethe a kid in his mother's milk, or
  whether someone who refuses to work on tank turrets is properly
  interpreting his religion's commands of pacifism (that's the Thomas
  case itself).  The question is whether Sherrod's religious
 belief is
  sincere, not whether it's a sensible interpretation of the Bible.

 Yes, I suppose that is a valid reason.  In that case,
 sincerity shouldn't matter either, should it?  The law is the
 law, regardless of the sequential number assigned to it. 
 Moral obligation to uphold the law (in this case pay child
 support, and of course the moral obligation to pay child
 support as well) should over ride religious sincerity.  In
 short, do the right and legal thing even if it is to an
 agent/agency of Satan.

That's a perfectly plausible conclusion -- in fact it is the
conclusion the Court reached in Smith.  But federal and state RFRAs, and
state constitutional provisions that have been interpreted as
implementing a Sherbert-like regime, expressly assume the opposite.  So
the question is how the case should come out under those regimes.
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RE: Religious freedom and 42 USC 666

[Berg, Thomas C.]

Eugene, I think one can cut the cases the way you did; but one can also cut 
them the way I and Doug suggested.  To satisfy the Roys' objection to providing 
the social security number, the government would have had to let them do 
something different (not provide the number).  To satisfy Sherrod's objection, 
all the government has to do is renumber the statute; then it can require him 
to do exactly the same thing (pay the money).  In that sense, Sherrod's 
objection is not to what he's being required to do, but to how the government 
has acted in its own operations (how it numbers a statute).  I think that this 
characterization, bringing the case within Roy, is preferable because it 
explains the intuition that the government should win without resting on the 
problematic rationales that (a) the government must/can show a compelling 
interest/ least restrictive means in this instance -- i.e. it would be really 
hard to renumber this statute -- or (b) the claim is insincere or a mist!
 aken scriptural interpretation.  Doesn't this eliminate the seeming puzzle in 
the case without creating any problems?
 
My point overlaps with Doug's -- a regime allowing free exercise objections to 
what the government calls its laws is not manageable -- but it's narrower.  I 
think that Nothwest Indian v. Lyng can be seen as the government doing 
something to the Native Americans, and not just as acting in its own sphere.
 
Tom Berg
University of St. Thomas School of Law (Minneapolis)
 



From: [EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Thu 7/31/2008 5:57 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666



Well, I thought about Bowen v. Roy, but my sense is that the
internal procedures point there was that the Roys weren't required to
actually do anything that violated their religious beliefs (the
government had stopped demanding that they provide Roy's social security
number, and five Justices took the view that the government indeed had a
constitutional obligation to so stop).  The Roys just thought that the
government's practice of giving Roy a number was spiritually harmful.

Here, the claimant seems to be arguing not that it's bad for the
government to have a section 666 in its statutes, but that it violates
his religion to comply with orders issued under that section.
Presumably, if the government copied or moved this to section 777, then
he'd be OK with complying, not because the government changed its
internal procedures, but because the action that he would be required to
do would no longer be pursuant to a statute numbered with the number of
the beast.  So that seems different from Bowen v. Roy, no?

Eugene

Tom Berg writes:

 To the extent that he objects to paying the support even if
 the provision is renumbered, because the requirement is of
 the antichrist and the 666 simply evidences that, then I
 assume most courts would hold there's a burden but it's
 overcome by a compelling interest.  To the extent he says his
 objection would be cured by renumbering the provision, then
 doesn't this seem like Bowen v. Roy -- and therefore not a
 cognizable burden -- in that the numbering of a statute is a
 matter of the government's internal procedures like the
 assignment of a social security number in Roy?  If
 renumbering the provision would meet the objection, then the
 objection seems separable from the payment requirement itself
 and thus (arguably) concerns an internal government matter. 
 It's not clear how much the Roy principle applies to RFRAs,
 but this might be the explanation for rejecting his claim
 that fits best into the previous law.
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RE: Religious exemptions for the non-religious

[Berg, Thomas C.]

Atheism and agnosticism should be considered religions for free exercise
purposes because, as Doug has argued in print, we would regard them as
religions for establishment purpose -- if the government set up a Temple of
Atheism or schools taught officially that God does not exist.  If one takes
the constitutional text seriously, its use of religion only once for both
clauses demands this kind of symmetry -- and I think that in this case
textualism  performs a useful service in disciplining interpretation.

 

I agree with Alan that often it will be hard to tie the atheist or
agnostic's moral code to his or her non-belief in God.  But not always.  For
example, I think that Seeger, Welsh, and others like them could quite
plausibly ground their refusal to kill in their explicit non-belief or
profound doubt about God and the afterlife.  Believing that this life is all
there is can easily generate the belief that it is the highest value and
thus an absolute refusal to kill.  But conversely, this kind of argument
doesn't extend to all deeply held moral beliefs that might conflict with
law. 

 

Following up on another of Alan's points: The broader claim that deeply held
moral positions in general (not just non-theist religious positions like
atheism or agnosticism) must be treated the same as religion has several
problems.  One is that proponents of this claim typically do not carry it
through on the establishment side, where they advocate special limits on
government promotion of religion that do not apply to promotion of
non-religious moral positions.  Chris Eisgruber and Larry Sager's new book
is an example.  They reiterate their influential case against treating
freedom of religious exercise more favorably than freedom for deeply held
non-religious moral positions.  But then they defend the distinctive
establishment clause limits on government religious symbolism by arguing
that for government to endorse a religious view or views is especially
damaging to others because religious affiliation typically implicates an
expansive web of belief and conduct, individuals often feel and are seen
as either 'in' or 'out' of such webs, and the perceived and actual stakes
of being [in or out] can be very high, including being fulfilled and
redeemed or eternally damned.  It seems plain to me that every single one
of these rationales also supports special concern for freedom of religious
exercise and thus undercuts their position on the free exercise side.  .

 

Tom Berg, University of St. Thomas (Minnesota)

 

 

+++

 

I think Perry is correct that there are good, normatively compelling reasons
for exempting only believers - but I wouldn't say of course this is so. I
often respond to the argument that there is no reason to treat religion
differently than secular beliefs for the purpose of creating conscience
based exemptions by asking whether there is a reason for distinguishing
between religious and secular beliefs for Establishment Clause purposes ---
and whether we should look at the religion clauses holistically with regard
to the distinctions they draw between religion and secular beliefs.

 

But Doug's comment that it is encouraging for courts to treat atheism as a
religion should not be so easily dismissed. First, when Perry notes that for
certain purposes including rights of expression, religious and
anti-religious views need to be treated equally, that may be a very large
category. The exercise of religion often has a religious dimension to it -
and the Court has consistently declined the opportunities presented to it to
develop a working demarcation line between religious exercise and speech.

 

Second, we have no working definition of religion for constitutional
purposes that will help us to distinguish conscientiously held moral and
ethical beliefs from conscientiously held religious beliefs. If a person
seeking an exemption contends that the ethical commitments he adheres to are
religious in nature - even though the person does not believe in G-d --
because these moral precepts are inherent in nature or history or whatever
else the person uses as a foundation for his morality, does he receive an
exemption? 

 

Also, and this is probably only a semantic point, one of my problems with
talking about the judicial recognition of atheism as a religion is that
the only core belief of an atheist that he or she shares with other atheists
is that they do not believe in G-d. I am not sure that there are all that
many situations where a person's commitment to that belief alone conflicts
with law and requires special accommodation. The harder question for me is
evaluating the moral basis for the conscientious decisions of atheists. I
would probably call those beliefs a non theistic moral code or philosophy -
but I'm not sure the choice of terminology makes much of a substantive
difference. The argument would be that denying the existence of G-d is a
religious belief - but the adherence to a 

RE: Religious exemptions for the non-religious

[Berg, Thomas C.]

I'm not sure what the denial of physics means.  Doesn't one deny (or
affirm) a particular proposition or set of propositions about physics?
Similarly, it seems to me that there is a recognizable usage of religion
that includes varying positions on the ultimate questions such as the
existence of a deity (deities) or the afterlife -- including the negative
answers -- although there's also a commonly used sense in which religion
includes only the positive answers of various sorts.  So I guess I'd say
that the first usage, in addition to being a better fit for the logic of the
two religion provisions, is also more than just a usage made up for that
purpose.  I agree that one is far less likely to exercise the
negative-answer beliefs, but as I said in the previous post I think there
are instances in which they too are exercised.
 
Tom Berg
 
__
 
 
 
In a message dated 3/1/2007 4:06:41 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:

Atheism and agnosticism should be considered religions for free exercise
purposes because, as Doug has argued in print, we would regard them as
religions for establishment purpose 

It might be the right approach to consider atheism a religion for
FE and EC purposes, just as long as we make it clear that, in fact, atheism
is no more a religion than the denial of physics is physics. Constitutional
necessities might require distorting ontology for important reasons, but it
does not change ontology by doing so.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:   http://ratiojuris.blogspot.com/
http://ratiojuris.blogspot.com/
Essentially Contested America, Editor:
http://www.essentiallycontestedamerica.org/
http://www.essentiallycontestedamerica.org/ 



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RE: Question from a reporter

[Berg, Thomas C.]

A non-numerical, ironic aspect of this:  The breakaway congregations, now
and in the earlier rounds, have tended to be conservatives unhappy with
liberal denominational moves.  If they succeed in court against the larger
organizations to whose decisions they object, they tend to make law such as
Jones v. Wolf that is harmful to the protection of religious organizational
autonomy against state (in this case court) interference.  Yet conservative
faiths also tend to have the most conflicts between their organizational
autonomy and government regulation in other contexts, such as suits by
clergy, other employees, or members.  There are distinctions between church
property and other contexts, especially ministerial disputes, and Jones v.
Wolf so far has had little effect on church autonomy in ministerial cases.
But successes by conservative Christians in the property cases hurts the
freedom of conservative Christians in other cases, where Jones v. Wolf has
had more effect. 

Tom Berg, University of St. Thomas School of Law (Minnesota)

 

__

 

 

A comment from Marc Stern, who is having access problems with the list.  His
view sounds right to me.

From: Marc Stern 
Sent: Thursday, February 08, 2007 9:57 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Question from a reporter



The number if churches torn apart over doctrinal issues-mostly but not
exclusively abortion and gay rights- is on the upswing and so it is not
surprising that there are more church property disputes. Whatever
increase there is in litigation is probably more due to the number of
doctrinal disputes than anything in the case law. The  last upsurge in
cases in the late 70's came about as a result of the move to ordain
women.

Marc Stern



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Casebook Question

[Berg, Thomas C.]

I've just resubscribed to the list, having been taken away for a while by
other commitments.  I understand from the message below that Dr. Buck has
asked where a table of contents for the McConnell, Garvey, Berg casebook
Religion and the Constitution can be found.  This link should work
(apologies if someone has already posted it or something like it):
 
http://www.aspenpublishers.com/Product.asp?catalog%5Fname=Aspen
http://www.aspenpublishers.com/Product.asp?catalog%5Fname=Aspencategory%5F
name=product%5Fid=0735561370Mode=SEARCHProductType=T
category%5Fname=product%5Fid=0735561370Mode=SEARCHProductType=T
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 
 
 
As for Professor Laycock's recommendation of *Religion And the 
Constitution* by Michael W. McConnell, John H. Garvey, and Thomas C. 
Berg, Amazon.com has no table of contents for it http:// 
www.amazon.com/Religion-Constitution-Michael-W-McConnell/dp/0735561370.

So my question for Professor Laycock is: How is *Religion And the 
Constitution* superior to its competitors? What new features does it 
offer? And does it equip students with the relevant analytical 
skills? I'd like to know, if I ever have the same opportunity as 
Professor  Janssen.

Best,

Christopher Buck

*   CHRISTOPHER BUCK, Ph.D., J.D. //Author// http://www.msu.edu/~buckc
http://www.msu.edu/~buckc 
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RE: The Roberts Court

[Berg, Thomas C.]

Direct aid to religious schools and institutions in general: there may be
five votes now for the Thomas plurality opinion in Mitchell v. Helms that
(at least) direct aid on an equal per-capita basis is permissible.  The
direct-aid  vs. private-choice distinction has been relevant in litigation
in the last five years with respect both to education programs (e.g.
Columbia Union College, 4th CIr.) and to social services programs (e.g.
Faith Works case, 7th CIr.), suggesting that a program that tested the
contours or continuing validity of the distinction may be litigated soon.
 
Tom Berg
University of St. Thomas School of Law (MInnesota)

  _  

From: Marc Stern [mailto:[EMAIL PROTECTED]
Sent: Tue 7/25/2006 9:01 AM
To: Law  Religion issues for Law Academics
Subject: RE: The Roberts Court



I would add that an early Establishment Clause challenge to RLUIPA's 
land use provisions seems likely, as does  renewed litigation about 
charitable choice-i.e., the Iowa prison litigation. Perhaps too the 
Court will look at the growing split about the ministerial exception to 
Title VII. 
Marc Stern 

-Original Message- 
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] On Behalf Of Volokh, Eugene 
Sent: Tuesday, July 25, 2006 9:45 AM 
To: Law  Religion issues for Law Academics 
Subject: RE: The Roberts Court 

I'd think that the government religious speech cases might be coming 
back, because the last attempted resolution (in the Ten Commandments 
cases) is likely to prove quite unadministrable, and because there's a 
decent chance that now there are five votes to jettison the endorsement 
test. 
  
Eugene 


 

From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] On Behalf Of Tepker, Rick 
Sent: Tuesday, July 25, 2006 5:38 AM 
To: religionlaw@lists.ucla.edu 
Subject: The Roberts Court 


What issues concerning the First Amendment's religion 
clauses are likely to be the earliest to come before the Roberts Court? 
I'd appreciate any predictions or guesses from the list. 

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RE: Substantial burden on religious freedom and placing acopy of the Koran in toilet

[Berg, Thomas C.]

School address would be good.

  _  

From: Steven Jamar [mailto:[EMAIL PROTECTED]
Sent: Wed 5/10/2006 5:53 PM
To: Law  Religion issues for Law Academics
Subject: Re: Substantial burden on religious freedom and placing acopy of
the Koran in toilet


Let me get this straight.  It is ok to physically and psychologically abuse
and even torture prisoners in general (position of the administration, not
yet declared unconstitutional), but it is a violation of their religious
rights to abuse the Koran? 

I sincerely doubt that.



-- 

Prof. Steven D. Jamar vox:  202-806-8017

Howard University School of Law fax:  202-806-8567

2900 Van Ness Street NW   mailto:s mailto:s
[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 

Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
http://www.law.howard.edu/faculty/pages/jamar/ 




To see a World in a Grain of Sand 

And a Heaven in a Wild Flower, 

Hold Infinity in the palm of your hand 

And Eternity in an hour. 




William Blake



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RE: Sabbatarians and deadlines

[Berg, Thomas C.]

A few reactions:
 
1. Would courts see this as a Braunfeld v. Brown case?  I.e. one in which
the state's rule does not directly conflict with (i.e. visit some legal
consequence as a result of) the religious duty -- as the Sunday closing law
did not directly conflict with the Orthodox shopkeepers' Saturday Sabbath
duty  -- but rather the state's rule interacts with the religious duty to
make it, indirectly, more costly to follow the latter (in that case,
effectively meaning that the Orthodox business has to be closed two days a
week instead of one).  Braunfeld said that indirect burdens like this
don't trigger strict scrutiny, in part because of the sort of parade of
horribles that Steve Jamar raises.  I can see differences between this case
and Braunfeld, but the indirect-direct distinction would cut off the parade
of horribles, and it would explain much of the pattern of accommodations
Steve describes (changed or alternate days for a competition, test, or
meeting itself, where otherwise religious duty would directly prevent the
student from participating).
 
2. But if Eugene's hypo is as strict as he says, i.e. that students need the
whole time allocated to complete the exam/competition, then the burden looks
direct -- creating an absolute conflict rather than simply making it more
difficult or complicated for the religious believer to put in as much time
as others (requiring some choices of the believer, somewhat less sleep,
etc.).  The strictness of the hypo becomes more plausible as the relevant
time period is shorter.  The lost day makes up a greater percentage of a
shorter time period; the cost of one lost day can be more easily spread over
five or six other days than over two others.  As the time available for
cost-spreading is shorter, the burden surely at some point becomes direct,
analogous to Sherbert rather than Braunfeld (e.g. imagine a 24-hour
take-home in which 18 of the hours allocated were on the student's Sabbath).
 
3. RFRA may replace a flat direct/indirect distinction with a case-by-case
analysis of the seriousness of the burden.  That might be more consistent
with the statutory term substantial burden (and I don't believe that
RFRA's legislative history positively referred to Braunfeld as it positively
referred to Lyng v. Nw. Indian Cemetery Prot. Assn., another pre-Smith case
interpreting cognizable burdens narrowly).  If this is the right
interpretation of RFRA, there's plenty of room for a court to differentiate
among the burdens involved in shorter and longer time periods.
 
4. Sherbert later read Braunfeld as resting also on the interest in having a
uniform day of rest.  Whatever one thinks of that rationale (and of course
the day of rest has more of a religious background than this policy does),
the need for uniformity  seems even weaker in the case of a take-home exam
or competition (why can't different students pick up and return them at
different times, as is often done with exams and competitions?).  There
might be a different state interest here against giving a student an extra
day:  the state might worry that even if the student is not physically
working on the exam on the Sabbath, he or she could be thinking about it and
thereby gaining an advantage (however conscientious one might be, it could
be hard to keep the problem out of one's head).  In the case of the
three-day exam, there is an easy less restrictive alternative:  allow the
student to take it over three days that don't include the sabbath (there's
no problem with that except the weak interest in uniformity).  Even a
six-day period can be largely tailored to individual situations, now that
assignments can be (and so often are) given out and submitted
electronically.  But for an assignment of a week or longer, avoiding the
Sabbath isn't an option.  Together with the greater ease of time-spreading,
it seems to me this makes the case for a compelled exemption weaker in the
week-long case -- even if it might be a good idea for the school to
accommodate in that situation as well.
 
My bottom line is that, as in most other exemption cases, there are sensible
distinctions that can be made that neither reject all exemption claims nor
grant them all.
 
Tom Berg
University of St. Thomas (Minnesota)
 
 
 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Mon 3/27/2006 11:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: Sabbatarians and deadlines


I sympathize with Steve's general argument, but I wonder how it fits
within the RFRA framework.  Is it that having five days instead of six -- or
two days instead of three -- isn't a substantial burden?  That it is a
burden, but denying the exemption passes strict scrutiny?  That despite the
RFRA language, some test other than strict scrutiny applies?

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Monday, March 27, 2006 8:01 AM
To: Law  Religion issues for Law Academics
Subject: Re: 

RE: Locke v. Davey Question

[Berg, Thomas C.]

In the amicus brief that Doug Laycock,
Greg Baylor, and I filed in Davey,
we argued that this kind of determination (whats objective
enough and whats too devotional) would entangle the state
in discretionary, theologically sensitive questions and constituted another
strike against the Washington exclusion (in addition to its being
discriminatory and an unconstitutional condition). We didnt know then
what the state did with Gonzaga  we used out-of-state examples of
schools whose theology departmental statements of purpose combine a significant
faith orientation with a degree of historical/critical study  and I
still dont know.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: Douglas Laycock
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday, January 11, 2006
9:59 AM
To: Law  Religion issues for
Law Academics
Subject: RE: Locke v. Davey
Question



To particularize the
question, what do they do with Gonzaga?







Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX 78705

 512-232-1341 (phone)

 512-471-6988 (fax)















From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Rick Duncan
Sent: Wednesday, January 11, 2006
9:51 AM
To: Law  Religion issues for
Law Academics
Subject: Locke v. Davey Question



This is a factual question about Washington's denial
of Promise Scholarship funding to students, like Josh Davey, who are
pursuing a degree in devotional theology.











Does anyone know whether Promise Scholars at Catholic
universities in Washington are denied funding if they major in theology or
religious studies? In other words, if a school like Notre Dame were located in
Washington, would its theology students be disqualified from the Promise
Scholarship Program because theology is taught from a devotional
perspective? Or is their approach sufficiently objective to escape
exclusion as devotional?











What about a school like Yale and it's Divinity
studies program? Eligible for funding because not devotional?











Rick









Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902 










When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone. C.S.Lewis, Grand Miracle

I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
numbered. --The Prisoner











Yahoo! Photos
Ring in the New Year with Photo
Calendars. Add photos, events, holidays, whatever.








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RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

I'll just credit Professor Newsom with noting that the EAA can have
disparate impacts, and I'll retire from the discussion.

  _  

From: Newsom Michael [mailto:[EMAIL PROTECTED]
Sent: Wed 11/9/2005 11:01 AM
To: Law  Religion issues for Law Academics
Subject: RE: FYI: An Interesting See You at the Pole Case



And you still overreach with a straw man argument.  I have taken no position
on the desirability of amending EAA.  Why can't you understand that?

 

  _  

From: Berg, Thomas C. [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 5:28 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting See You at the Pole Case

 

I'm not withdrawing anything; I said in the article that your point about
the disparate impact was well taken, but that it would be better to expand
the EAA than to use any disparate impact as a basis for repealing it.  If
you agree with that, great.  I must say, though, that your strong and
repeatedly expressed opposition to Protestant student clubs - which would
still exist even if Catholic students could celebrate mass - led me to think
(quite reasonably I believe) that you'd probably still support repeal of the
Act even then.

 

---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN  55403-2015

Phone: (651) 962-4918

Fax: (651) 962-4996

E-mail: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 

---

 

 

 

-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 4:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: FYI: An Interesting See You at the Pole Case

 

It is far too early to determine whether the communion issue will gain
traction in the Church.  There are, as near as I can tell, far more bishops
opposed to denying communion than there are those willing to do so.  Burke
and Chaput don't have a lot of company on this matter, at least not yet, and
not publicly.  And, in any event, I am not sure that the point of denying
communion is to drive liberals out of the Church, although, for some, it
might be.  Discipline and expulsion are not the same thing.

 

Traditionalist Catholics may or may not run the Church.  47% of American
Catholics voting in the 2004 election voted for Kerry.  Again, time will
tell whether the Church decides to become an arm of the Republican Party.
My hunch is that it will not, but I could be wrong and the Republicans are
trying very hard to make it happen.

 

It is always possible that traditionalists will overplay their hand.
Interest convergence is just that, a temporary state of affairs.  The large
claim that agreement on social issues trumps disagreement on theological
issues remains to be proven.  And it certainly remains to be proven that the
Church will proclaim that such an agreement is an indispensable element of
being Catholic.

 

On the first point, I will simply refer to the footnote in your article in
which you grant that my concerns about EAA and the Church might have some
merit.  Maybe you are withdrawing that footnote.  Second, why would you
conclude that I would not support an EAA which allowed priests to celebrate
Mass at the behest of a Catholic student group?   That argument is clearly
out of bounds.  My objection has always been to EAA as it exists.  Why the
resort to a straw man? 

 

  _  

From: Berg, Thomas C. [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 4:44 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting See You at the Pole Case

 

Just to be clear:  I don't think that this disparate impact (Protestant
student-led worship services protected by the Act, Catholic masses not
protected) warrants Catholics opposing the EAA.  For several reasons:  (1)
There are lots of other things that Catholic student groups might do that
the Act would protect.  (2) The Act doesn't bar student clubs that fall
outside of its parameters; it simply doesn't give them statutory protection,
and they fall back (as Doug noted) on the First Amendment, which might well
protect the mass if other student groups are allowed to have non-school
adults participate in any of their events.  (3) It would be better for free
speech and civil liberties if the Act were extended to encompass the
Catholic mass than if it were repealed to leave every student club equally
without statutory protection against content-based discrimination. 

 

On the more general issue about traditionalist Catholics making common cause
with conservative Protestants:  I suppose, to answer Professor Newsom, that
one piece of evidence that the Catholic Church might be willing to lose
members in order to save unborn children is the move by several bishops
(with some encouragement from the new Pope

RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

Just to be clear: I dont
think that this disparate impact (Protestant student-led worship services
protected by the Act, Catholic masses not protected) warrants Catholics opposing
the EAA. For several reasons: (1) There are lots of other things
that Catholic student groups might do that the Act would protect. (2) The
Act doesnt bar student clubs that fall outside of its parameters; it simply
doesnt give them statutory protection, and they fall back (as Doug noted)
on the First Amendment, which might well protect the mass if other student
groups are allowed to have non-school adults participate in any of their events.
(3) It would be better for free speech and civil liberties if the Act were extended
to encompass the Catholic mass than if it were repealed to leave every student
club equally without statutory protection against content-based discrimination.




On the more general issue about traditionalist
Catholics making common cause with conservative Protestants: I suppose,
to answer Professor Newsom, that one piece of evidence that the Catholic
Church might be willing to lose members in order to save unborn children
is the move by several bishops (with some encouragement from the new Pope) to
deny communion to vigorously pro-choice politicians. Calls for such
denials are often accompanied by arguments that the Church has become too lax
on fundamental moral teachings, and on disciplining members who stand against
them, and that it needs to become more sectarian and disciplined
on this even if that results in a smaller Church. I wouldnt claim
that the move to deny communion reflects a view that objection to
abortion is deeper than the liturgy; but as read the
arguments, it does reflect a view that whether one is eligible to receive the
sacrament, and thus be in communion with the Church, cannot be entirely
separated from whether one is in communion with the Churchs position on
fundamental moral issues.



Of course, only a few bishops to date have
indicated they will refuse communion in this way  which might show that
the Church as a whole does not treat abortion as so non-negotiable.
However, my claim was never that *all*
Catholics, or the Church as a whole, were aligning with evangelicals based on
issues like abortion. My claim was only that *traditionalist* Catholics are doing so in large numbers (helping
to produce a realignment of religious-political conflict from Catholic/Protestant
to traditionalist/progressive). That claim, I believe, gains further
support from the recent communion wars, because it is traditionalist Catholics
who have fueled the drive for bishops to take steps against pro-choice
politicians. The communion denials, which I imagine will only grow as an
issue, show that many traditionalist Catholics are quite willing to bring
abortion, a cultural-moral-political issue, to bear on the liturgy.



Tom Berg, University of St. Thomas (Minnesota) 









-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]] 
Sent: Tuesday, November 08, 2005
2:43 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case



Precisely the
point. And I want to credit Tom Berg for making much the same point in a
recent article. So I criticized the Church for supporting EAA without
thinking through the disadvantages that would result. Some think that
that criticism reflects a view of Catholicism that is essentially
mean-spirited, that if Catholics didnt support EAA then it meant that
they were anti- this or anti- that. That take on the matter is, of
course, utterly without merit. Why would any institution consciously
decide to follow a course of action that would weaken the organization?
The only answer (is this a scare quote?) is that somehow
weakening the institution is less important than advancing some other supposed
goal, all the while citing no authority to support such a contention.











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Monday, November 07, 2005
11:10 PM
To: religionlaw@lists.ucla.edu
Subject: Re: FYI: An Interesting
See You at the Pole Case









In a
message dated 11/7/2005 3:11:57 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:





Catholics cant do
that.







If
there is a weakness to the EAA, this is probably where it lies. 











The Act
disadvantages students forming religious clubs in ways that are different than
other types of organizations. It does this by subjecting religious groups
to the special restriction that they may only have custodial monitors (faculty
or staff whose principal interest is in insuring the safety and security of
propertty and persons) while other clubs can have sponsors (faculty and staff
whose principal interest may well be and often is in the subject area of the
club or in the service activities of the organization sponsored)).











Of
course, there may be religious observances that can be organized and led by
laity that are appropriate 

RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

Im not withdrawing anything; I said
in the article that your point about the disparate impact was well taken, but
that it would be better to expand the EAA than to use any disparate impact as a
basis for repealing it. If you agree with that, great. I must say,
though, that your strong and repeatedly expressed opposition to Protestant student
clubs  which would still exist even if Catholic students could celebrate
mass  led me to think (quite reasonably I believe) that youd
probably still support repeal of the Act even then.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]] 
Sent: Tuesday, November 08, 2005
4:09 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case



It is far too early to
determine whether the communion issue will gain traction in the
Church. There are, as near as I can tell, far more bishops opposed to
denying communion than there are those willing to do so. Burke and Chaput
dont have a lot of company on this matter, at least not yet, and not
publicly. And, in any event, I am not sure that the point of denying
communion is to drive liberals out of the Church, although, for some, it might
be. Discipline and expulsion are not the same thing.



Traditionalist
Catholics may or may not run the Church. 47% of American Catholics voting
in the 2004 election voted for Kerry. Again, time will tell whether the
Church decides to become an arm of the Republican Party. My hunch is that
it will not, but I could be wrong and the Republicans are trying very hard to
make it happen.



It is always possible
that traditionalists will overplay their hand. Interest
convergence is just that, a temporary state of affairs. The large claim
that agreement on social issues trumps disagreement on theological issues
remains to be proven. And it certainly remains to be proven that the
Church will proclaim that such an agreement is an indispensable element of
being Catholic.



On the first point, I
will simply refer to the footnote in your article in which you grant that my
concerns about EAA and the Church might have some merit. Maybe you are
withdrawing that footnote. Second, why would you conclude that I would
not support an EAA which allowed priests to celebrate Mass at the behest of a
Catholic student group? That argument is clearly out of
bounds. My objection has always been to EAA as it exists. Why the
resort to a straw man? 











From: Berg,
Thomas C. [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005
4:44 PM
To: 'Law  Religion issues for
Law Academics'
Subject: RE: FYI: An Interesting
See You at the Pole Case





Just to be clear: I
dont think that this disparate impact (Protestant student-led worship
services protected by the Act, Catholic masses not protected) warrants
Catholics opposing the EAA. For several reasons: (1) There are lots
of other things that Catholic student groups might do that the Act would
protect. (2) The Act doesnt bar student clubs that fall outside of
its parameters; it simply doesnt give them statutory protection, and
they fall back (as Doug noted) on the First Amendment, which might well protect
the mass if other student groups are allowed to have non-school adults
participate in any of their events. (3) It would be better for free
speech and civil liberties if the Act were extended to encompass the Catholic
mass than if it were repealed to leave every student club equally without
statutory protection against content-based discrimination. 



On the more general issue
about traditionalist Catholics making common cause with conservative
Protestants: I suppose, to answer Professor Newsom, that one piece of
evidence that the Catholic Church might be willing to lose members in
order to save unborn children is the move by several bishops (with some
encouragement from the new Pope) to deny communion to vigorously pro-choice
politicians. Calls for such denials are often accompanied by arguments
that the Church has become too lax on fundamental moral teachings, and on
disciplining members who stand against them, and that it needs to become more
sectarian and disciplined on this even if that results in a
smaller Church. I wouldnt claim that the move to deny communion
reflects a view that objection to abortion is deeper than
the liturgy; but as read the arguments, it does reflect a view that
whether one is eligible to receive the sacrament, and thus be in communion with
the Church, cannot be entirely separated from whether one is in communion with
the Churchs position on fundamental moral issues.



Of course

RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression

[Berg, Thomas C.]

I agree with Marty that the result in Santa Fe -- the case that Alito
allegedly discussed with Sen. Cornyn -- was to strike down speech that was
government preferred or sponsored, because of the majoritarian nature of the
election process and the school district's past practice.  But some of the
language of the Stevens majority opinion goes further and suggests that the
school's endorsement of the speech was established by other factors as
well, such as the mere fact that the prayer or religious speech was at a
school-sponsored function . . . on school property, with the trappings of
the school around it.  This reasoning, taken alone, would require stopping
even the valedictorian -- chosen neutrally on the basis of grades, with no
school review of the speech's content -- from speaking religiously at
graduation.  That's what happened in the panel decision in the Madison case
that Mark Scarberry describes (decided before Santa Fe, but on similar
reasoning).  It could also support the kind of argument in the Oliva case
that Eugene suggests bothers Alito.
 
I know that we have sharp disagreement on the list about whether the
valedictorian's speech should be protected or forbidden.  But the position
that it should be protected -- should be treated as individual rather than
state-sponsored speech -- couldn't colorably be said to be a major reversal
of the Court's precedents, or a central threat to the rule against
government-sponsored and government-preferred speech, could it?  (Even if
one disagrees with the position.)

I think that senators should ask about this, but they should try to find out
whether any reservations Alito has about the Santa Fe case go to the
holding, or to some of the broader reasoning and dicta.

Tom Berg, University of St. Thomas (Minnesota)



---
Thomas C. Berg
Professor of Law
Co-Director, Terrence J. Murphy Institute
 for Catholic Thought, Law, and Public Policy
University of St. Thomas School of Law
MSL 400 -- 1000 La Salle Avenue
Minneapolis, MN  55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: [EMAIL PROTECTED]
---
 
 
 

-Original Message-
From: Scarberry, Mark [mailto:[EMAIL PROTECTED] 
Sent: Friday, November 04, 2005 12:49 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostility
to Religious Expression

The Ninth Circuit has the impression that the Supreme Court's precedents
require discrimination against the religious speech of students. In Doe v.
Madison School District (for which I wrote an amicus brief), a panel of the
Ninth Circuit held that a school district could allow high school student
graduation speakers chosen on basis of their grade point average to express
themselves without censorship of religious or other content. The full 9th
Circuit granted rehearing, vacating the panel decision, and then dismissed
the case as moot because the student who had challenged the policy had
already graduated -- and the Ninth Circuit did so even though the student
had sued under a pseudonym and thus had control of whether or not to
disclose that he or she had graduated. 

In later cases the Ninth Circuit held that school officials must censor such
student speeches to remove objectionable religious content. I'd say that was
Lee v. Weisman on steroids, but nevertheless the Ninth Circuit had the
impression that such censorship was required by Supreme Court Establishment
Clause doctrine.

I must say that I am encouraged by Judge Alito's dissent in C.H. v. Oliva. 

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Friday, November 04, 2005 9:15 AM
To: Law  Religion issues for Law Academics
Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto
Religious Expression

I suspect that Alito's response was in large part a reaction to
two cases that he heard on the Third Circuit:  Child Evangelism
Fellowship of New Jersey Inc. v. Stafford Tp. School Dist., 386 F.3d 514
(3rd Cir. 2004), and C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000).

In both, the government's lawyers -- presumably not ones who are
easily duped by unrelenting rhetoric we hear from the right --
apparently argued that the Establishment Clause required government
entities to discriminate against private religious speech (i.e.,
religious speech by students or by private organizations, not religious
speech by school officials in their official capacity) in schools.  In
Oliva, the lower court seemed to at least partly endorse this view,
though its comments are a little cryptic.  (And of course in Oliva, the
Third Circuit ultimately concluded that the school was entitled to
discriminate against the religious speech, though it didn't hold that
such discrimination was required.)  I haven't read the briefs in those
cases, but if I were the government 

RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

I agree with Sandy thatissues
involving values that the Catholic Church supports arise often in statutory
contexts, which as I said perhaps should receive more attention than they do in
nomination debates. But constitutional issues get more attention, in part
because they're just better known (nota good reason) and in part for what
is a good reason: a statutory ruling is much easier to correct than is a
constitutional invalidation of a law, and a statutory ruling still leaves it
possible forhuman values that the Church supportsto be pursued
through the legislative process.



So I think it plays out as follows: There are several
areas of great concern to traditional Catholics,and even in some cases
Catholicprogressives, in which liberal justices are likely (or much more
likely)to vote that the human values that the Church emphasizes cannot be
pursued through the legislative process. These include protection of
unborn life, parental choice in education, the preferred status of traditional
opposite-sex marriage,opposition to euthanasia, and the general question
whether moral disapproval of some conduct is a permissible basis
for legislation. By contrast, on thoseareas where the thrust of
Catholic teaching is for values that we'd call liberal in today's
politics, the conservative justices might not vote in a way that
promotes those values,but they very seldom would vote to bar those values
from being legislated. Scalia and Thomas will vote to uphold the death
penalty, but they also certainly let Catholics and others push to eliminate it
through legislation. They might vote against vigorous readings of
civil-rights statutes, but this still leaves it open to Congress to expand the
statutes (as it has sometimes done after conservative Court opinions).
The fact that one could see these values as having constitutional overtones, in
Michelman-like fashion, does not change the fact that the issues are statutory
and therefore the cost of wrong decisions is less severe than with wrong
constitutional-invalidity rulings. 



There are a few exceptions to this. The thrust of the
Catholic bishops' teaching on race relations is pro affirmative action, and the
more conservative justices would vote to bar it constitutionally (based on, I'd
add -- and I know Sandy agrees with this -- the same kind of free-floating
moral analysis that they commonly condemn in liberals). And the 11th
Amendment jurisprudence is another area where conservative rulings not only
don't mandate protection of civil rights, but actually constitutionally bar it
(again on the basis of a strained interpretation). But these particular
questions -- state damages liability for civil rights violations, affirmative
action programs as such --do not have anywhere near theprominence
or fundamental status in Catholic social teaching that the basic issues of
abortion or euthanasia do. (Race relations and civil rights arepretty
fundamental, but those particular applications arent.)



If the conservatives on the Court were to major attacks on
congressional regulatory power over the workplace or the environment by
shrinking the Commerce Clause, then the tradeoff might get tougher for many who
tried to follow all Catholic values. But to date, the Court has mounted
such an attack: and the awful Justice Scalia cast a key voteto blunt it n
Raich, the medical-marijuana decision. (Maybe a national
security Court that constitutionally immunized unlimited executive detentions
or coercion by the administration would raise similar issues.)



My point is not to defend whatever mix of constitutional and
political policies traditional Catholics choose to support, only to show that
currently, for a significant range of such packages of policies, they
havequite colorable reasons to be more leery of liberal
justices than of conservatives.



This argument depends a lot on a distinction between
blocking a policy constitutionally and refusing to mandate it constitutionally
or by statute. One mightclaim that this distinction is
overrated.But I know that Sandy (like Mark Tushnet)
is among the liberals who, after Bush v. Gore, the 11th Amendment cases, etc., have
articulated a principled leeriness about judicial power.



Tom Berg

University of St. Thomas (Minnesota)







---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of
  Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: Sanford Levinson
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday,
 November 02, 2005 3:17 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case







Tom
Berg writes in his very interesting post:























Moreover, although there are 

RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

On the normative question whether traditionalist
Catholics ought to refrain from making common cause with evangelicals over culture
wars political and legal issues, Ill stay out of that question on
list. On the empirical question whether they are likely to continue to do
so, I would just say that there are powerful factors driving the two together
that are more than just a happenstance convergence on particular issues.
I would emphasize that there can be and is convergence on political, legal, and
cultural matters without there necessarily being any convergence on matters
such as liturgy, church polity (episcopal vs. congregational), papal
leadership, etc. On the political and legal matters, the underlying convergence
comes largely on the powerful issue of how secular the government should be;
these groups both resist the idea of a highly secular government (which in our
present situation also correlates, though not perfectly, with the idea of a relatively
secular public square). Whatever one thinks normatively about that
question, I dont see its importance going away.



Tom Berg

University of St. Thomas (Minnesota) 











-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]] 
Sent: Wednesday, November 02, 2005
4:45 PM
To: Law 
 Religion issues for Law Academics
Subject: RE: FYI: An Interesting
See You at the Pole Case



Tom and I read the tea
leaves somewhat differently. I am not sure that the critical divide is
intradenominational conflict between liberals and traditionalists. For
that to be true one has to pretend that the previous 500 years or so have left
little to no imprint on the attitudes of Catholics and Protestants towards each
other. I dont know what has happened since 1970 to cause such
collective amnesia. 



Tom discounts the
possibility that all that we may be witnessing is an interest-convergence
between conservatives in various religious traditions which, by its own force
is not enough to wipe out 500 years of history. There is still some
denominational integrity left in America. The great danger, one that
Herberg noted 50 years ago, is that that integrity may be in trouble,
especially for Catholics and Jews.



The real issue is whether
conservative Catholics and Jews will recover their senses and defend the
integrity of their religious traditions. Is it more important to be
Catholic, or is it more important to be a [white] conservative? The
answer to this question is not apparent, although I think that Tom believes
that it is.











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Wednesday, November 02, 2005
3:43 PM
To: Law  Religion issues for
Law Academics; 'Law  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting
See You at the Pole Case









We've
had some discussions of this over at the Catholic lawprofs' weblog http://www.mirrorofjustice.com, if
anyone is interested.











I would
suggest that this development -- five conservative Catholics on the Court,
generally supported by evangelical Protestants -- is no mystery at all once one
recognizes what many scholars of religion have noted: thatmore and more,
the major religious divide in America is between traditionalists
and progressives and cuts across the once-crucial denominational
differences such as Protestant-Catholic. (At least, that's true for
American Christianity in its relationship to public affairs, which is what
we're discussing.) Protestant and Catholic conservatives have united to a
large extentin opposition to abortion, widened protection or acceptance
of homosexuality in the law, stricter separation of church and state, and so
forth. At theleast, they agree with each other that the federal
courts should not mandate these things, and (as Mark suggested) that popularly
elected bodies should be able to go the other way based on traditional moral
positions.











As a result of this realignment,
conservative Protestants will have plenty of reasons to support nominations of
conservative Catholics (or tobe precise, of Catholic nominees who will
let these conservative/traditional moral values be enacted by
legislatures). There are certainly a lot of liberal Catholics who could
have been nominated in recent years, and who would have been welcomed by
liberal Protestants. But Democratic presidents haven't had many chances
-- not nearly as many as Republicans -- to nominate justices since the
1970s. And before the 1970s, the Protestant-Catholic divide that
Professor Newsom emphasizes was still central. (It's just not the major
divide now.)











Moreover, although there are plenty
of political issues on whichofficial Catholic teaching tends to lean more
to the left than to the right -- for example, active government involvement in
poverty and welfare programs -- many of these are not constitutional issues
that are really in play. Only if the Republicans nominated
someone who, like Justice Thomas, is committed

RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

We've had some discussions of this over at the Catholic lawprofs' weblog
http://www.mirrorofjustice.com http://www.mirrorofjustice.com , if anyone
is interested.
 
I would suggest that this development -- five conservative Catholics on the
Court, generally supported by evangelical Protestants -- is no mystery at
all once one recognizes what many scholars of religion have noted: that more
and more, the major religious divide in America is between traditionalists
and progressives and cuts across the once-crucial denominational
differences such as Protestant-Catholic.  (At least, that's true for
American Christianity in its relationship to public affairs, which is what
we're discussing.)  Protestant and Catholic conservatives have united to a
large extent in opposition to abortion, widened protection or acceptance of
homosexuality in the law, stricter separation of church and state, and so
forth.  At the least, they agree with each other that the federal courts
should not mandate these things, and (as Mark suggested) that popularly
elected bodies should be able to go the other way based on traditional moral
positions.
 
As a result of this realignment, conservative Protestants will have plenty
of reasons to support nominations of conservative Catholics (or to be
precise, of Catholic nominees who will let these conservative/traditional
moral values be enacted by legislatures).  There are certainly a lot of
liberal Catholics who could have been nominated in recent years, and who
would have been welcomed by liberal Protestants.  But Democratic presidents
haven't had many chances -- not nearly as many as Republicans -- to nominate
justices since the 1970s.  And before the 1970s, the Protestant-Catholic
divide that Professor Newsom emphasizes was still central.  (It's just not
the major divide now.)
 
Moreover, although there are plenty of political issues on which official
Catholic teaching tends to lean more to the left than to the right -- for
example, active government involvement in poverty and welfare programs --
many of these are not constitutional issues that are really in play.  Only
if the Republicans nominated someone who, like Justice Thomas, is committed
to rolling back the welfare state in a big way (by limiting the Commerce
Power, etc.) would those constitutional issues take on the prominence that
abortion, gay rights, and state-religion relations have had.  Janice Rogers
Brown might have been such a nominee, but Alito (like most other potential
Republican nominees) seems likely to be more cautious on those issues.
 
However, there are still a number of issues on which the American Catholic
bishops, at least, indicate concern with positions that a conservative
justice would be likely to take.  The chair of the bishops' conference wrote
a letter to President Bush in July 2005 asking him to consider, in addition
to pro-life justices, those who are also cognizant of the rights of
minorities, immigrants, and those in need; respect the role of religion and
of religious institutions in our society and the protections afforded them
by the First Amendment; recognize the value of parental choice in education;
and favor restraining and ending the use of the death penalty.  See
http://www.usccb.org/comm/archives/2005/05-155.shtml.
http://www.usccb.org/comm/archives/2005/05-155.shtml   Some of these
questions arise mostly in statutory contexts and as a result don't get the
attention in SCT nomination battles that perhaps they should.
 
Tom Berg, University of St. Thomas School of Law (Minnesota)
 

  _  

From: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Wed 11/2/2005 1:24 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting See You at the Pole Case



I will defer to others on whether the judicial philosophies of the four
(soon probably to be five) Roman Catholics on the Court are more consistent
with official Catholic teaching on justice than are the views of Senator
Kennedy. I'd think that preservation of the right of society to make law
based on natural law principles and on moral principles would be very
consistent with Catholic teaching. It seems to me that the Catholic members
of the Court are much more likely to believe that the Constitution preserves
such a right than are the non-Catholic members of the Court.

 

Michael's post reproduces my earlier post in which I suggested that overt
anti-Semitic acts likely were unusual (in Oklahoma and perhaps elsewhere).
Later posts and off-list discussions have convinced me that such acts are
not so unusual. My apologies.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, November 02, 2005 10:54 AM
To: Law  Religion issues for Law Academics
Subject: RE: FYI: An Interesting See You at the Pole Case

 

Mark, if you will recall, I said in my first Protestant Empire article that
I thought that the Protestant Empire was kept 

RE: Stephen Carter on what Christians should expect from the Supr eme Court

[Berg, Thomas C.]

Mark and others --
 
Yoder's is a striking quote indeed, but I think that he and Carter are
saying different things that are ultimately in some tension.  Yoder, I
think, would caution Christians not to focus on what the Supreme Court says
about abortion -- or what the legislature says -- and instead to model a
life-affirming approach within the Christian church toward unborn children
and problem pregnancies.  (That's the argument of Stanley Hauerwas, Yoder's
sort-of protege, and it's consistent with Yoder's Mennonite emphasis on the
church as an alternative community to the civil society.)  By contrast,
Carter, although he says that Christians shouldn't expect the Court to
follow their blueprint for society exactly, does think that Christians
should care about what the Court says and about what the legislature does
and should try to affect these actors.  He gives advice on how to do so:  A
moderate, thoughtful nation might be gently led to see the error of Roe by a
moderate, thoughtful Court. A revolutionary attack on its center will
certainly fail. If the justices lead the revolution, it will justifiably
fail.  This seems more of a Burkean point (hence the Bickel citation and
the Evolution not Revolution) about how legal change can most effectively
be brought about, as contrasted to Yoder's suspicion of any emphasis on
legal change.  In Christian theological terms, Carter's point is more
Christian realist, as contrasted to Yoder's Anabaptism or separatism.
 
Ummm, how to relate this to the law of government and religion   Well, I
think this exemplifies among other things how there's an immense range of
Christian views in between those who don't want to emphasize lobbying the
civil government at all, and those who want to impose a full-fledged
Christian vision of society through government and law.  The large majority
of Christian views in America are somewhere in between those, a fact that is
often obscured, I think, in discussions about religion in politics.
 
Tom Berg, University of St. Thomas School of Law (Minneapolis)
 

  _  

From: Mark Tushnet [mailto:[EMAIL PROTECTED]
Sent: Tue 11/1/2005 8:28 PM
To: Law  Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edu
Subject: Re: Stephen Carter on what Christians should expect from the
Supreme Court



Having now read the article, I think it appropriate to quote what in 
my view is the deepest insight I've ever heard about religion and 
the Constitution (an insight not inconsistent, I think, with Carter's 
perspective).  It's from the late John Howard Yoder, the Amish 
theologian, and -- I think I have the words almost exactly -- it is:  
It's not the Christian's job to solve Satan's problems. 
Content-Type: multipart/alternative; 
boundary==_alternative 005FCD49862570AC_= 


--=_alternative 005FCD49862570AC_= 
Content-Type: text/plain; charset=US-ASCII 

An excellent article, in my opinion, one that those on both the right and 
the left would do well to consider. 

http://www.christianitytoday.com/ct/2005/011/18.96.html
http://www.christianitytoday.com/ct/2005/011/18.96.html  

Brad 
--=_alternative 005FCD49862570AC_= 
Content-Type: text/html; charset=US-ASCII 


brfont size=2 face=sans-serifAn excellent article, in my opinion, 
one that those on both the right and the left would do well to
consider./font 
br 
brfont size=2
face=sans-serifhttp://www.christianitytoday.com/ct/2005/011/18.96.html
http://www.christianitytoday.com/ct/2005/011/18.96.html /font 
br 
brfont size=2 face=sans-serifBrad/font 
--=_alternative 005FCD49862570AC_=-- 

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RE: FYI: An Interesting See You at the Pole Case

[Berg, Thomas C.]

Let me join others, with a few additional facts.
 
From Laycock, Equal Access and Moments of Silence: The Equal Status of
Religious Speech by Private Speakers, 81 Nw. U. L. Rev. 1, 52-53 (1986)
(footnotes omitted):
 
The American Civil Liberties Union opposed early drafts of the Equal
Access Act that protected only religious speech. It took no position on the
Hatfield compromise [the ultimate text], which protected all student speech
from content discrimination. The SearchTermACLUSR_18620 remained
'suspicious' of the enacted SDU_76legislation, and it began a project with
the American Jewish Congress to monitor implementation. Subsequently, the
SearchTermACLU'sSR_18645 biennial conference opposed the Act as 'a flagrant
violation of the establishment clause.' 

The ACLU then joined the Anti-Defamation league's brief in Mergens arguing
that the Equal Access Act was unconstitutional, not just as applied but on
its face.  See the Kurland and Casper Landmark Briefs series, volume 195.
That brief adopted the school district's argument that whatever went on in a
student club program, even after school and with many clubs involved, bore
the state's imprimatur.  This logic would have eviscerated the religious
speech rights of students in other contexts besides the student club, and
I'm certain that the logic would ever have been applied by the ACLU to any
other context besides religious speech. 

I grant that there are legitimate concerns about whether particular
districts might apply the Equal Access Act in way that put true school
sponsorship or favoritism behind the religious club (as opposed to the
pseudo-sponsorship of just allowing it to use rooms like other clubs).
However, since the Act by its terms would not authorize such real
sponsorship or favoritism, and since the ACLU challenged the Act facially as
well as in any particular application, concerns about its application were
grossly insufficient reasons to oppose the Act overall.  Unless, that is,
one believes that the risk of school sponsorship in some cases always
controls over the risk in other cases of forbidding even truly private
religious student groups to meet.  It's hard to deny that such an exalting
of non-establishment concerns over free speech and free exercise concerns
were reflected in the ACLU's suspicious and even hostile attitude toward the
Act in its early years.

I expect that the ACLU has gotten better in recent years on the issue of
student-initiated religious clubs -- mostly because they've learned to live
with the Equal Access Act.  But to say it's been very consistent in
defending the free exercise and free speech rights of students in that
context is an overstatement.

Tom Berg, University of St. Thomas School of Law (Minnesota)




  _  

From: Ed Brayton [mailto:[EMAIL PROTECTED]
Sent: Mon 10/31/2005 12:36 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: FYI: An Interesting See You at the Pole Case



Except that the ACLU has been very consistent in defending the free speech
and free exercise rights of students, including events like See You At The
Pole, the right to organize student bible clubs, the rights of students to
hand out religious literature to their classmates, wear religious clothing,
and choose religious songs or subjects for reports, and so forth. In many of
the famous cases where it is claimed that schools are being hostile to
religion, like the Lamb's Chapel case or the case in Massachusetts where the
kids were suspended for handing out candy canes with a religious message
attached, the ACLU was on the right side.
 
Ed Brayton

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Monday, October 31, 2005 1:26 PM
To: religionlaw@lists.ucla.edu
Subject: Re: FYI: An Interesting See You at the Pole Case



In a message dated 10/31/2005 1:24:20 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:

I wish that the media and the right wing pundits would accurately state the
law about religion at schools -- then maybe fewer people would misunderstand
it. 

Please.
 
The right wing did not intimidate school districts through litigation and
threats thereof until suppression became the obvious safe choice.  The
correct spelling for those groups is PFAW, ACLU, etc.

application/ms-tnef___
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RE: CNN: Bush will nominate Roberts

[Berg, Thomas C.]

On the other hand, Earl Warren by all accounts was immediately successful as
a leader coming in from the outside (see, e.g., Brown v. Board of Ed).  And
Harlan Fiske Stone, who'd been an associate justice for 15 years, was quite
unsuccessful as chief justice, letting conferences meander and overseeing
the Court sliding into some of its worst personal acrimony ever (as opposed
to now, when the justices don't get along badly even though they're closely
divided on issues).  Burger was just a difficult, arrogant personality, and
Rehnquist a very suitable one (combining businesslike habits with a light
touch and good sense of humor).  I think that it has more to do with
personal leadership skills -- of which Roberts appears to have many -- as
opposed to actual experience.  And even on the latter score, Roberts is as
knowledgable about the Court and these justices as it's possible to be
without having been a justice himself.  And they're quite familiar with him
too.
 
Tom Berg, University of St. Thomas School of Law (Minneapolis)

  _  

From: Ed Brayton [mailto:[EMAIL PROTECTED]
Sent: Mon 9/5/2005 9:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: CNN: Bush will nominate Roberts


[EMAIL PROTECTED] mailto:[EMAIL PROTECTED]  wrote: 


CNN is announcing that at the top of the hour President Bush will nominate
Roberts to CJ position.


Probably not a bad move politically, since it looks like Roberts will sail
through the nomination process, but I think it's a bad idea in terms of the
internal workings of the court. Without time on the court, he doesn't have
the experience to know how to deal with each justice, how the justices
interact with each other, how to handle the egos involved, and so forth.
Rehnquist was effective as CJ - far more effective than his predecessor,
certainly - because he had been on the court for 14 years by the time he was
nominated. He knew what the job required, the balances one must sometimes
carefully strike, and he had seen many examples of what not to do. He also
commanded the respect of his fellow justices. It has nothing to do with
Roberts himself, who by all accounts is a highly capable judge. He may well
grow into the position and be just fine. But at a time when the court is
more divided than ever, I think it's a bad idea to bring someone in from the
outside to run things.

Ed Brayton

application/ms-tnef___
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RE: Hostility

[Berg, Thomas C.]

This is an interesting and effective response to my challenge.  But I
wonder:
 
1.  Whether a golden age as short as the one to which Alan refers is really
enough to provide a stable model for the future.
 
2.  Whether continuing to push everyone together in public schools (through
selective funding policy) will simply create increasing fights over what
constitutes the consensus that we have, what is an unfair imposition, what
is simply a beneficial exposure of students to views with which they
disagree, etc.  If (as some on the list have argued) it's not really that
much of a burden on anti-evolution students to be taught that evolution is
correct and therefore effectively that their religiously-based understanding
of the development of living things is false, then is it really surprising
when other people argue that a brief, ecumenical prayer like that in Lee v.
Weisman is not that much of a burden either?  I won't go on about the
various conflicts (and I'm not arguing for either official school prayer or
the teaching of ID).  But it seems to me that the lines here will remain
quite contested, with lots of polemical shots fired by each side (you
godless atheists versus you arrogant fundamentalists care about nothing
but trying to impose on others).
 
3.  Whether proponents of public schools (or Americans in general) will
accept some of the other specific  changes that might have to occur in to
address the family issues that Alan calls for addressing.  For example, the
reasons why there are more two-working-parent families, and thus less time
for family inculcation of values (and more reliance on schools), include:
(a) economic pressures, prominent among them various levels of taxes (to
support, among other things, schools); and (b) the dramatically increased
participation of women in the workplace as a matter of freedom and
fulfillment for women.  I do not claim that increasing family time
*inevitably* requires lowering taxes and having women work less; but I think
that, realistically in the circumstances of our society, those would be
among the most likely means for making the changes.  (Other changes -- such
as dividing family responsibilities more equally between men and women --
may be more attractive morally, but have proven to be much harder to bring
about.)  Will supporters of public schools accept lower taxes (with
consequent belt-tightening at schools) and more stay-at-home mothers if
those prove to be necessary in practice to increase family time and thus
reduce the moral-teaching responsibilities (and pressures) placed on public
schools?  I have my doubts.  
 
Tom Berg
 

  _  

From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Tue 8/23/2005 5:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hostility



I appreciate the power of Tom's argument (and his caveat at the end.) 

I offer three modest responses. First, I recognize that schools taught the 
consensus principles of Christianity for a long time. But there was a 
period after that consensus unraveled 
and before schools began to take on a lot of what I view as extraneous 
programs  -- when public schools, at least in places like the Bronx, 
operated the way that I have described them. We did have the Regents 
prayer, but there was very little of anything else regarding religion  -- 
and none of the new stuff. Schools did a very good job on the academics. 
Parents, houses of worship, after school religious classes and other 
mediating institutions took care of the many other important aspects of a 
young person's education. 

Second, I think the reason the schools have taken on some much more of this 
non-academic role has less to do with people thinking this is really the 
proper role for schools (although I recognize that this part of the story) 
and more to do with social changes that have made it less convenient for 
families and after school mediating institutions to do their jobs. (e.g. 
suburban lifestyles, two worker families etc.)  I would like to see us 
spend more time figuring out how to facilitate the role of families and 
after school mediating institutions and less on fragmenting the public 
along religious lines. 

Third, I do not for a moment discount the deep lack of consensus over 
highly value-laden issues in our society. But I also think we should not 
ignore the rich grounding of consensus that does exist. I don't want to 
understate the difficulty people will have working together. But I do think 
when people have the chance to see what they have in common, and recognize 
that some of their feelings about their schools not being sensitive to 
their beliefs and their children's needs are shared fairly broadly -- but 
in different ways, then it becomes a bit easier for people to work out ways 
to reconcile their differences. 

Alan Brownstein 
UC Davis 

 

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RE: Hostility

[Berg, Thomas C.]

It'll take me a while to respond to some of these points, but let me quickly
pick up on the last one.  I do think that it is unfortunate that many people
-- even some judges -- tend to view Religion Clause positions as either
pro-religion or anti-religion, so that school prayer, school choice,
free exercise exemptions, etc. all go hand in hand.  (You either vote for
religion or vote against it.)  I have some hope -- now I'm the hopeful
one! -- that circumstances will push us our society away from the path of
government pursuing its favored religion in its schools, but toward the path
of government giving equal status in education benefits to all faiths along
with nonreligious schools (public and private).  I am encouraged by the fact
that the Court has moved decidedly in this direction in recent years.  I
believe, and am writing a book manuscript to this effect, that there are
strong social, cultural, and intellectual factors that help explain the
Court's direction.  I realize that, as Alan points out, several of the
pro-school-choice justices also favor allowing some forms of official school
prayer; but O'Connor, Kennedy, and to some extent Rehnquist are or were not
in favor of this.  Moreover, beyond the views of individual justices, I hope
and expect that the effects of stare decisis will entrench this distinction:
I expect that over the next few years both Zelman and, say, Lee v. Weisman
will be followed rather than overruled or significantly cut back.  I hope,
then, that the solidifying of the distinction in these precedents between
government's favored faith and equal treatment for faith will also,
indirectly, strengthen the distinction in the attitudes of the general
population.
 
Along with Rick Duncan, I also expect that -- as a practical matter -- if
more people disaffected from public schools on religious grounds can afford
to use private schools because of school choice, then fewer people will have
reason to seek religious observances in public schools.  It won't eliminate
those efforts, obviously, but I expect it will reduce them.
 
Tom Berg  

  _  

From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Thu 8/25/2005 12:04 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hostility



I think religious apartheid and religious fragmentation have very 
different meanings. 
But putting that issue aside for the moment, the questions Tom asks are 
certainly fair and important ones. 

I certainly don't know if there is significant empirical literature that 
responds to his questions  -- and I lack the expertise 
to evaluate what may be available. 

But let me offer a few responses that are not based on empirical studies. 

1. The intuition that our children benefit from getting to know children of 
other races, ethnic groups, and religions 
is a pretty powerful one. Tom's own question reflects it when he notes that 
Catholic schools are more racially 
diverse than public schools. Why should we care about that unless we think 
that interactions with others 
of a different background or ethnicity matters. 

Of course, other factors contribute to how well children will socialize 
with others too. What kids are taught at 
school and at home is pretty critical. So are other factors. 

2. As to how many parents will choose private schools for their kids, I'm 
not sure how much we can learn from the results of any one program, like 
the Cleveland program at issue in Zelman. 
But there is something of a disconnect here. On the one hand, I'm told that 
the culture war is pervasive. There is no common ground. 
The public schools will always be a battleground among warring parents over 
the education of their children. It is intolerable 
to have children subjected to values or theories that are inconsistent with 
the values of their parents. 

But then I'm told, Don't worry about vouchers because hardly anyone is 
going to use them to attend private schools anyway. 
One of the reasons I worry that government aid to religious schools and 
other religious social programs will be fragmenting is that I listen to the 
arguments of 
people who support those programs, many of whom are much less moderate than 
Tom. 

3. As for interreligious tension in other Western democracies that provide 
substantial state aid to religious schools. 
I can't point to empirical studies. But I think there is considerably more 
interreligious tension and less religious equality in many Western 
democracies than exists in the U.S. It's complicated. It gets mixed in with 
racial, ethnic, and immigration issues. I would not 
suggest that the government's funding of religious schools is its primary 
cause. But I think we have done a lot better job in creating a society in 
which people of different faiths can live together than most other
countries. 

4. And speaking of empirical studies, where are the studies, here or 
abroad, that suggest that government aid to religious schools is going to
solve 
the problems we have been 

RE: Hostility

[Berg, Thomas C.]

 rules.  Those who defend the 
winner-take-all rules that have so deformed, distorted and dehumanized 
our political economy and culture have to take responsibility for the 
natural and foreseeable consequences of these rules.  State imposition 
is not going away.  There will be an American common ground, if we want 
to have this country continue on.  If the consequence of these 
winner-take-all rules is to shrink the realm of private autonomy, in 
practical, functional and operational terms, then the blame lies with 
the defenders of the status quo.  I suspect that most Americans know 
that there is something terribly wrong with the distribution of wealth 
in this country, but have, for a variety of reasons, little to no idea 
of how to address the problem, or are simply resigned to it, or hope 
that their children will become winners and reap the rewards that these 
rules will probably confer upon them.  (The Republicans bamboozle and 
engage in flimflam, and the Democrats fumble and fidget and never seem 
to want to commit to a coherent critique of the current winner-take-all 
rules.  Again, I suspect, though, that most Americans know that the 
rules are lousy, but at the same time like them, and this fact explains 
the strategies of the two major political parties.)

As to those mothers who need to work for personal fulfillment, they have 
obligations to their children to which they -- and their husbands (or 
partners or significant others, or whatever) -- should be held to 
account.  But most importantly, you overlook the structure, functioning 
and role of mediating institutions in an economic regime where parents 
work.  (By the way, you failed to consider single-parent families.) 

  

-Original Message- 
From: Berg, Thomas C. [mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] 
Sent: Wednesday, August 24, 2005 12:32 PM 
To: Law  Religion issues for Law Academics 
Subject: RE: Hostility 

This is an interesting and effective response to my challenge.  But I 
wonder: 
  
1.  Whether a golden age as short as the one to which Alan refers is 
really 
enough to provide a stable model for the future. 
  
2.  Whether continuing to push everyone together in public schools 
(through 
selective funding policy) will simply create increasing fights over what 
constitutes the consensus that we have, what is an unfair imposition, 
what 
is simply a beneficial exposure of students to views with which they 
disagree, etc.  If (as some on the list have argued) it's not really 
that 
much of a burden on anti-evolution students to be taught that evolution 
is 
correct and therefore effectively that their religiously-based 
understanding 
of the development of living things is false, then is it really 
surprising 
when other people argue that a brief, ecumenical prayer like that in Lee 
v. 
Weisman is not that much of a burden either?  I won't go on about the 
various conflicts (and I'm not arguing for either official school prayer 
or 
the teaching of ID).  But it seems to me that the lines here will remain 
quite contested, with lots of polemical shots fired by each side (you 
godless atheists versus you arrogant fundamentalists care about 
nothing 
but trying to impose on others). 
  
3.  Whether proponents of public schools (or Americans in general) will 
accept some of the other specific  changes that might have to occur in 
to 
address the family issues that Alan calls for addressing.  For example, 
the 
reasons why there are more two-working-parent families, and thus less 
time 
for family inculcation of values (and more reliance on schools), 
include: 
(a) economic pressures, prominent among them various levels of taxes (to 
support, among other things, schools); and (b) the dramatically 
increased 
participation of women in the workplace as a matter of freedom and 
fulfillment for women.  I do not claim that increasing family time 
*inevitably* requires lowering taxes and having women work less; but I 
think 
that, realistically in the circumstances of our society, those would be 
among the most likely means for making the changes.  (Other changes -- 
such 
as dividing family responsibilities more equally between men and women 
-- 
may be more attractive morally, but have proven to be much harder to 
bring 
about.)  Will supporters of public schools accept lower taxes (with 
consequent belt-tightening at schools) and more stay-at-home mothers if 
those prove to be necessary in practice to increase family time and thus 
reduce the moral-teaching responsibilities (and pressures) placed on 
public 
schools?  I have my doubts.  
  
Tom Berg 
  

  _  

From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] 
Sent: Tue 8/23/2005 5:09 PM 
To: Law  Religion issues for Law Academics 
Subject: RE: Hostility 



I appreciate the power of Tom's argument (and his caveat at the end.) 

I offer three modest responses. First, I recognize that schools taught 
the 
consensus principles

RE: Hostility

[Berg, Thomas C.]

Is the religious apartheid worry (or fragmentation as Alan calls it)
based on any empirical evidence?  For example:
 
1. Is there any evidence that religious-school students socialize with
others less well than do public-school students?  I'm not aware of such
evidence.  (And we do know that in inner cities, Catholic schools are often
more racially diverse than are public schools -- and often religiously
diverse as well.) 
 
2. Any evidence that home-schooled children relate less well to others, when
they eventually enter school systems, than do public-school students?
 
3. Any evidence of greater interreligious tension, interracial tension,
etc., in European nations that provide substantial state aid to religious
schools than in America?
 
4. Any sense of how many families will actually choose private education,
and how many will stay in public schools, under school choice programs?  The
Zelman case tells us that even in Cleveland, where the credibility of the
public system could have been seen as especially low, many eligible families
chose charter and magnet schools in the public system rather than
private-school vouchers.
 
My sense is that there isn't empirical evidence to support these warnings.
But I'd be interested to know of any.
 
Tom Berg
University of St. Thomas School of Law (Minneapolis)

 
  _  

From: Newsom Michael [mailto:[EMAIL PROTECTED]
Sent: Wed 8/24/2005 6:28 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hostility



See my comments interlineated below.

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Wednesday, August 24, 2005 3:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hostility

 

Well, of course the pro-voucher side, correspondingly, generally accepts the
need for a common ground and for some state imposition.  The vast
majority of voucher supporters are willing to have some state oversight of
the educational quality and, within limits, the educational content in their
schools.  The vast majority want their religious schools to teach basic
values of human dignity, human rights, and tolerance and respect for others
-- values that they see as required by their faiths.  Of course many of them
have different ideas about the scope of human rights or tolerance than some
other citizens do.  But that doesn't mean they oppose the general ideas of
rights, tolerance, or common ground -- any more than the fact that
public-school supporters favor public schools in which values are taught
means that they oppose mediating institutions as sources of values.  All
of these arguments, however heated, are at the margins.  Both sides, not
just the public-school supporters, are willing to draw lines.

 

I am less sanguine than you are about the inclination of some people to
support the teaching of tolerance and respect for others.  The rhetoric of
many people, including some voucher supporters, points to an America
characterized by separate clusters or groupings of people distrustful or
contemptuous of other people.  One is forced to conclude that some people
find nothing wrong with religious apartheid.  (See David M. Smolin,
Regulating Religious and Cultural Conflict in a Postmodern America: A
Response to Professor Perry, 76 Iowa L. Rev. 1067 (1991).)  I think that
religious apartheid is a terrible idea, and it does little to engender the
kind of cohesiveness that the country needs. 

 

I don't understand how arguing for school vouchers -- which is what I've
been doing, rather than arguing for religion in public schools -- overlooks
the role of mediating institutions in forming children.  Rather, the
argument for vouchers emphasizes that role, since the universe of mediating
institutions concerning children obviously includes not just families and
churches, but also private schools.

 

There are good reasons to worry about putting too much weight on private
schools, for the reasons that I mentioned earlier, among others.

 

 

  The premise underlying vouchers is that the government can achieve its
goals of education and basic socialization as much through private
institutions as through public ones, and indeed should treat the two equally
in funding so as to avoid discouraging pursuit of the private option.
Moreover, if the family would choose a private instead of a public school,
doesn't respect for the family itself as a mediating institution point
toward presumptively respecting, rather than discouraging, that choice?

 

Again, we should be concerned about the possibilities of religious
apartheid. 

 

As to ways of decreasing economic pressure and increasing family time, I
specifically said that lower taxes and fewer working women were not the only
means of doing so.  I simply said that, realistically speaking, they were
among the means most likely to be on table in our society.  To offer as an
alternative to these a radical readjustment of our economic rules proves
my point, it seems

RE: Two kinds of purpose inquiries

[Berg, Thomas C.]

To follow up and agree with Eugene's argument, it seems to me that the text
of Title VII requires that the  employment action, to give rise to
liability, must be based on the employee's religion rather than the
supervisor's religious motive:  the text prohibits discrimination against
any individual . . . because of such SDU_56individual's . . . religion.  42
U.S.C. 2000e-2(a) (emphasis added).  I discuss both the text and arguments
about statutory policy concerning such cases in 22 Harv. J. L.  Pub. Pol'y
959, 999-1002 (1999).
 
Tom Berg

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Tue 8/23/2005 5:42 PM
To: Law  Religion issues for Law Academics
Subject: RE: Two kinds of purpose inquiries



Venters is pretty ambiguously reasoned:  At times it uses 
language similar to what Michael quotes, but at times it stresses that 
the issue is *the employee's* religious beliefs rather than the 
supervisor's -- what role if any *her religion* (or Ives' perception of 
her religion) played in her discharge is a question that the jury must 
sort out (emphasis added).  This ambiguity was easy because Venters' 
allegation was that the supervisor was upset at her failure to convert 
to his religion, and not just upset at her secular behavior. 

But it seems to me that the Title VII rule must focus on the 
employee's religion, not the supervisor's (or else it would itself 
become seriously religiously discriminatory).  If an employer fires 
adulterous employees (regardless of their religious beliefs), or racist 
employees (regardless of their religious beliefs), or for that matter 
gay employees (regardless of their religious beliefs), that won't be a 
Title VII violation, regardless of whether the employer was motivated by 
his religious morality, his secular morality, or his secular business 
judgment.  Likewise, if an employer fires Catholic employees, that will 
be a Title VII violation, regardless of whether the employer was 
motivated by his religious disagreement with Catholicism, his secular 
moral disagreement with Catholicism, or his secular business judgment. 

Eugene 

 -Original Message- 
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] On Behalf Of 
 Michael MASINTER 
 Sent: Tuesday, August 23, 2005 3:30 PM 
 To: Law  Religion issues for Law Academics 
 Subject: RE: Two kinds of purpose inquiries 
 
 
 Do Title VII and the religion clauses (the latter of course 
 applied only to governmental employers) permit an employer to 
 fire an employee for engaging in conduct that offends his 
 religious beliefs?  For an extreme example that answers the 
 question no, see Venters v. City of Delphi, 123 F.3d 956 
 (7th Cir. 1997). Recounting the evidence that Ives (the 
 supervisor) fired Venters (the employee) based on Ives' 
 religious objections to Venters' lifestyle, the court wrote: 
 
 Matters came to a head on February 14, 1994, when Ives 
 called Venters into his office and asked if she had attended 
 church services the previous Sunday.  When Venters admitted 
 that she had not, Ives told her that she had a choice to 
 follow God's way or Satan's way, and that she would not 
 continue working for Ives if she chose the latter.  Ives then 
 began talking about Venters' sinful life and the disgust he 
 felt toward her because of her obstinate refusal to be saved, 
 indicating to Venters that he believed she was repeating a 
 cycle of abuse she had experienced as a child with her 
 family.  Ives told Venters that after having observed her 
 behavior, he became convinced that she had had sexual 
 relations with family members and perhaps even animals, and 
 that she was sacrificing animals in Satan's name.  Ives also 
 suggested to Venters that suicide would have been preferable 
 to her continuing a life of sin, and that he would not allow 
 the evil spirit that had taken [Venters'] soul to continue 
 to live in the police department. 
 
 The court describes the role of the religion clauses (and 
 later Title VII similarly): 
 
 It is readily apparent from this rough sketch of the two 
 clauses that coercing a person to conform her beliefs *or her 
 conduct* to a particular set of religious tenets can run 
 afoul of both the establishment as well as the free exercise clauses. 
 
 The court focused throughout its opinion on Ives' religiously 
 motivated objections to Venters' conduct; with sufficient 
 evidence from which to conclude that Ives used conduct as a 
 proxy for religion faith, firing Venters because of her 
 conduct was firing her because of her failure to conform her 
 conduct to his religious beliefs; the court held that would 
 violate both Title VII and the religion clauses.  
 
 
 Michael R. Masinter   3305 College Avenue 
 Professor of Law  Fort Lauderdale, FL 33314 
 Nova Southeastern University  (954) 262-6151 (voice) 
 Shepard Broad Law Center  (954) 262-3835 

RE: Pop Quiz: Justice O'Connor and the Religion Clauses

[Berg, Thomas C.]

It's also the case that after some hemming and hawing (along with others on
the Court), O'Connor came down firmly on the side of allowing religious
schools in school choice programs.  She did still cast the key vote to limit
direct aid -- even when figured on a per-capita formula -- based on a rather
thin it looks worse sort of argument (the very kind of O'Connor argument
that regularly frustrated a lot of us).  Nevertheless:  (1) her key vote for
vouchers should be viewed as a great contribution by those of us (including
the Becket Fund) who see school choice as most consistent with religious
liberty; and (2) the line that she drew between true private choice and
direct aid is not all that murky or subjective, and seems pretty
administrable.
 
I think that condemning O'Connor for drawing unclear lines in religion cases
is an example of letting the emotional religious-symbols cases dominate the
analysis, as against what are (to my view) more important areas for the
substance of religious liberty.
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 

  _  

From: Alan Brownstein [mailto:[EMAIL PROTECTED]
Sent: Sat 7/2/2005 11:59 AM
To: Marty Lederman; Law  Religion issues for Law Academics
Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses




I think Marci is right. O'Connor's position wasn't just technically 
different than the majority in Smith. She recognized the value of 
indeterminacy in this area. Even if the Supreme Court ruled against 
religious plaintiffs in many pre-Smith free exercise cases, the 
recognition that general laws and adminstrative decisions burdening free 
exercise rights could be subject to judicial review forced political 
decision makers to think twice and opened the door to accommodations and 
compromises. 

The Court in the Smith decision recognized that any meaningful protection 
for free exercise rights against general laws would be imprecise and 
indeterminate in its application. So it choose clarity over liberty. I 
have always believed that was a serious error. So did O'Connor. I thought 
the Becket Fund did too. 

There probably isn't a church-state scholar or lawyer in the country who 
wasn't frustrated some of the time by O'Conner's subjectivity. But unless 
the Becket Fund has changed its position on Smith and RFRA, its comment 
on SOC demonstrated poor judgement as well as bad taste. 

Perhaps this reflects my own lack of judgement, but I expected better of 
you guys. 

Alan Brownstein 
UC Davis 



 
 Marci writes that while it is true that she has altered the = 
 Establishment Clause jurisprudence, she has not been in the majority on 
= 
 the Free Exercise Clause since 1990 and Smith. 
 
 That is, of course, nominally (or technically) correct.  But has SOC = 
 really been that far from where the Court truly was on FEC questions?  = 
 See, e.g., her concurrence in Smith, and, especially, her opinion for = 
 the Court in the answer to my Question No. 1. 
   - Original Message -=20 
   From: [EMAIL PROTECTED] 
   To: [EMAIL PROTECTED] 
   Sent: Saturday, July 02, 2005 11:53 AM 
   Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses 
 
 
   I guess the Becket Fund won't be citing Justice O'Connor's backing of 
= 
 strict scrutiny under the Free Exercise Clause in its future works?   I 
= 
 would have thought those who would attack her would have given her the = 
 weekend to be lauded.  But I'm a former clerk and extremely fond of her. 
 = 
 
 
   With respect to her influence on the Religion Clauses-- while it is = 
 true that she has altered the Establishment Clause jurisprudence, she = 
 has not been in the majority on the Free Exercise Clause since 1990 and 
= 
 Smith. 
 
 
 
   Marci 
 
 

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RE: Pop Quiz: Justice O'Connor and the Religion Clauses

[Berg, Thomas C.]

Dear Anthony,
 
You're right; I based my comment on the first statement posted, and the
second one, which you posted, does speak to the crucial categories of
religious liberty cases that were not mentioned in the first one.  I am less
positive on government displays of creches and the 10 Commandments than you
guys are, for reasons I've stated in a couple of recent weblog posts --
mostly having to do with the integrity and independence of religion from
government.
http://www.scotusblog.com/discussion/archives/2005/06/importance_not.html#co
mments
http://www.scotusblog.com/discussion/archives/2005/06/importance_not.html#c
omments 
 
http://www.mirrorofjustice.com/mirrorofjustice/2005/06/should_we_care_.html

http://www.mirrorofjustice.com/mirrorofjustice/2005/06/should_we_care_.html
 
My point was not that the O'Connor distinction in Mitchell and Zelman was
based on a convincing rationale.  My point was only -- again in response to
the first statement -- that the distinction sets up a reasonably clear line,
and didn't suffer from the defect of (as the first statement put it) leaving
every new dispute in doubt until the moment Justice O'Connor voted because
even her own precedents could not predict the outcome of new cases.
 
Tom
 
 

  _  

From: Anthony Picarello [mailto:[EMAIL PROTECTED]
Sent: Sat 7/2/2005 6:39 PM
To: Law  Religion issues for Law Academics
Subject: RE: Pop Quiz: Justice O'Connor and the Religion Clauses



Our posts may have just crossed, but just to reiterate, our point was not
that O'Connor was always wrong on the Establishment Clause, or that we would
never celebrate any of her EC decisions.  It was that her decisions were
hit-and-miss, especially under the EC, and that it's very hard to come up
with a principled way to explain (or predict) those decisions.  And we don't
view that problem to be limited to the government religious expression
cases.

 

You raise a good example in the distinction b/w Mitchell and Zelman.  Her
direct / indirect aid distinction is based in part on endorsement concerns
(Mitchell at 842-43).  Even where the aid follows parental choice by
following the students to the school per capita, as in Mitchell, if the
check goes directly to the school, the money can't be applied toward
religious purposes, because it just looks worse to her (and to Breyer).  But
if the parents get a check that they can't use for any purpose other than to
endorse over to the school, as in Zelman, it looks OK to her (but not to
Breyer).

 

Yes, this distinction is administrable:  it should be relatively easy for
lower courts to tell whether the gov't aid check went to the student's home
first, or went directly to the school.  But her reason for treating cases
differently across that admittedly clean line is still highly subjective
and, in my view, difficult to defend.

 

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Saturday, July 02, 2005 3:22 PM
To: Law  Religion issues for Law Academics
Subject: RE: Pop Quiz: Justice O'Connor and the Religion Clauses

 

It's also the case that after some hemming and hawing (along with others on
the Court), O'Connor came down firmly on the side of allowing religious
schools in school choice programs.  She did still cast the key vote to limit
direct aid -- even when figured on a per-capita formula -- based on a rather
thin it looks worse sort of argument (the very kind of O'Connor argument
that regularly frustrated a lot of us).  Nevertheless:  (1) her key vote for
vouchers should be viewed as a great contribution by those of us (including
the Becket Fund) who see school choice as most consistent with religious
liberty; and (2) the line that she drew between true private choice and
direct aid is not all that murky or subjective, and seems pretty
administrable.

 

I think that condemning O'Connor for drawing unclear lines in religion cases
is an example of letting the emotional religious-symbols cases dominate the
analysis, as against what are (to my view) more important areas for the
substance of religious liberty.

 

Tom Berg

University of St. Thomas School of Law (Minnesota)

 

 

  _  

From: Alan Brownstein [mailto:[EMAIL PROTECTED]
Sent: Sat 7/2/2005 11:59 AM
To: Marty Lederman; Law  Religion issues for Law Academics
Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses

 

I think Marci is right. O'Connor's position wasn't just technically 
different than the majority in Smith. She recognized the value of 
indeterminacy in this area. Even if the Supreme Court ruled against 
religious plaintiffs in many pre-Smith free exercise cases, the 
recognition that general laws and adminstrative decisions burdening free 
exercise rights could be subject to judicial review forced political 
decision makers to think twice and opened the door to accommodations and 
compromises. 

The Court in the Smith decision recognized that any meaningful protection 
for free

RE: Discrimination Against Wiccans; Simpson v. Chesterfield Count y

[Berg, Thomas C.]

The Marsh opinion justified legislative prayer on the basis of a very crude
version of a historical argument -- the first Congress did this, and it's
been done consistently since -- not really on the basis of a coherent,
generalizable analytical principle such as it's just solemnization or
it's just a personal act by the legislators, not directed at the public.
For that reason, it's difficult to know how to apply Marsh in a principled
or convincing way, as I think this decision dramatizes.
 
With respect to the it's just for the legislators, not directed at the
public rationale, I have more trouble accepting it in this kind of case
than in Marsh.  At a county board meeting, unlike a session of Congress,
regular citizens often must attend in order to present some kind of proposal
or petition to the board:  so they have to listen to the prayer (and
probably refrain from walking out on it, so as not to offend the board
members).  And if the prayer is really just for the board members, then
since there's typically only a few of them (again unlike Congress), they
could have it together before entering the room and starting the public
meeting.  Finally, if the prayer is truly just the board members personally
asking for guidance together, then they ought to be able to have a highly
sectarian prayer if they all agree on it, rather than being constrained by
the nonsectarian monotheism requirement that the Fourth Circuit has set
forth in its cases.
 
Tom Berg, University of St. Thomas (Minnesota)
 

  _  

From: David Cruz [mailto:[EMAIL PROTECTED]
Sent: Fri 4/15/2005 1:13 PM
To: Law  Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County



On Fri, 15 Apr 2005, West, Ellis wrote: 

 [snip]  If, however, the reason for these prayers 
 is because the members of the Board truly want divine guidance or 
 blessing from the deity in which they believe, the God of the 
 Judeo-Christian faith, [snip] 

Does that count as a *secular* purpose??  I thought legislative prayers 
were typically justified on solemnization rationale. 

David B. Cruz 
Professor of Law 
University of Southern California Law School 
Los Angeles, CA 90089-0071 
U.S.A. 

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RE: Free Exercise, Free Speech, and harm to others

[Berg, Thomas C.]

 pressure patients to choose 
assisted suicide, even when the patients would rather not have chosen 
that (much as allowing dueling might pressure people into dueling even 
if they'd have preferred not to do so) 

Now let's say that a patient claims a Free Exercise Clause right 
to have assistance in his suicide (because he believes that God is 
calling him home), or a patient's spouse claims a Free Exercise Clause 
right to be the Good Samaritan who helps the patient out of his misery. 

See Sanderson v. People, 12 P.3d 851 (Colo.App.2000); see also, e.g., 
Winthrop Drake Thies, Shall the Dying Be Denied Their Religious 
Freedom?, Newark Star-Ledger, Feb. 6, 1997, at 26; Brief of 36 Religious 
Organizations, Leaders, and Scholars as Amici Curiae in Support of 
Respondents, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858), and 
Washington v. Glucksberg, 521 U.S. 702 (1997) (No. 96-110) (making this 
argument).  Under the Sherbert/Yoder regime, the Court would be right 
back in the strict scrutiny inquiry that Glucksberg avoided:  The Court 
would have to make those moral and empirical judgments that I described. 
Tom, do you think it would be good for these judgments to be made as a 
matter of constitutional law by the judiciary? 

Eugene 

-Original Message- 
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] On Behalf Of Berg, Thomas C. 
Sent: Tuesday, March 15, 2005 4:14 PM 
To: Law  Religion issues for Law Academics 
Subject: RE: Free Exercise, Free Speech, and harm to others 


I'd say that the problem of deciding as a constitutional matter which 
harms to others are real harms was only one problem of the Lochner 
cases.  At least two other problems were present there that are not 
present for free exercise exemption cases: 

 

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RE: Harm to others -- Please don't forget accommodations

[Berg, Thomas C.]

Would Marty (or anyone else) argue that a significant third-party harm is
sufficient in itself to invalidate a legislative accommodation of religion?
If so, why should it be sufficient, given that the government adjusts and
shifts burdens like this all the time to accommodate secular interests?  For
example, every deferment from the draft for graduate students, or for
persons with physical conditions that weren't seriously crippling, also
meant that some other young men [would] have to go off to kill and be
killed in place of the deferred or exempted.  Likewise, accommodations
required by the Americans with Disabilities Act always impose distinct
costs on the employer in question, and often on other employees as well.
 
Of course, the Establishment Clause may limit government action with respect
to the religious interest while no constitutional provision (post-New-Deal)
limits it with respect to secular interests.  But I'm not sure how
convincing it is to say that there's something offensive to the Religion
Clauses in asking private party A to bear significant costs in the service
of private party B's religious beliefs -- once we acknowledge that in a
crowded and interrelated society, accommodating one interest will often
involve shifting costs, even kinds that Marty calls distinct costs, to
others.  At the very least, we have to consider that the other half of the
Religion Clauses, the Free Exercise Clause, implies that religious
conscience is a particularly important interest.  If shifting costs -- even
distinct costs -- is an inevitable part of accommodating interests, then
some such shifting has to be allowed if religious conscience is to be given
the importance that the Free Exercise Clause implies.  That suggests, at the
least, a weighing of the relative burdens (the one removed from religious
conscience by the accommodation, and the one imposed on others), not just a
focus on the latter.
 
Tom Berg

  _  

From: Marty Lederman [mailto:[EMAIL PROTECTED]
Sent: Fri 3/18/2005 3:56 AM
To: Law  Religion issues for Law Academics
Subject: Re: Harm to others -- Please don't forget accommodations


Alan:  Thanks very much for that thoughtful reply.  To answer your discrete
question:  No -- I don't think that economic cost to the state itself
(e.g., lost tax revenue) should ordinarily count as a third-party harm
that should call accommodations into question, even though obviously such
costs are eventually borne by the people as a whole (e.g., each person's tax
burden is marginally higher).  However Texas Monthly should have been
decided (and I'm generally with the majority and the White concurrence), I
don't think it's a case where third party harms should drive the decision.
What I'm thinking of instead are the private parties who suffer (for lack of
a better word) direct harms from accommodations, such as the employers and
(especially) fellow employees in Thornton and Hardison, the young men who
will have to go off to kill and be killed in place of the religious
objectors in the draft cases, the students left to sit idly by in Zorach and
recent release-time cases, the long-time employee fired in Amos, the
children left unvaccinated -- and those exposed to such children -- where
there are religious exemptions to compelled-immunization statutes, etc. 
 
Indeed, I think this is an important distinction in the Cutter case that is
to be argued on Monday:  Ohio complains that RLUIPA imposes at least two
sorts of harms in prisons:  (i) administrative costs to the state in
complying with RLUIPA (i.e., time and money); and (ii) safety risks to
guards and fellow inmates.  I don't think that the former ought to play much
of a role in deciding whether a particular application of RLUIPA would
violate the Establishment Clause -- it's a harm to the state, and the
Religion Clauses do not protect the States, as such, from costs imposed by
the private exercise of religion (even though those costs are ultimately
distributed, and dispersed, to the taxpaying public as a whole).  (I realize
that Jefferson/Madison three pence rhetoric suggests otherwise.)  The
latter sort of cost, however -- risk of physical harm to guards and inmates
-- would implicate Establishment Clause concerns in cases where application
of RLUIPA actually imposed such costs.  But in such cases, the State should
simply prevail as a statutory matter under RLUIPA; and, in any event, those
applications do not call into question the statute's facial validity.
Here's what I wrote on that question in my amicus brief on behalf of
Senators Hatch and Kennedy in Cutter:
 
Respondents contend that some RLUIPA accommodations will endanger the safety
of prison guards and fellow prisoners. Br. in Resp. 12. Even if that
assumption were correct, the mere possibility of such as-applied problems
cannot possibly be grounds for invalidating section 3 on its face. In any
event, the assumption is mistaken, for two reasons: First, RLUIPA does not
appear to impose upon Ohio 

RE: Free Exercise, Free Speech, and harm to others

[Berg, Thomas C.]

But Eugene's position is also unattractive, I would suggest, because it
asserts that we should be free to practice our religion as long as it does
not harm others, and the government determines what is a harm to others,
without any constitutional review of that determination by the courts.  I
think that when you add that second assertion, his reading of the Free
Exercise Clause becomes unattractive, and in many cases just as out of line
with common intuitions about the scope of religious freedom as protecting
the religious conduct arguably would be in his hypotheticals.
 
Under Eugene's position, if the county board decides that this shall be a
dry county -- say, no serving of alcohol to any group of persons -- then the
serving of wine at a Catholic mass or the Jewish seder is barred with no
constitutional objection.  Under Eugene's view, the county board can say
all citizens of this county have a 'private right' not to have anyone in
the county drinking alcohol, or it can say even the smallest serving of
alcohol in a communion or seder cup threatens the public peace or harms
others.  This is because under Eugene's view, the legislature can define
anything as a private right or a harm or a threat to public peace.
(Even if the court can first declare the mass or seder protected under
Eugene's common law religious freedom approach, his position, as I
understand it, is that if the county board comes back and explicitly
declares the religious conduct illegal, the courts then may not question
that.)  The central worship service of Catholicism and other faiths can be
barred or drastically altered by the coercive force of law even though the
activity goes on regularly elsewhere across the nation without significant
real-world harm.
 
Perhaps Eugene would respond, This seems a perfectly attractive implication
of religious liberty to me.  But I doubt he'd say that, and if he did, I
think he would be out of line with most common intuitions about the scope of
religious freedom.  Or he might say, Yes, this is an unattractive result --
it would be great to protect the mass or other serving of small amounts of
sacramental alcohol -- but we have to accept this unattractive result
because it follows from the best theory of religious freedom.  But in that
case, I would make two responses:  (1) his theory no longer can lay claim to
be obviously the one whose applications accord with common intuitions; and
(2) his theory is a good deal more about institutional competence to measure
things like private rights and public peace than it is about the
normative principle of religious freedom.
 
I don't think it's obvious that these concepts are undefinable by courts and
therefore we have to defer to whatever the political branches say.  The
example of Jefferson's neither breaks my leg nor picks my pocket is
revealing because it invokes rights in one's physical integrity and one's
property that are individualized (rather than diffuse social effects) and
are part of the basic common-law framework that the Framers would have
assumed.  I don't think it follows from the Jefferson quote that the
legislature can define whatever it wants as a private right or as an
injury to another, without any further questions.
 
Tom Berg, University of St. Thomas (Minnesota)
 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Tue 3/15/2005 12:42 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise, Free Speech, and harm to others



I'm not saying that this is because of the original meaning, 
though I think the original meaning as to the Free Exercise Clause 
supports my position.  I think that a reading of the Free Exercise 
Clause that gives me the right to inflict harms on you, for no other 
reason than that I think my God requires (or motivates) me to do this, 
would be a pretty bad reading.  If the original meaning commanded this 
rule, then I'd conclude that we ought to follow it.  But if it doesn't 
command it -- and neither does the precedent, or anything else -- then I 
don't see why such a rule should be adopted.  Religious freedom defenses 
resting on the arguments that say[ing] there are twenty gods, or no God 
. . . neither picks my pocket nor breaks my leg, that religion should 
be immun[e] . . . from civil jurisdiction, in every case where it does 
not trespass on private rights or the public peace, and that we should 
be free to practice our religions so long as we do not injure others 
(Jefferson, Madison, McConnell) are appealing.  Arguments that others' 
religious conduct picks my pocket and breaks my leg, but it should still 
be constitutionally protected, that religion should be immune from 
civil jurisdiction, even in cases where it does trespass on private 
rights, and that we should be free to practice our religions even when 
we injure others are not. 

But if you think otherwise, what do you think of the three hypos 
that I pointed to (and which I repeat below)?  Do you 

RE: Free Exercise, Free Speech, and harm to others

[Berg, Thomas C.]

 or pure Sherbert.  In any event, I realize
the Smith regime reaches some unappealing results -- but I don't think that
as to sacramental wines, Sherbert or Yoder would likely reach any different
results.
 
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Tuesday, March 15, 2005 1:34 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise, Free Speech, and harm to others



But Eugene's position is also unattractive, I would suggest, because it
asserts that we should be free to practice our religion as long as it does
not harm others, and the government determines what is a harm to others,
without any constitutional review of that determination by the courts.  I
think that when you add that second assertion, his reading of the Free
Exercise Clause becomes unattractive, and in many cases just as out of line
with common intuitions about the scope of religious freedom as protecting
the religious conduct arguably would be in his hypotheticals.
 
Under Eugene's position, if the county board decides that this shall be a
dry county -- say, no serving of alcohol to any group of persons -- then the
serving of wine at a Catholic mass or the Jewish seder is barred with no
constitutional objection.  Under Eugene's view, the county board can say
all citizens of this county have a 'private right' not to have anyone in
the county drinking alcohol, or it can say even the smallest serving of
alcohol in a communion or seder cup threatens the public peace or harms
others.  This is because under Eugene's view, the legislature can define
anything as a private right or a harm or a threat to public peace.
(Even if the court can first declare the mass or seder protected under
Eugene's common law religious freedom approach, his position, as I
understand it, is that if the county board comes back and explicitly
declares the religious conduct illegal, the courts then may not question
that.)  The central worship service of Catholicism and other faiths can be
barred or drastically altered by the coercive force of law even though the
activity goes on regularly elsewhere across the nation without significant
real-world harm.
 
Perhaps Eugene would respond, This seems a perfectly attractive implication
of religious liberty to me.  But I doubt he'd say that, and if he did, I
think he would be out of line with most common intuitions about the scope of
religious freedom.  Or he might say, Yes, this is an unattractive result --
it would be great to protect the mass or other serving of small amounts of
sacramental alcohol -- but we have to accept this unattractive result
because it follows from the best theory of religious freedom.  But in that
case, I would make two responses:  (1) his theory no longer can lay claim to
be obviously the one whose applications accord with common intuitions; and
(2) his theory is a good deal more about institutional competence to measure
things like private rights and public peace than it is about the
normative principle of religious freedom.
 
I don't think it's obvious that these concepts are undefinable by courts and
therefore we have to defer to whatever the political branches say.  The
example of Jefferson's neither breaks my leg nor picks my pocket is
revealing because it invokes rights in one's physical integrity and one's
property that are individualized (rather than diffuse social effects) and
are part of the basic common-law framework that the Framers would have
assumed.  I don't think it follows from the Jefferson quote that the
legislature can define whatever it wants as a private right or as an
injury to another, without any further questions.
 
Tom Berg, University of St. Thomas (Minnesota)
 
messages to others.

application/ms-tnef___
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RE: Free Exercise, Free Speech, and harm to others

[Berg, Thomas C.]

I'd say that the problem of deciding as a constitutional matter which harms
to others are real harms was only one problem of the Lochner cases.  At
least two other problems were present there that are not present for free
exercise exemption cases:
 
(1) The asserted constitutional right in the Lochner cases rested on a
dubious or at least uncertain ground, substantive due process, versus an
explicit textual provision like free exercise, which has an extensive
background and history tied to the decision to enact it.  That background
and history includes the use of terms like private rights and public
peace, which it seems doubtful Madison and others would have meant to
collapse into whatever any legislature or political body says is a harm. 
 
(2) Challenges under Lochner logically aimed to strike down the entire law
as an interference with economic liberty in all its applications, whereas a
free exercise challenge to a generally applicable law seeks only an
exemption for the claimant and others similarly situated.  It is indeed more
difficult and complicated, and more a sortie into basic policy questions, to
say that a law as whole does not prevent real harms than to say that an
exemption for a particular claimant will not cause real harms.  In the
latter kind of analysis, judges can look at the facts and record adduced as
to this litigant and others like him; they are engaged in large part in the
fitting of particular facts into broader principles, which is what judges
commonly do.
 
Tom Berg
 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Tue 3/15/2005 4:32 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise, Free Speech, and harm to others


. . .
More broadly, I do ultimately support the Smith regime, which keeps the
courts out of the business of deciding as a *constitutional* matter which
harms to others are real harms and which aren't.  As I argue in my
Common-Law Model paper, that business was one of the problems of the Lochner
era cases, where some of the decisions (see, e.g., Adair) were indeed based
on a court's judgment that discrimination isn't a real harm that the
legislature can try to avoid.  At the same time, for reasons I explain
there, I think the state RFRA model, where courts are given the power to
carve out exemptions in the first instance, subject to legislative override,
is better than either pure Smith or pure Sherbert.  In any event, I realize
the Smith regime reaches some unappealing results -- but I don't think that
as to sacramental wines, Sherbert or Yoder would likely reach any different
results.
 
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Tuesday, March 15, 2005 1:34 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise, Free Speech, and harm to others



But Eugene's position is also unattractive, I would suggest, because it
asserts that we should be free to practice our religion as long as it does
not harm others, and the government determines what is a harm to others,
without any constitutional review of that determination by the courts.  I
think that when you add that second assertion, his reading of the Free
Exercise Clause becomes unattractive, and in many cases just as out of line
with common intuitions about the scope of religious freedom as protecting
the religious conduct arguably would be in his hypotheticals.
 
Under Eugene's position, if the county board decides that this shall be a
dry county -- say, no serving of alcohol to any group of persons -- then the
serving of wine at a Catholic mass or the Jewish seder is barred with no
constitutional objection.  Under Eugene's view, the county board can say
all citizens of this county have a 'private right' not to have anyone in
the county drinking alcohol, or it can say even the smallest serving of
alcohol in a communion or seder cup threatens the public peace or harms
others.  This is because under Eugene's view, the legislature can define
anything as a private right or a harm or a threat to public peace.
(Even if the court can first declare the mass or seder protected under
Eugene's common law religious freedom approach, his position, as I
understand it, is that if the county board comes back and explicitly
declares the religious conduct illegal, the courts then may not question
that.)  The central worship service of Catholicism and other faiths can be
barred or drastically altered by the coercive force of law even though the
activity goes on regularly elsewhere across the nation without significant
real-world harm.
 
Perhaps Eugene would respond, This seems a perfectly attractive implication
of religious liberty to me.  But I doubt he'd say that, and if he did, I
think he would be out of line with most common intuitions about the scope of
religious freedom.  Or he might say, Yes, this is an unattractive result --
it would be great to protect the mass or other serving of small

RE: Institutional Capacity to Manage Exemptions

[Berg, Thomas C.]

I dont get the argument
that individual victims of religious conduct or the public good are
rarely at the table in [religious freedom] litigation. Sometimes
they are directly at the table in that its a tort or other civil suit by
a plaintiff affected by religious conduct. Even if its a criminal
or regulatory case, these interests are regularly at the table in the sense
that the case doesnt exist unless the government entity is trying to
enforce the law in question against the religious claimant. Why doesnt
the enforcing agency represent the individual or the public good? We rely
on prosecutors and other executive officers to represent individual or social
interests in litigation all the time. If for some reason executive
officials are inadequate representatives of these interests, then our whole
system will have to change dramatically. Prosecutors and other executive
officials are also perfectly good at pointing out to judges the potential
implications of an exemption  in fact, in my experience they tend to
exaggerate the effects of exemption. And if executive officials are
inadequate, why would the legislature of the same government do any better?



If Marcis answer is that the compelling
interest test doesnt allow enough consideration of the effects on
others or society, then: (1) That would not be a reason for eliminating judicial
accommodations altogether; it would only be a reason for judging them under a
more intermediate standard. Marcis argument below seems to be
directed against judicial accommodations under any standard. (2) Its
simply not true that the compelling interest standard has ignored
the interests of others or of society. Anyone who has read the compelling
interest cases can see that courts have been quite willing to reject
religious freedom claims to protect those other interests. The question
is whether the religious freedom claim gets a judicial hearing.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday, March 09, 2005
10:00 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Institutional
Capacity to Manage Exemptions





I
completely agree with Alan these issues are not black and white. The
question is the lesser of two evils in determining accommodation: the courts or
the legislature. I think it is very hard to argue the courts are better suited
to make such a determination than a legislature. That is not to say
legislatures always get it right. No governing system always gets it
right. But, on average, they are better at asking whether this particular
accommodation has victims who need to be taken into account before it is
granted. The victims of religious conduct (whether they are individual or
the general public good)are rarely at the table in a litigation. 











You
seem to make the point that in the arena of fundamental rights, you
are inclined to presume that the public good is coincident with the
accommodation. I used to think that as well, but I do not now.
There is no fundamental right to engage in religious conduct, because conduct
has the inherent capacity to hurt others. But let's just assume that
religious conduct is a fundamental right; even so, there are often legitimate
competing fundamental rights, like a child's right not to die for his or her
parent's religious beliefs. This country must move beyond this easy
equation of accommodation and public good. They are wholly distinctive
and any accommodation granted without consideration of the public good holds
the potential to harm others.











We will
have to agree to disagree on how land use decisions are made. Given the
fact that public hearings are always required, it is hardly a bank teller
scenario. There are always multiple concerns and multiple factors, along
with state and local land use law, not to mention sec. 1983. The
unfettered discretion that was attempted to be painted in the RLPA hearings
underlying RLUIPA does not square with my experience in this arena.











Marci























To
follow up on Doug's point, one of the problem's I have with Marci's 
arguments about judicial exemptions and legislative accommodations is that 
it sometimes appears as if Marci views religious groups seeking legislative 
accommodations or constitutionally mandated exemptions as self interested 
actors concerned only with their own well being while she views legislative 
and administrative bodies as principled seekers and defenders of the public 
good.

Many of us see legislative and administrative decisions differently. These 
are often political responses to 

RE: Religious Neutrality and Voluntarism

[Berg, Thomas C.]

Marci writes:  The right default position is the rule of law, but it is
good for everyone when accommodation can be provided and the public good is
not undermined.
 
First, I would have thought that this is the very goal of RFRA and RLUIPA,
the statutes that Marci so vigorously opposes:  to provide accommodation
subject to the caveat that the accommodation must not undermine a strong
public interest.  I have never understood the assertion that is impossible
for judges (applying such a statute) to determine whether, on a particular
set of facts, a religious claim would undermine any important purposes that
a law serves.
 
Second, we should remember that, at least as far as the Framers and de
Tocquville were concerned, free religious exercise itself would tend to
promote the public good (by developing virtue in citizens, establshing a
limit on the reach of government, and so forth).  In the historical view
underlying the First Amendment, it would not simply be a matter of weighing
a libertarian right to practice as against the public interest.  There is an
element of the public interest on the side of free religious practice, and
that is part of the reason why religious freedom should only be defeated
based on a strong showing of public interest (not just a mere invocation of
the public good).
 
Tom Berg
 

  _  

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Sat 3/5/2005 4:08 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Religious Neutrality and Voluntarism


Tom-- I actually think the argument about increasing regulation taking the
air out of religious belief is something of a red herring in this arena.  A
great deal of regulation is what makes people free, e.g., laws that prohibit
child abuse, or spousal abuse, or discrimination on any number of
categories.  To think that the lack of regulation at the time of the framing
or soon thereafter can be correlated in any neat fashion with more liberty
does not wash.  Moreover,numerous  laws exist that do in fact increase
religious liberty, many of them accommodations, including income tax
exemption, private tax deductions, and exemptions for faith-healing parents.
Actually, I am not opposed to accommodation at all, but rather legislatures
that do not consider the public good when they enact exemptions.  The right
default position is the rule of law, but it is good for everyone when
accommodation can be provided and the public good is not undermined (this is
in fact the thesis of my forthcoming book, God vs the Gavel)
 
As to this new formulation of the debate that the public funding of schools
and social services means that religious entities puts religious entities at
a relative disadvantage, I am still formulating my views.  It is a variation
of the equality-should-displace-disestablishment- principles (e.g.,
Rosenberger, opponents to Locke v. Davey).  Preliminarily, I think this is
one of those arenas where the notion of equality and claims of
discrimination hide more than they illuminate.
 
Marci 
 

what constitutes religious neutrality and
voluntarism becomes more complicated in an atmosphere of active, pervasive
government.  First, while religious life has been vital even without
government promotion of religion in public schools etc., I suspect that this
vitality has a lot to do with the fact that government has also historically
shown regard for the freedom of private religious activity, either by not
legislating in an area at all or by exempting religious organizations and
individual religious conscience  from restrictive laws.  (This is what I
meant when I said that the better course for religious vitality is not
government sponsorship, but rather government steps to preserve a vigorous
private sector in religion.)  But Marci, of course, very often fights
against such exemptions -- on the ground that religion should be subject to
whatever laws everyone else is, even in the modern world in which there are
many more restrictive laws than there used to be.

Second, active government also complicates the issue of government financial
aid going to religious schools, social services, and so forth.  It's true
that such aid poses the risk of making religious organizations dependent on
government rather than on their own vigor (historically this risk is one of
the prime reasons for opposing government aid to religious organizations).
But active government also subsidizes the competitors to religious schools
and social services -- public services and secular private services -- and
this subsidization of competitors likewise threatens the ability of
religious organizations and communities to succeed based on the power or
attractiveness of their beliefs.  You're not competing on your own merits if
your competitors can charge less, or save costs, because they get government
subsidies.  Given this fact, I think that religious organizations and
individuals generally should be allowed to decide whether they want to
participate in government funding 

RE: Protestants and non-Protestants

[Berg, Thomas C.]

Marci  Maybe I
should be proud to coin a term, although its likely too ugly to catch
on. I just meant to refer to the idea that when the Court bans or removes
government-sponsored religious symbols or ideas, while leaving secular symbols
and ideas intact, this makes government more secular than the society is.
If government is a major player in _expression_ in society, then government can have
a real effect of secularizing society. You can make the case that this is
true with respect to public education, when the government plays such a huge
role in forming children day after day. If public schools promote various
secular ideas to children but not religious ideas, this creates the danger of
skewing them toward the secular. As I said, I dont think that the
answer to this is to maintain government sponsorship of religion or particular
religious ideas; such sponsorship has many problems, and there are usually better
alternatives. But my points were that: (1) The belief that
government is having this secularizing effect, and that its a problem,
is (rightly or wrongly) held by people across varying faiths, not just by evangelical
Protestants. (2) To ensure that a secular government doesnt
secularize society, government can take steps to preserve a vigorous private
sector in religion.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J. Murphy Institute

 for Catholic
Thought, Law, and Public Policy

University of St. Thomas School of Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday, March 02, 2005
8:53 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Protestants and
non-Protestants







Tom--
What is artificial secularization? I've never heard that term
before. 











Marci

















In a
message dated 3/2/2005 8:10:47 P.M. Eastern Standard Time, [EMAIL PROTECTED]
writes:





think
that we avert our eyes to reality if we don't acknowledge that
traditionalist believers from different faiths now very often share the
belief that removal or barring religious symbols from public events or
institutions is a form of artificial secularization that is not consistent
with the Religion Clauses. This is not just a fundamentalist or
evangelical
Protestant thing. As to whether that belief is correct, my own view is
that
removing these influences does raise real concerns about artificial
secularization, but that usually the far better approach is to welcome
private religious speech of various groups into the public square and public
institutions, rather than have the state sponsor what will typically be
watered-down majoritarian practices. But the point is that the belief is
there among people of various faiths.
















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RE: Ten Commandments: My Prediction

[Berg, Thomas C.]

I am not a supporter of 10 Commandments displays, and the following point,
in my view, does not fundamentally change the proper result in these cases.
But I don't agree with Steve Jamar's claim that it is really just one sect,
protestants, that push to establish state sponsorship or endorsement of
religion (by which I assume he includes 10 Commandments displays).
 
(1) The MSNBC site that someone linked to earlier reports that [a]n
AP-Ipsos poll taken in late February found 76 percent [of Americans]
supportive of and 23 percent opposed to Ten Commandments displays (
http://www.msnbc.msn.com/id/7053335/
http://www.msnbc.msn.com/id/7053335/).  This must mean that many
non-Protestants support them as well.
(2) Certainly a significant number of Protestants do not support
such displays, which not only indicates that it is overbroad to attribute
the displays to Protestants in general, but also strengthens the inference
that many non-Protestants must support them.
(3) In particular, religious displays commonly receive an
affirmative push (not just passive agreement) from some conservative
Catholic and Jewish groups.  In the Texas case, for example, briefs
supporting the display were filed by COLPA, the coalition of Orthodox Jewish
bodies that often supports such displays (see 2005 WL 263786); by the Thomas
More Law Center, a conservative Catholic organization (2005 WL 226922); and
by a number of social-conservative groups that include lots of Catholics.
Catholic groups have pushed for and/or defended displays in many places,
like Jersey City, NJ, that are heavily Catholic rather than Protestant (see,
e.g., ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)); see also Sunnum v.
Duchesne City, 340 F. Supp. 1223 (D. Ut. 2004) (Thomas More Center
litigating defense of display in Utah); Allegheny County, 492 U.S. 573
(1989), where the Pittsburgh creche was paid for by a Catholic group, and
the menorah was provided by Chabad Lubavitch.
 
The fight over these displays is not a fight between Protestants and
non-Protestants, as Steve's comment suggests.  It fits more comfortably into
the very different divide between cultural conservatives (of varying faiths)
and cultural progressives -- with the conservatives in this case being
joined (in terms of opinion polls) by most of the large middle of the nation
who aren't culture warriors.  The large middle isn't hepped on such
displays, but they don't see any harm from them either, and they account for
the level of support reaching as high as 76 percent.
 
This is not to defend state sponsorship of the 10 Commandments through
displays.  That a large majority supports them (however low-key the support)
of course doesn't make them constitutional, especially if we see the First
Amendment as particularly a guarantor of minority rights.  And the very fact
that a lot of the poll support comes from people who probably don't care
very much provides an argument that the displays can cheapen serious faith.
 
But I do think that to reduce this to a Protestant vs. non-Protestant issue
is incorrect.  The traditionalist-progressive divide is necessary to explain
this dispute, as well as, I would suggest, many other Religion Clause
disputes.  (With apologies for self-promotion, I write at length about these
different maps of religious divides in a draft piece on Minority Religions
and the Religion Clauses, downloadable at http://ssrn.com/abstract=594604
http://ssrn.com/abstract=594604 .)  
 
Tom Berg
University of St. Thomas School of Law, Minneapolis
 

  _  

From: Steven Jamar [mailto:[EMAIL PROTECTED]
Sent: Wed 3/2/2005 2:11 PM
To: Law  Religion issues for Law Academics
Subject: Re: Ten Commandments: My Prediction



US law on establishment is decidedly different from that of most of the
world. Indeed, most states do not have a prohibition on establishment, just
a guarantee of free exercise. I do not think that the US needs to have
establishment law as it does to preserve religious freedom, but as it has
developed, we have built this wall and it should be maintained. We should
also keep in mind the US history with respect to religion, its huge variety
of religious traditions, and the fact that it is really just one sect,
protestants, that push to establish state sponsorship or endorsement of
religion. 


I personally do not think that many bad consequences would happen if we were
to undo our establishment jurisprudence to allow a lot more state
sponsorship, but I prefer keeping them separate as we do. 


Steve 


On Wednesday, March 2, 2005, at 02:48 PM, A.E. Brownstein wrote: 


And consistent with having a decent respect to the opinions of mankind, it
would be appropriate for an American constitutional court to explain why
American constitutional law reaches a different conclusion with regard to
state establishments of religion than do other Western democracies, just as
we reach different conclusions about the regulation of hate speech and other
liberty and 

RE: Protestants and non-Protestants

[Berg, Thomas C.]

In response to Steve:
 
Prayers starting school:  It's not much of a live issue now, but when the
original school prayer case came out, a number of Catholic bishops (most
notably Cardinal Spellman of NY) strongly criticized it on the ground that
it would secularize the public schools.  On other kinds of public school
prayer, Lee v. Weisman -- the graduation prayer case -- came from
Providence, Rhode Island, which is hardly a Protestant bastion, and I'm
willing to bet that graduation prayers were widespread throughout the
country, not just in Protestant-dominated areas.
 
Prayers at football games:  I can't think of examples, but that might say
more about how football is a religion in the South and the Midwest
(Protestant-dominated areas) than it does about Protestant vs. Catholic
attitudes toward public prayers.
 
Like Eugene, I don't understand Steve's reference to using religious
arguments as superior to positive law.
 
Creches:  As Eugene and I pointed out, the creche in Allegheny was paid for
by a Catholic group.  
 
Young earth creationism:  Steve carefully qualifies the belief so that it
only applies to fundamentalist Protestants with their literal interpretation
of Genesis.  If you expand the challenge to evolution to include
intelligent-design theories that don't rely on the Bible, you will find
conservative Catholic groups supporting these challenges.  And I predict
that this will increase as the issues in the culture war more and more move
traditionalists of various faiths to line up against progressives of
various faiths.  On the website of the Thomas More Law Center,
http://www.thomasmore.org/resources.html
http://www.thomasmore.org/resources.html , the conservative Catholic group
to which I referred earlier, there are petitions to support maintaining
religious imagery in a city seal and a cross on public property, and a
booklet emphasizing the rights of students to raise questions about how
evolution is taught in public schools.
 
I think that we avert our eyes to reality if we don't acknowledge that
traditionalist believers from different faiths now very often share the
belief that removal or barring religious symbols from public events or
institutions is a form of artificial secularization that is not consistent
with the Religion Clauses.  This is not just a fundamentalist or evangelical
Protestant thing.  As to whether that belief is correct, my own view is that
removing these influences does raise real concerns about artificial
secularization, but that usually the far better approach is to welcome
private religious speech of various groups into the public square and public
institutions, rather than have the state sponsor what will typically be
watered-down majoritarian practices.  But the point is that the belief is
there among people of various faiths.
 
Tom Berg
University of St. Thomas School of Law, Minnesota
 
 
 

  _  

From: Steven Jamar [mailto:[EMAIL PROTECTED]
Sent: Wed 3/2/2005 5:55 PM
To: Law  Religion issues for Law Academics
Subject: Re: Ten Commandments: My Prediction



Ok, but I've not seen Catholics or Jews or Muslims pushing for: 

prayers starting school 

prayers at football games 

using religious arguments as superior to positive law 

young-earther anti-evolution creationism 

creches 


I do not recall seeing any Catholics or Jews pushing this as part of their
agendas, either. 


No doubt some, perhaps many, even most Catholics and perhaps many, perhaps
most Jews support it -- but they are not the ones pushing it. I stand by my
comment as made. 


On Wednesday, March 2, 2005, at 06:06 PM, Berg, Thomas C. wrote: 


I am not a supporter of 10 Commandments displays, and the following point,
in my view, does not fundamentally change the proper result in these cases.
But I don't agree with Steve Jamar's claim that it is really just one sect,
protestants, that push to establish state sponsorship or endorsement of
religion (by which I assume he includes 10 Commandments displays). 

  


-- 

Prof. Steven D. Jamar vox: 202-806-8017 

Howard University School of Law fax: 202-806-8567 

2900 Van Ness Street NW mailto:[EMAIL PROTECTED] 

Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ 


I do not at all resent criticism, even when, for the sake of emphasis, it
for a time parts company with reality. 


Winston Churchill, speech to the House of Commons, 1941 

application/ms-tnef___
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RE: 21st Century Zorach

[Berg, Thomas C.]

I thoroughly agree that the school should not stick the other students
(those not attending religious instruction) in a wasted time period or in
other ways structure the program so as to push students toward religious
instruction.  Because of the difficulty of setting up a religion-only
release-time program that doesn't create such an incentive, I agree with
others that more across-the-board programs, like a general earlier release
with after-care options, are better.

However, I don't we should let pass Chip's claim that compulsory schooling
that must not have religious content (unless you can afford to pay
private-school tuition for it) imposes no burden on religious students and
families.  When you combine 6-7 hours a day of classes with 1-2 hours (or
more in upper grades) of required homework each night, schooling can take up
as much as three-quarters of a student's waking hours during the week.  I
don't believe that the degree of state-imposed burden to justify a
legislative/administrative accommodation necessarily has to be as much as
would warrant a constitutionally mandated accommodation -- again, as long as
the program does not create incentives to go to the religious instruction
(as these programs apparently often do).

Finally, of course, release-time programs do not accommodate the religious
need of some families to have religious instruction integrated into other
academic subjects rather than in a separate course.  Only school choice
programs that include religious schools can address that problem.  I view
release time as something of a distraction from the main issue.

Tom Berg
University of St. Thomas School of Law (Minnesota)



---
Thomas C. Berg
Professor of Law
University of St. Thomas School of Law
MSL 400 -- 1000 La Salle Avenue
Minneapolis, MN  55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: [EMAIL PROTECTED]
---
 
 
 

-Original Message-
From: Lupu [mailto:[EMAIL PROTECTED] 
Sent: Friday, February 18, 2005 1:53 PM
To: Law  Religion issues for Law Academics
Subject: Re: 21st Century Zorach

Accommodation is only a legitimate argument or concern if the state 
is creating a burden on religious freedom.  But there is no conflict 
between compulsory education and religious education, because 
there are ample days and hours in which parents are free to 
educate their children in the ways of their faith. The only state-
imposed burden in this story is the one imposed on the students left 
behind.Released time is an anti-accommodation to the students 
who don't participate.

Chip (every government promotion of religion can be conveniently 
labelled an accommodation) Lupu

 Jim Henderson wrote:

Isn't there something to be said for accommodation? Here comes 
big old bully State, grabs parents by the lapels, and threatens life, 
liberty and property unless child is put in a school setting from age 5 
to as late as age 20, for as many as 7 to 8 hours a day, for at least 
180 days in the year, including all weekdays. The interposition, of 
course, is welcomed by parents who are daunted by the process of 
educating their own children, or who lack skills necessary to do so. 
But it is an interposition by force of law. And its impact is not 
lessened by the fact that some parents choose to spend extra 
money on top of their property taxes to school their children in 
private schools or at home.

So bully State is pushing parents around, and one small 
accommodation of need for religious training is made. What 
constitutional provisions other than the religion clause have been 
interpreted to allow (not require) accommodation?

Jim Religion Can't Be Different Only When You Want to Squish 
Religionists Henderson
Senior Counsel
ACLJ


Ira C. (Chip) Lupu
F. Elwood  Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

[EMAIL PROTECTED]
[EMAIL PROTECTED]

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RE: SG Application for Stay of Hoasca Tea Injunction

[Berg, Thomas C.]

The Christian Legal Society, joined by a
number of other Christian groups, evangelical and mainline, filed amicus briefs
at both the panel and the en banc stages. See http://www.clsnet.org/clrfPages/amicus/UDV.pdf.



The en banc opinion of Judge Seymour,
which in this part of the opinion speaks for a majority of the en banc judges,
states: Lending
their voice as amici curiae in
support of the UDV's position are a variety of other religious organizations.
Among these groups are the Christian Legal Society, the National Association of Evangelicals,
Clifton Kirkpatrick, as the Stated Clerk of the General Assembly of the
Presbyterian Church, and the Queens Federation of Churches, Inc. The presence
of these varied groups as advocates for the UDV further highlights the vital
public interest in protecting a citizen's free exercise of religion.
2004 WL 2569531 at *31
n.6.



Tom Berg

University of St.
  Thomas, Minnesota








---

Thomas C. Berg

Professor of Law

University of St. Thomas School of
  Law

MSL 400 -- 1000 La Salle Avenue

Minneapolis, MN 55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: Marty Lederman
[mailto:[EMAIL PROTECTED] 
Sent: Monday, December 06, 2004
12:33 PM
To: Law 
 Religion issues for Law Academics
Subject: Re: SG Application for
Stay of Hoasca Tea Injunction





As I
note below, the respondents have now filed their opposition to the SG's
application of a stay of the preliminary injunction granting a RFRA
exemption. I'm curious: This is certainly the most important case
yet concerning the application of RFRA to federal law.To what
extent are proponents and opponents of RFRA/RLUIPA planning to get involved --
or already involved -- in the case?











http://www.goldsteinhowe.com/blog/archive/2004_12_05_SCOTUSblog.cfm#110235741861393497.












 
  
  Respondents' Opposition to Stay
  Application in Hoasca Tea Case 
  
 
 
  
  The UDV and other respondents have filed their opposition
  to the SG's emergency application for a stay of the preliminary injunction in
  No. 04-A469, Ashcroft
  v. O Centro Espirita Beneficiente Unaio Do Vegetal, the RFRA case involving a requested exemption from the
  Controlled Substances Act for the religious ceremonial use of hoasca tea. As I discussed last week,
  the respondents not surprisingly argue (e.g., at pages 6, 11 n.11) that the
  government will not be able to demonstrate that it has a compelling interest
  in denying religious use of hoasca while it at the same time permits the
  religious use of peyote. The respondents also argue (p. 32-33) that, even if
  permitting the use of hoasca would cause the U.S. to violate the Convention
  on Psychotropic Substances (a conclusion that respondents dispute as a matter
  of treaty interpretation), the other nations that are party to the Convention
  would not consider such permitted hoasca use to be a treaty violation -- from
  which respondents conclude that the U.S. has failed to show that its standing
  among nations would be injured if RFRA requires the exemption.
  
 








-
Original Message - 





From: Marty
Lederman 





To: Law
 Religion issues for Law Academics 





Sent: Thursday, December 02,
2004 4:07 PM





Subject: SG
Application for Stay of Hoasca Tea Injunction











I've
posted the following notice on SCOTUSblog: http://www.goldsteinhowe.com/blog/archive/2004_11_28_SCOTUSblog.cfm#110202070029645176.


















 
  
  Temporary Stay of Injunction in
  Hoasca Tea Case 
  
 
 
  
  Three weeks ago, the en banc U.S. Court of Appeals for the Tenth
  Circuit upheld a preliminary injunction that would prevent
  the U.S. government from enforcing the Controlled Substances Act with respect
  to the importation, possession and distribution of hoasca (a tea containing
  dimethyltryptamine, or DMT, a substance regulated under Schedule I of the
  Act) for use in religious ceremonies of a church known as O Centro Espirita
  Beneficients Uniao Do Vegetal, or UDV. The court of appeals'
  mandate issued on Tuesday.
  
  Yesterday, the Acting Solicitor General moved the Supreme Court to stay
  the preliminary injunction pending a filing of a cert. petition, and made an
  emergency application to the Court for a temporary stay of the injunction
  pending the disposition of the Government's motion to stay the injunction.
  
  
  Justice Breyer granted the application for a temporary
  stay, pending disposition of the motion for a stay pending petition. He
  ordered the plaintiffs to file responsive papers by the end of the day
  tomorrow (Friday), with the SG's reply due on Tuesday.
  
  The injunction is based upon the Religious Freedom
  Restoration Act (RFRA), which requires the United States to grant an
  exemption to one of its laws when the law substantially burdens the exercise
  of religion, unless 

RE: Florida Voucher Decision

[Berg, Thomas C.]

I haven't read the Florida decision yet; but I've heard such reasoning
before.  As Marty describes the reasoning, it is inconsistent with the
premises and result of Widmar, and indeed of a vast number of other
public-forum cases.  In Widmar, the Missouri state constitutional principle
singling out religious groups for exclusion (in the name of strict
separation) was overridden by the federal constitutional right of equal
access.  The result was that the state university must *either* close its
classrooms to student groups on a religion-neutral basis *or* allow the
religious group to meet.  Had the Widmar Court given any shrift to the kind
of argument in Florida that Marty describes, the only permissible remedy
would have been to close the classrooms.  Widmar clearly did not do that:
it gave the state the choice of how to comply with the federal equal-access
requirement.  I realize that Widmar does not explicitly reject the
Florida-type reasoning; but it seems to me that it does so implicitly. 
 
The Florida court's argument wouldn't just apply in Widmar, it seems to me;
it would apply, and change the result, in *every* equal-access case in which
the direct decisionmaker who denied equal access (such as a local school
principal) was acting under a rule promulgated by higher authority -- say, a
school-district rule, or a state statutory or administrative rule.  The
latter, as I recall, was at issue in every one of the equal-access cases
from New York, including Lamb's Chapel, Good News Club, and Bronx Household.
In those cases, too, under the Florida court's logic, the direct
decisionmaker would have *no choice* but to close its forum -- in order to
comply with both the federal Constitution and the local/state rule governing
the direct decisionmaker.  The fact that the local/state rule is not a state
constitutional provision makes no difference to the theory.  Nor does it
make any difference that the equal access is to generally available funding
rather than generally available faciltities.  In any of these cases, under
the Florida court's theory, the court *must* order the closing of the forum
so that both provisions can be complied with.
 
Nor is the Florida theory limited to cases involving exclusions of religion,
it seems to me.  It would apply to the exclusion of any viewpoint --
political, gay rights, etc. -- whenever that exclusion was mandated by a
state or local rule above the level of the actual decisionmaker in the case.
In any such case, the court could, and therefore *must*, satisfy both the
state/local rule and the federal free speech rule of viewpoint neutrality by
ordering the decisionmaker to close its forum more broadly.
 
Needless to say, accepting this argument would dramatically alter the
equal-access principle in a very large number of cases and would remove what
I and others have taken to be a fundamental premise of the principle:  that
the decisionmaker has a choice of closing the forum *or* allowing access to
the excluded group.  I don't have a set of string cites on hand that the
result is such a choice, but I'm sure that such statements exist.
 
I think that the implicit premise of Widmar and other equal-access decisions
is that if a state provision requires the singling out of religious groups
for exclusion beyond the extent demanded by the Establishment Clause, then
that provision cannot be given effect so as to limit the decisionmaker's
discretion.  Such a provision is itself constitutionally flawed because it
is inherently discriminatory in singling out religious activity for
exclusion.  Such an inherently flawed provision cannot bind the
decisionmaker -- even if the court also throws in some other restrictions in
order to make its ultimate order nondiscriminatory.  In Widmar, the Missouri
constitutional provision for strict separation of church and state singled
out religious activity beyond the degree demanded by the Establishment
Clause.  It therefore was discriminatory and could not be given effect to
force the state university into denying access to classrooms across the
board.  The state or local decisionmaker *may* follow such a neutral course
of forum closure, but it cannot be forced to do so by a state provision that
is itself unconstitutional.
 
Put differently, the federal constitutional flaw is in the discriminatory
nature of the state provision itself, not just in that it might actually
lead to a discriminatory treatment of the religious group.  And the legal
challenge in equal-access cases -- including in the voucher context --
includes a challenge to the state provision itself, not just to the
discriminatory decision by the direct decisionmaker.
 
Therefore, I would argue, a court in a voucher case has to decide whether
the state no-aid provision is itself flawed -- under a Lukumi or Blaine
Amendment animus type challenge.   It can't avoid such a challenge by
saying even if the state provision is fundamentally flawed, we can still
apply it and also give equal 

RE: Florida Voucher Decision

[Berg, Thomas C.]

, hypothetically, if the Florida court is wrong)
prohibited discrimination.  Therefore there is no conflict between the two
constitutions, and the lower-level state actors must honor both.
 
I genuinely do not know whether this is correct -- but I think that it is a
question of state, not federal, law.  This is essentially the conclusion
that Van Alstyne reached in an analogous context in his Thirty Pieces of
Silver article -- that if Congress offers the state funds only on a
condition that the state do something that is independently barred by the
state's own constitution, the state has no choice but to decline the federal
funds.  On the other hand, Lead/Deadwood suggests otherwise, and would
probably be support for Tom's theory.
 
 
 
  
- Original Message - 
From: Berg, Thomas C.  mailto:[EMAIL PROTECTED] [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics 
mailto:[EMAIL PROTECTED] [EMAIL PROTECTED]
Sent: Saturday, November 13, 2004 11:03 AM
Subject: RE: Florida Voucher Decision


I haven't read the Florida decision yet; but I've heard such reasoning
 before.  As Marty describes the reasoning, it is inconsistent with the
 premises and result of Widmar, and indeed of a vast number of other
 public-forum cases.  In Widmar, the Missouri state constitutional
principle
 singling out religious groups for exclusion (in the name of strict
 separation) was overridden by the federal constitutional right of equal
 access.  The result was that the state university must *either* close its
 classrooms to student groups on a religion-neutral basis *or* allow the
 religious group to meet.  Had the Widmar Court given any shrift to the
kind
 of argument in Florida that Marty describes, the only permissible remedy
 would have been to close the classrooms.  Widmar clearly did not do that:
 it gave the state the choice of how to comply with the federal
equal-access
 requirement.  I realize that Widmar does not explicitly reject the
 Florida-type reasoning; but it seems to me that it does so implicitly. 
 
 The Florida court's argument wouldn't just apply in Widmar, it seems to
me;
 it would apply, and change the result, in *every* equal-access case in
which
 the direct decisionmaker who denied equal access (such as a local school
 principal) was acting under a rule promulgated by higher authority -- say,
a
 school-district rule, or a state statutory or administrative rule.  The
 latter, as I recall, was at issue in every one of the equal-access cases
 from New York, including Lamb's Chapel, Good News Club, and Bronx
Household.
 In those cases, too, under the Florida court's logic, the direct
 decisionmaker would have *no choice* but to close its forum -- in order to
 comply with both the federal Constitution and the local/state rule
governing
 the direct decisionmaker.  The fact that the local/state rule is not a
state
 constitutional provision makes no difference to the theory.  Nor does it
 make any difference that the equal access is to generally available
funding
 rather than generally available faciltities.  In any of these cases, under
 the Florida court's theory, the court *must* order the closing of the
forum
 so that both provisions can be complied with.
 
 Nor is the Florida theory limited to cases involving exclusions of
religion,
 it seems to me.  It would apply to the exclusion of any viewpoint --
 political, gay rights, etc. -- whenever that exclusion was mandated by a
 state or local rule above the level of the actual decisionmaker in the
case.
 In any such case, the court could, and therefore *must*, satisfy both the
 state/local rule and the federal free speech rule of viewpoint neutrality
by
 ordering the decisionmaker to close its forum more broadly.
 
 Needless to say, accepting this argument would dramatically alter the
 equal-access principle in a very large number of cases and would remove
what
 I and others have taken to be a fundamental premise of the principle:
that
 the decisionmaker has a choice of closing the forum *or* allowing access
to
 the excluded group.  I don't have a set of string cites on hand that the
 result is such a choice, but I'm sure that such statements exist.
 
 I think that the implicit premise of Widmar and other equal-access
decisions
 is that if a state provision requires the singling out of religious groups
 for exclusion beyond the extent demanded by the Establishment Clause, then
 that provision cannot be given effect so as to limit the decisionmaker's
 discretion.  Such a provision is itself constitutionally flawed because it
 is inherently discriminatory in singling out religious activity for
 exclusion.  Such an inherently flawed provision cannot bind the
 decisionmaker -- even if the court also throws in some other restrictions
in
 order to make its ultimate order nondiscriminatory.  In Widmar, the
Missouri
 constitutional provision for strict separation of church and state singled
 out religious activity beyond the degree demanded by the Establishment
 Clause

RE: Required to stand for the Pledge?

[Berg, Thomas C.]

Steve Smith's article Barnette's Big Blunder (78 Chi.-Kent L. Rev. 625
(2003)) directly addresses this question and argues pretty convincingly, as
I remember, that the passage quoted below is misguided if it is read
precisely as written.  The government  decide[s] what shall be orthodox in
politics all the time, in the sense of advancing policies and attempting to
convince the public that they are right.  Steve shows that the connective
word or in the passage below should be replaced by and:  what government
is forbidden to do is declare a political orthodoxy *and* force others to
confess it.
 
Tom Berg
University of St. Thomas (Minnesota)

  _  

From: Robert O'Brien [mailto:[EMAIL PROTECTED]
Sent: Fri 9/10/2004 8:03 PM
To: Law  Religion issues for Law Academics
Subject: Re: Required to stand for the Pledge?





 Mark Scarberry is dead on; the school can attempt to persuade the 
 student to say the secular parts of the Pledge.  Government can lead 
 opinion, or attempt to, on secular matters, but not on religious 
 matters. 

Does this not conflict with the key passage of Barnette:  No public 
official, high or petty, can decide what shall be orthodox in politics, 
nationalism, religion, or other matters of opinion or force others to 
confess their faith therein by word or deed? 

Bob O'Brien 



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RE: Required to stand for the Pledge?

[Berg, Thomas C.]

I guess that Eugene has already offered my response to Professor Lipkin.  It
seems to me that there are many instances in which the government or
government officials advocate political views with great force and suggest
that those who disagree are fundamentally misguided, or missing the basic
point of being American, etc.  Can Barnette really suggest that some such
political statements violate the First Amendment just in themselves, by
their mere declaration -- i.e. without any use of government force to
require citizens to say them or forbid citizens to criticize them?
 
The Pledge itself, the very context of Barnette, is a declaration of
canonical beliefs to which citizens pledge allegiance, such as that we are
a republic, an indivisible one, with liberty and justice for all.  To use
Professor Lipkin's phrases, if anything in America seems like a standard of
fidelity or a standard of orthodox commitments, the Pledge does.  Yet
Barnette has consistently been read to mean that the government can conduct
pledge exercises, even in elementary schools, as long as it lets students
opt out.  (For these purposes, of course, we're setting aside the religion
clause question about under God, and looking just at the political content
of the Pledge.)
 
Professor Lipkin's answer is that declaring an orthodoxy (as used in
Barnette) means only literally declaring a view that one is [not] free to
argue against.  But then wouldn't the Court have been much clearer if it
said government may not declare a view and forbid citizens to argue against
it?  Instead, the passage just uses declare alone in that phrase, and the
reference to forcing citizens is joined by the disjunctive or --
suggesting that government merely declaring a political view can sometimes
in itself be unconstitutional (in some unclear category of cases).
 
Moreover, trying to maintain a distinction between orthodox commitments
that the government may not constitutionally declare and policy choices that
it may declare creates problems for the second half of the sentence -- the
idea that government may not force others to confess the position.
Professor Lipkin calls the tax-cutting position just a policy choice; but
we'd all agree that under Barnette the government may not force people to
confess that tax-cutting is desirable or morally right.  The can't force
people to confess rule doesn't make any distinction between fundamental
commitments and mere policy choices. And therefore, I'd argue, it's
problematic to read such a distinction into the first half of the sentence
-- since the second half refers, by use of a pronoun, directly back to the
first (i.e., government can't force others to confess *it*).
 
Even if Professor Lipkin's argument is a reasonable reading of the Barnette
passage, I think the point still holds that the passage is imprecisely
written at best and suggests some constitutional restrictions on government
political speech that can't really be valid restrictions.
 
Tom Berg
University of St. Thomas (Minnesota)
 
 
 
 

  _  

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Sat 9/11/2004 9:57 AM
To: [EMAIL PROTECTED]
Subject: RE: Required to stand for the Pledge?


 In a message dated 9/11/2004 2:09:56 AM Eastern Standard Time,
[EMAIL PROTECTED] writes: 

The government  decide[s] what shall be orthodox in
politics all the time, in the sense of advancing policies and attempting to
convince the public that they are right.  

Although, I haven't read the article, I think it is conceptually
inaccurate to conflate what is orthodox with advancing policies and
attempting to convince the public that [the government] is right. The idea
of orthodoxy, as its used typically in religion (for example, Orthodox
Judaism) as well as in secular contexts, connotes canonical belief that is
not subject to challenge. Advancing policies, etc, as I understand it,
carries no such obligation.  I do not see how questions of orthodoxy arise,
when, for example, President Bush asks us to accept the view that lowering
taxes is the right policy choice.  Sure he wants to convince us that he's
empirically correct in connecting lower taxes to more jobs, etc, in this
context and perhaps in most contexts.  However, the question of orthodoxy or
heresy doesn't seem to arise.  The President is not (or should not be)
articulating some standard of fidelity, he's simply saying that he is right
about an economic controversy. Indeed, as I've understood American
constitutionalism, perhaps erroneously, fidelity to constitutional
government is not even orthodoxy in the sense that one is free to argue
against its desirability. A particular administration might declare certain
values as the canonical values, but merely arguing for a particular policy
choice doesn't itself entail that the government is doing so.  Sure there
will be difficult cases.  But the difficulty of deciding whether certain
government pronouncements are attempts to establish orthodox commitments or

RE: Establishing orthodoxy

[Berg, Thomas C.]

Right, my mistake -- the word in the first part of the Barnette sentence is
not declare, but prescribe, which can suggest the government forbidding
criticism of the view.  More so when put together with orthodox in the
sentence, as Professor Lipkin argues; so I take his point on that score.
 
I do think that that has to be the distinction:  government can advance
political views, but it can't use force to require their confession or
forbid criticism of them.  The distinction shouldn't be between government
advancing views as canonical in the sense of somehow essential to being an
American (not OK), versus government advancing views as mere policy choices
(OK).  
 

  _  

From: dlaycock [mailto:[EMAIL PROTECTED]
Sent: Sat 9/11/2004 11:26 AM
To: Law  Religion issues for Law Academics
Subject: Re: Establishing orthodoxy


 
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CLS Secures Recognition from Penn State University for Christian Student Club

[Berg, Thomas C.]

A pretty striking First Amendment violation rectified, below.  Suppose the
uniqueness requirement applied to all student organizations?  Not that any
state university would ever do that.  But if it did, what rule for religious
organizations?

Tom Berg


_


Center for Law and Religious Freedom Secures Recognition from Penn State
University for Christian Student Club


UNIVERSITY PARK, PA - The Pennsylvania State University agreed yesterday to
grant DiscipleMakers Christian Fellowship status as a University approved
student organization.  The University's decision came in response to a
lawsuit the Christian Legal Society's Center for Law and Religious Freedom
filed against it on June 22, 2004.  

The CLS Center filed the lawsuit because Penn State refused to recognize
DiscipleMakers.  The University claimed the campus already had too many
Christian clubs.  The complaint, filed in the U.S. District Court for the
Middle District of Pennsylvania, alleges that the University's use of a
uniqueness requirement to deprive Christian student clubs of the status
and benefits of an approved club is unconstitutional.  According to Penn
State's former policy, religious student organizations, unlike secular
school clubs, were required to prove to a University administrator, the
Director of the Center for Ethics and Religious Affairs, that they were
sufficiently unique from existing religious student clubs to warrant
recognition. 

Penn State's Counsel now assures Center attorneys that student clubs with a
religious purpose or function will no longer be subject to the policy which
precludes registration if those purposes or functions duplicate those of an
already existing registered student organization.  The University's counsel
specifically guaranteed that Penn State will approve DiscipleMakers as a
registered student organization.  


Christian Legal Society, a 42 year-old nationwide association of Christian
attorneys, law students, law professors, and judges, established the Center
for Law and Religious Freedom in 1975.  The Center is among the most
respected voices in the religious liberty arena.
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RE: The quid pro quo theory

[Berg, Thomas C.]

Eugene, I agree that very global quid pro quo theories -- like broad
Establishment Clause, broad Free Exercise Clause -- do not spread their
benefits to all religions equally.  (For example, I think that broad
establishment clause, broad free exercise tends to protect or benefit
minority or outsider religions, although I'd qualify that statement in some
important ways.  I'm thinking about this now because I'm writing a piece
about minority religions.)
 
But more specific quid pro quo arguments, it seems to me, can rest on real
connections.  For example: Because public schools cannot include religious
teaching in their curriculum, there should be special concern to protect
religious private schools and families' ability to use them if they
conscientiously wish to have religoius instruction in their children's
education.  That connection is still not perfect -- not all families who
want religious instruction in education will belong to a denomination that
operates religious schools -- but the connection is real because there are
indeed many families who make such a choice between public education and
private religious schools.
 
As for more global quid pro quo notions:  although of course there are many,
many religious views, nevertheless there is a general category called
religion that is singled out for distinctive treatment in the Constitution
and therefore may require distinctive treatment by government actors.  Even
if a general quid pro quo approach doesn't benefit all faiths equally, it
seems to me that it can have the advantage of setting forth an approach that
doesn't treat religious activity just the same as every other activity, but
is principled in the ways it departs from that sameness treatment.  For
example, the Lee v. Weisman passage -- preservation and transmission of
religious beliefs and worship is a responsibility and a choice committed to
the private sphere, which itself is promised freedom to pursue that mission
-- gives a principled (though certainly disputable) reason for treating
religious activities distinctively in various legal situations.  When
someone asks, for example, Why should there be exemptions from law just for
religious conduct?, a possible answer is, It's part of this overall
approach to religion that is sensible and justifiable, for [X] reasons.  I
think that the fact that one can point to other places where religion is
treated differently helps make the overall approach more sensible and
justifiable (though, of course, still open to dispute).
 
Tom Berg
 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Wed 6/9/2004 11:29 PM
To: Law  Religion issues for Law Academics
Subject: The quid pro quo theory



I've always been puzzled about this quid pro quo theory of the Religion
Clauses.  There is no religion as a source of values and beliefs; there
are *religions* (or denominations) as a source of values and beliefs.  Many
of them may share many values, but they will also differ on many values and
goals.  The members of the religions will be different, too.  True, there
are some cultural battles in which secularists are aligned on one side and
religious observers of many faiths on another.  But those are only a small
fraction of all potential battles over values and beliefs, it seems to me;
and even in those, a person's religious denomination is likely to be as
important as his felt religiosity.


Is there much reason to believe that the religions -- or, perhaps more
importantly, religious believers -- benefited by rigorous Free Exercise
Clause protection will be the same as the ones burdened by a rigorously
enforced Establishment Clause?  Historically, Catholics have been quite
burdened by a rigorous Establishment Clause, and have gotten very few
benefits from the Free Exercise Clause, even when it was relatively
rigorous.  (They might have gotten some benefits from religious
accommodations, such as the sacramental wine exemption, but not from the
Free Exercise Clause as such.)  On the other hand, the Amish have gotten
some benefits from a rigorous Free Exercise Clause, but it's not clear that
they have been much burdened by the Establishment Clause, even when it was
relatively rigorous.


I'm not even sure that the benefits of a rigorous Free Exercise Clause and
the burdens imposed by a rigorous Establishment Clause will even out if you
aggregate the effects on all the religions.  But I don't see how such an
aggregation would be proper.  Or am I mistaken?


Eugene 


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RE: Gay Activists Threaten Church Tax-Exempt Status

[Berg, Thomas C.]

I won't quarrel about Rust, which I'm not fond of as a constitutional
decision in the first place -- as Marty originally noted, it gives too
little consideration to the spillover cost involved in segregating
constitutionally protected activity into an entirely different entity or
facility from the subsidized one.
 
I appreciate Alan's point about the restrictions on candidate
electioneering.  But I don't think that his argument carries over to the
restriction on lobbying concerning issues or legislation, which is what
began this thread.  Government speaks on those issues, and it can only speak
in secular terms and rationales, at least if the Establishment Clause is
interpreted vigorously.  There thus remains an issue about a distortion of
the public sphere in favor of the secular.
 
As I said, one might respond to that secularization of the public sphere in
various ways.  One response would be special concern for protecting
religious speech in public; another is special concern for protecting
conscientious religious exercise.  My intuition is that the latter would
tend to favor publicly active faiths, and maybe larger ones, while the
latter would tend to benefit more private faiths and smaller ones.
 
But the thing that one shouldn't do is complain about special protection
for religion without taking into account the special limits placed on
religion in the context of government speech and rationales.
 
Tom Berg
 

  _  

From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Wed 6/9/2004 4:56 PM
To: Law  Religion issues for Law Academics
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status



Sorry to be late in responding to Tom's post, but I was out of town. 

On the first point, Tom and I share very different intuitions. If we are 
basing claims on the relationship between duty or function and message, I 
would think a physician in a family planning clinic has a at least as 
strong if not a stronger claim to the right to inform patients about 
medical choices germane to the specific health issues which brought to 
patient to his or her office as a member of the clergy does to utilize his 
or her pulpit for electioneering purposes. 

On the broader question Tom raises, I certainly agree that some sense of 
balance, or quid pro quo offsets, or neutrality influences the relationship 
between religion specific accommodations or exemptions grounded on free 
exercise concerns and religion specific limitations grounded on 
Establishment clause concerns. Working out how that ledger is to be 
balanced is no easy job -- although Tom is correct that I think it is 
better accomplished by exempting religious practices and institutions from 
government interference and control while maintaining a regime of viewpoint 
neutrality with regard to public and political expression. 

But however one ultimately works that issue out, I think the case for 
providing religious leaders speech exemptions for partisan electioneering 
is extremely weak. Unlike moral, policy, or ethical issues, where the 
Establishment Clause limits religious expression by government while 
permitting the expression of secular perspectives by state agencies, there 
is considerable uniformity with regard to the ban on partisan 
electioneering. Government agencies and institutions are prohibited from 
using their resources and status to support political candidates (at least 
in their official capacities) just as they are prohibited from using their 
resources and status to support religious messages. On this issue, there is 
no Establishment Clause distortion to correct or offset because government 
does not play a partisan expressive role. Secular messages supporting 
particular candidates get no preference over religious  messages supporting 
candidates because government agencies and institutions do not officially 
support candidates for election. 

Alan Brownstein 
UC Davis 



At 01:46 PM 6/6/2004 -0500, you wrote: 
I'm not sure that the doctors in Rust had the same kind of claim that they 
needed to speak in their capacity in the funded program.  The Court said 
that the Title X programs did not purport to be giving general medical 
advice -- while churches may and do propose to speak as a unitary matter on

all aspects of life.  There also is a good argument for some distinction 
between tax exemptions and affirmative government aid (the distinction 
recognized in Walz v. Tax Commission). 
 
But let me raise a broader issue, which I think Alan and I have discussed
on 
list before.  Why must we hold that religious speech may *never -- no
matter 
what the circumstances --* receive any protection that comparable secular 
speech does not receive?  Why can't truly privately-initiated religious 
speech sometimes receive more protection than secular counterparts, if
there 
is otherwise a strong case for such protection?  (A strong case might 
include, e.g., a distinctive feature of religion like a doctrinally
mandated 
polity; a major 

RE: Gay Activists Threaten Church Tax-Exempt Status

[Berg, Thomas C.]

I'm not sure that the doctors in Rust had the same kind of claim that they
needed to speak in their capacity in the funded program.  The Court said
that the Title X programs did not purport to be giving general medical
advice -- while churches may and do propose to speak as a unitary matter on
all aspects of life.  There also is a good argument for some distinction
between tax exemptions and affirmative government aid (the distinction
recognized in Walz v. Tax Commission).

But let me raise a broader issue, which I think Alan and I have discussed on
list before.  Why must we hold that religious speech may *never -- no matter
what the circumstances --* receive any protection that comparable secular
speech does not receive?  Why can't truly privately-initiated religious
speech sometimes receive more protection than secular counterparts, if there
is otherwise a strong case for such protection?  (A strong case might
include, e.g., a distinctive feature of religion like a doctrinally mandated
polity; a major burden on the religious speech; and no compelling reason to
restrict the speech.)  The answer, reflected in Alan's previous posts, is
that greater protection would distort the marketplace of ideas in favor of
religious speech.  But isn't there already some distortion of the
marketplace of ideas *against* religious speech because of the fact that the
many entities of government -- which are of course significant participants
in political and ideological debate -- cannot espouse any religious ideas,
or any explicitly religious arguments for their proposed public policies?
Governments can explicitly espouse secular ideas and rationales, but not
religious ones.  (That I took to be Alan's position in the discussion that
arose out of the Pledge case, and I assume it is the position of many if not
most people who think that religious speech should get no more protection
than secular speech.)

Although governments also cannot espouse explicitly anti-religious views, it
seems to me that this is less of a burden on the anti-religious, because
secular views logically overlap more with anti-religious views than with
religious views.  The person who rejects religious views as a basis for
addressing issues usually affirmatively relies on secular views instead, and
therefore can be quite happy with secular arguments by government -- whereas
the serious religious believer has to think that to speak about issues in
wholly secular terms misses an important element.

There are good reasons, in my view, to keep the government out of explicitly
espousing religious views and religious perspectives.  But we should also
recognize that this restriction itself affects the marketplace of ideas,
with an increasing effect as the restriction becomes more and more
unbending.  Perhaps this fact requires or allows some special concern that
private entities *not* be restricted in espousing religious views in the
ideological marketplace.  Two central sentences in Lee v. Weisman, taken
together, might summarize this outlook:  In religious debate or expression
the government is not a prime participant, for the Framers deemed religious
establishment antithetical to the freedom of all.  The design of the
Constitution is that preservation and transmission of religious beliefs and
worship is a responsibility and a choice committed to the private sphere,
which itself is promised freedom to pursue that mission.  Along with the
distinctive restriction on government transmission of religious beliefs
comes a distinctive promise to private religious entities that they can
transmit their beliefs -- logically, quite independent of whether secular
beliefs and perspectives can be transmitted.

I don't have a theory worked out about how far this distinctive protection
-- this compensation for the disability on government religious speech --
can or should go.  Perhaps it shouldn't apply to political speech such as
lobbying or electioneering; perhaps it should be limited to religiously
grounded conduct as opposed to speech, as I think Alan might respond.  All
I'm saying is that the governing assumption that religious speech by private
entities must always be treated no better than secular speech needs to be
explicitly defended -- as against the claim that the marketplace of ideas is
already skewed by the bar on government explicitly espousing religious
ideas.

Tom Berg

 


  _  

From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Fri 6/4/2004 12:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status



Thanks, Tom. Your post and Doug's are helpful (at least to me). I think you 
are both right that a religious leader technically on the payroll of a 
(c)(4) organization who delivered regular partisan political sermons from 
the church pulpit or through pastoral letters would raise questions from 
the IRS. 

But it seems to me that this alters the discussion a bit. The focus is not 
so much on an 

RE: Gay Activists Threaten Church Tax-Exempt Status

[Berg, Thomas C.]

(An earlier version of this got lost in cyberspace, apparently.)

From the religious standpoint, I think the concern is that the leader of the
faith community -- say, the diocesan bishop -- should also be the leader and
teacher in public pronouncements on moral and social issues, and should be
able to do so in his capacity as spiritual leader -- as Doug puts it, from
the pulpit or in a pastoral letter.  The concern would be that the IRS would
view such an overlap in organizational leaders and spokespersons -- and in
the forum for the two pronouncements -- as evidence of a failure to
segregate the two organizations.  If the IRS withdraws the tax exemption on
that basis, it would mean that the church lost the exemption -- for its
charitable, non-political activities as well -- as the price of following
its doctrinally mandated organizational structure.  By losing the exemption
for *all* of its activities, the church is suffering a penalty.
 
As I said, in theory a secular organization could have a similar doctrinal
belief that the leader and public teacher/spokesperson on its exempt
activities must also be the leader and public teacher/spokesperson on its
non-exempt (i.e. legislation-related) activities.  But like Doug, I can't
think of a secular example where the organization believes this as a matter
of conscientious doctrine.  It may be more convenient, less costly, more
effective, etc. for the same people to do both -- that would indeed be true
for all organizations, not distinctively so for churches.  But I'm talking
about a different concern, the conscientious tenet about who should speak.
Is there a secular organization that is comparable to certain religious
groups in that it has a conscientious belief, as part of its doctrines, that
certain leaders must be the public teachers and spokespersons on all issues?
 
Again, perhaps the most that this shows is that all such groups have some
distinctive normative claim to accommodation, whether they are religious or
secular.  If there is such a claim, then since it seems that the vast
majority of such groups would be religious, wouldn't the better course be to
accommodate them under RFRA, and then fashion a similar accommodation for
the occasional secular group that might come along?  (Analogous to Harlan's
expanding the draft exemption in Welsh.)
 
Tom Berg


***
Thomas C. Berg
University of St. Thomas School of Law
Mail # MSL 400
1000 La Salle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
[EMAIL PROTECTED] 




-Original Message-
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Thursday, June 03, 2004 1:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status


I'm not sure I fully understand this argument, but I don't know all that 
much about church doctrine or tax law. Can you help me, Tom. Is the 
argument that the religious leaders of certain faith communities are 
prohibited by church doctrine from serving in leadership positions or 
taking on speaking roles in 501(c)(4) organizations? Or is it a tax law 
problem? Do IRS regulations make it difficult for clergy to participate in 
501(c)(4) organizations, perhaps because they receive compensation from a 
501(c)(3)? Can someone work part time at both a 501(c)(3) and part time at 
a 501(c)(4)? Can a church categorize itself as a (c)(4) organization and 
lose its tax exempt status? If so, that takes us back to problems relating 
to the impracticality of segregating one's activities and the cost in lost 
subsidies and exemptions of maintaining organizational and operational 
unity -- but that problem applies to both secular and religious individuals 
and institutions.

I understand the argument that clergy have to be able to be free to speak 
out on political issues. What I'm less clear about is why they have to be 
able to do so from a tax exempt status.

I suppose the second issue suggested by Tom's post is whether church rules 
about polity effectively respond to the free speech concern. If only 
associations expressing a particular viewpoint have certain kinds of rules 
about who can speak for the organization, and that distinction is accepted 
as a justification for regulating the speech of those associations less 
rigorously than the speech of associations with different viewpoints, does 
that resolve the debate distorting consequence of accepting this 
distinction? Avoiding debate distorting government action is, after all, 
why we are concerned about viewpoint discrimination in the first place.

Alan Brownstein
UC Davis


At 11:37 AM 6/3/2004 -0500, you wrote:
I'm not sure about the following argument, but what do you think of it?
The
ban on lobbying can be circumvented by setting up a separate 501(c)(4)
organization, which the Court in Regan said was relevant (if not crucial)
to
its constitutionality.  Suppose that it doesn't cost much in terms

RE: Gay Activists Threaten Church Tax-Exempt Status

[Berg, Thomas C.]

I'm not sure about the following argument, but what do you think of it?  The
ban on lobbying can be circumvented by setting up a separate 501(c)(4)
organization, which the Court in Regan said was relevant (if not crucial) to
its constitutionality.  Suppose that it doesn't cost much in terms of
administrative duplication to set up the (c)(4), so that in practical terms
the message can get out to its targeted audience through the (c)(4).  (The
costs may vary, but Regan seems to assume they're not large.)  But clearly
certain churches have doctrinally based views about polity, under which
teaching on the implications of the faith, including social implications,
must come from those in certain positions of authority in the church:  they
are the ones who have been given the teaching authority by God.  Does that
make them distinctive from other organizations -- in terms of their polity
doctrine, not in terms of their message or the practical costs of separate
affiliates -- and justify different treatment?  Even if not a free exercise
exemption, because of Smith, then under a RFRA?  And might this
distinctiveness as to polity doctrines answer the free-speech argument that
such distinctive treatment is unconstitutional because it discriminates
between the viewpoints being expressed?
 
A 1988 statement by the Presbyterian Church (USA) puts it as follows:  No
church can be restricted to speaking on political issues solely through
functionaries employed by a political affiliate without violating its faith
and calling.  Perhaps that states it too broadly; perhaps only certain
churches truly have such doctrines about polity.  The McConnell, Garvey,
Berg religion casebook (p. 859) asks the question this way (somewhat
rhetorically):  As long as the [Catholic] Church can communicate its
position on electoral issues, does it matter whether that communication
comes through an official of a Catholic (c)(4) affiliate or PAC rather than,
say, a bishop of a diocese?  It matters greatly.
 
Perhaps the answer to this argument is that such an exemption should be
provided, if at all, to any group, religious or secular, that can show a
doctrine that teaching must come from certain designated authorities.  But
that seems to be a feature almost entirely of religious groups -- or an I
wrong about that?
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 
 

  _  

From: Marty Lederman [mailto:[EMAIL PROTECTED]
Sent: Thu 6/3/2004 9:08 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gay Activists Threaten Church Tax-Exempt Status


This appears to be the hot-button issue of the day, what with today's New
York Times front-page story about Bush's attempt to use churches for
electioneering
(http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp
http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp ), and
the recent contretemps concerning Bishop Sheridan's politicking (see
http://www.au.org/site/News2?page=NewsArticle
http://www.au.org/site/News2?page=NewsArticleid=6675abbr=prJServSessionI
dr012=rx1ae42ab1.app7bsecurity=1002news_iv_ctrl=1241
id=6675abbr=prJServSessionIdr012=rx1ae42ab1.app7bsecurity=1002news_iv_c
trl=1241).
 
In addition to Marc Stern's point, I'd add that it's long struck me as odd
that this is viewed as a serious constitutional issue.  All nonprofits that
wish to receive the tax benefit, religious and secular, churches and other
entities, are limited in the amount of electioneering they can do.  If
there's a problem with this condition, it's a policy, not a constitutional,
concern (see, e.g., Regan), and is not limited to churches.  Even pre-Smith,
any Free Exercise claim would have been on extremely weak ground (on
substantial burden grounds, primarily); and post-Smith, it's difficult to
see what the claim would be.  Moreover, if the IRS were to allow churches,
but not secular nonprofits, to use tax benefits to engage in electioneering,
that would be a fairly straightforward Free Speech violation (giving a
religious preference w/r/t to core political expression), and would raise
serious Establishment Clause questions, as well.  As Chip Lupu has written
w/r/t this tax-exemption, the area of political activity is one in which
the claim to the constitutional uniqueness of religion is unusually weak,
and the claim to equal participation by all is unusually strong.
 
Having said that, I should note that Rick Garnett and Steffen Johnson
advanced serious arguments against the condition in the July 2001 Boston
College Law Review.  Although I haven't read those pieces in a while, I
recall thinking that they were quite formidable, if ultimately unpersuasive
to this reader.
 
- Original Message - 

From: marc stern mailto:[EMAIL PROTECTED]  
To: 'Law  mailto:[EMAIL PROTECTED]  Religion issues for Law
Academics' 
Sent: Thursday, June 03, 2004 9:44 AM
Subject: RE: Gay Activists Threaten Church Tax-Exempt Status


There really is nothing to the threat. Churches are free to take 

RE: RE: Medical workers who don't want to participate in abortion s

[Berg, Thomas C.]

people's conscientious desires (religious and secular) for days off, I
can't
see any neutral, secular reason for limiting it to Sundays.  It's a grossly
underinclusive accommodation-of-conscience statute.  The abortion
accommodation, on the other hand, could rest on a judgment that abortion is
a particularly deeply felt issue (a judgment that the newspapers confirm
every day), or is different because it touches on matters concerning what
is
a life worthy of respect, etc.  All of these seem much more defensible
reasons for accommodating that particular problem of conscience than are
any
of the reasons for giving only Sundays off.  (Again, if the purpose of the
Thornton-like law is to accommodate conscience, I can't see any plausible
reason for limiting it to Sundays only.  The only possible reason to favor
Sundays is to encourage a single day of rest -- a sort of soft version of
the argument for blue laws that succeeded in McGowan.   But in that case
its
purpose is not accommodating conscience.)

Tom Berg





***
Thomas C. Berg
University of St. Thomas School of Law
Mail # MSL 400
1000 La Salle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
[EMAIL PROTECTED]




-Original Message-
From: Alan Brownstein [mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ]
Sent: Sunday, May 16, 2004 4:22 PM
To: Berg, Thomas C.; Law  Religion issues for Law Academics
Subject: RE: RE: Medical workers who don't want to participate in
abortion s



Tom and Eugene's thoughtful comments are pretty persuasive, but I'm not
entirely convinced that we can ignore what Tom calls the focus on
relative benefits whenever a law facially applies to both religious and
nonreligious groups. I appreciate the importance of facial neutrality or
generality, but why should that completely outweigh the burden on third
parties, for example,or whether the law has the effect of
disproportionately benefitting certain religions and not others. Or to
put it another way, should we entirely ignore the purpose of the law, and
whether the burdens created by the law disproportionately impact
nonreligious individuals or members of minority faiths.

A lot depends on what is considered a general and neutral law. Don't both
the beneficiaries of an accommodation and those who bear the costs of the
accommodation need to be taken into account? Does a law tracking Thornton
that requires employers to accommodate everyone who wants Sunday off
violate the Establishment Clause? Do we resolve concerns about religious
institutions discriminating on the basis of religion in hiring staff to
operate publicly funded programs by allowing all ideologically oriented
organizations receiving public funds to discriminate on the basis of
religion in hiring?

I don't claim to have the answers to these questions. I'm just not sure
that generality of beneficiaries is a sufficient principle to adequately
further Establishment Clause values.

Alan Brownstein
UC Davis

  I agree with Eugene that you probably need an additional step in the
  argument to fit the abortion conscience exemption into the Texas Monthly
  test -- namely that when a law treats religious and nonreligious
people and
  institutions equally, courts shouldn't guess what fraction of the
benefits
  flow to the religious.
 
  It seems to me, though, that this additional step is not just Eugene's
own
  argument, but is one that the Court has explicitly adopted in Mueller v.
  Allen and in Zelman v. Simmons-Harris.  In both those decisions, the
Court
  explicitly found it irrelevant that a very large percentage of benefits
of a
  neutral program based on individual choices flowed to religious
education,
  because such statistics cannot produce a judicially administrable test
and
  because the program did not skew the individuals' choices toward
religion.
  And both of those decisions involved financial subsidies in the Court's
view
  (vouchers in Zelman and tax deductions in Mueller -- the latter might
not be
  best characterized as financial subsidies, but certainly the former
are).
  If the Court doesn't look at the percentage of benefits flowing to
religion
  under a religion-neutral financial subsidy program, then as I argued
before,
  a fortiori it shouldn't (and wouldn't) do so in the case of a
  religion-neutral exemption/accommodation for individual conscientious
  conduct, which lies even further away from the core theoretical and
  historical concerns of the Establishment Clause (and that is true even
if
  it's an exemption from sanctions by private employers.)
 
  For this reason, I don't think that in order to immunize accommodations
of
  conscience that are neutral between religious and secular conduct from
  Establishment Clause challenge, one needs to buy into Eugene's principle
  that equal treatment of the religious and secular *always* satisfies the
  Establishment Clause.  In other contexts, such as direct aid, the
delegation

RE: RE: Medical workers who don't want to participate in abortion s

[Berg, Thomas C.]

Alan raises a fair point with his hypothetical law giving everyone the right
to take Sunday off if s/he wants.   Facial neutrality might well not be
enough in that case.  But the major problem there, it seems to me, is the
blatant distinction in fact between different religious faiths with Sunday
as opposed to  non-Sunday sabbaths.  I think that it makes more sense to
address that concern directly, rather than have it trigger a separate
inquiry (like the one in Thornton) about the relative burdens that it
imposes on others versus burdens it removes from the accommodated workers.
The latter inquiry is the one that, to me, seems unwarranted and not quite
on point. 

One could say, of course, that the accommodation of abortion objections
likewise accommodates certain faiths -- those opposed to abortion -- and not
others -- those who object to participating in other medical procedures.
That raises the difficult question, which we've discussed on list before, of
when an statute-specific accommodation becomes denominational
discrimination.  I might concede Alan's point that you need to look behind
the face of the accommodation somewhat to see if there's just pure religious
favoritism going on.  Gillette v. U.S., which upheld excluding selective COs
from the draft exemption statute, suggested that there needs to be a
neutral, secular reason for the limited scope of the exemption.  But I
don't think that such review of the scope of an exemption -- review of why
it wasn't broader or more general in its terms -- should be overly strict.
There are often good practical reasons for addressing only one issue of
conscience at a time.  It may be the only issue of conscience raised by a
particular statute.  And often it's easier for the legislature to set forth
a clear rule for one context than for many contexts:  trying to address a
whole range of contexts at once tends to force the accommodation into the
form of a generalized balancing test that, even if not impermissible, is not
always ideal.  I would protect against denominational discrimination in
statutory exemptions not by doing away with such exemptions, but by backing
them up with free exercise exemptions, which by their nature will be
oriented toward minority faiths.

If the purpose of Alan's hypothetical Thornton-like law is to accommodate
people's conscientious desires (religious and secular) for days off, I can't
see any neutral, secular reason for limiting it to Sundays.  It's a grossly
underinclusive accommodation-of-conscience statute.  The abortion
accommodation, on the other hand, could rest on a judgment that abortion is
a particularly deeply felt issue (a judgment that the newspapers confirm
every day), or is different because it touches on matters concerning what is
a life worthy of respect, etc.  All of these seem much more defensible
reasons for accommodating that particular problem of conscience than are any
of the reasons for giving only Sundays off.  (Again, if the purpose of the
Thornton-like law is to accommodate conscience, I can't see any plausible
reason for limiting it to Sundays only.  The only possible reason to favor
Sundays is to encourage a single day of rest -- a sort of soft version of
the argument for blue laws that succeeded in McGowan.   But in that case its
purpose is not accommodating conscience.) 

Tom Berg

 

 

*** 
Thomas C. Berg 
University of St. Thomas School of Law 
Mail # MSL 400 
1000 La Salle Avenue 
Minneapolis, MN   55403-2015 
Phone: (651) 962-4918 
Fax: (651) 962-4996 
[EMAIL PROTECTED] 

 


-Original Message- 
From: Alan Brownstein [mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] ] 
Sent: Sunday, May 16, 2004 4:22 PM 
To: Berg, Thomas C.; Law  Religion issues for Law Academics 
Subject: RE: RE: Medical workers who don't want to participate in 
abortion s 



Tom and Eugene's thoughtful comments are pretty persuasive, but I'm not 
entirely convinced that we can ignore what Tom calls the focus on 
relative benefits whenever a law facially applies to both religious and 
nonreligious groups. I appreciate the importance of facial neutrality or 
generality, but why should that completely outweigh the burden on third 
parties, for example,or whether the law has the effect of 
disproportionately benefitting certain religions and not others. Or to 
put it another way, should we entirely ignore the purpose of the law, and 
whether the burdens created by the law disproportionately impact 
nonreligious individuals or members of minority faiths. 

A lot depends on what is considered a general and neutral law. Don't both 
the beneficiaries of an accommodation and those who bear the costs of the 
accommodation need to be taken into account? Does a law tracking Thornton 
that requires employers to accommodate everyone who wants Sunday off 
violate the Establishment Clause? Do we resolve concerns about religious 
institutions discriminating on the basis of religion in hiring

RE: RE: Medical workers who don't want to participate in abortion s

[Berg, Thomas C.]

As far as caselaw doctrine goes, isn't Eugene's question answered by the
Brennan plurality opinion in Texas Monthly (only a plurality, but also the
opinion in the case most restrictive of accommodations)?  The Court struck
down the exemption from sales taxes for religious publications.  The
plurality first distinguished the property tax exemptions upheld in Walz,
among other programs, on the ground that the benefits derived by religious
organizations flowed to a large number of nonreligious groups as well.
Indeed, were those benefits confined to religious organizations, they could
not have appeared other than as state sponsorship of religion.  489 U.S. at
11 (citing Thornton v. Caldor, among others).
 
The plurality then proceeds to articulate a test for the constitutionality
of such exemptions:  Insofar as th[e] subsidy [of a tax exemption] is
conferred upon a wide array of nonsectarian groups as well as religious
organizations in pursuit of some legitimate secular end, the fact that
religious groups benefit incidentally does not deprive the subsidy of the
secular purpose and primary effect mandated by the Establishment Clause.
However, when government directs a subsidy exclusively to religious
organizations that is not required by the Free Exercise Clause and that
either burdens nonbeneficiaries markedly or cannot reasonably be seen as
removing a significant state-imposed deterrent to the free exercise of
religion, it [violates the Establishment Clause].  Id. at 14-15.
 
The problem with the exemption in Thornton, as Eugene notes, was that it
burden[ed] nonbeneficiaries markedly through its absolute weighting of the
balance in favor of the religious employee over the employer and over the
secular employees who would have to replace him on his Sabbath.  The passage
from Texas Monthly seems to make clear that this question of burden[ing]
nonbeneficiaries markedly kicks in only when the exemption is
religion-specific.  When, as is almost certainly true in the abortion
conscience case, the exemption flow[s] to a large number of nonreligious
[persons] as well, the focus on relative burdens is simply not triggered.
The exemption, as Sandy observed, is viewed more as the kind of secular
adjustment of private economic relations that the legislature does all the
time, and therefore subject to minimal or no review.
 
I think this analysis applies a fortiori to the abortion case because (1)
the Brennan plurality is the Texas Monthly opinion most restrictive of
legislative accommodations and (2) the opinion treats tax exemptions as a
financial subsidy, which is a category of government action that strongly
implicates the Establishment Clause, and a category that is much harder to
apply to an exemption from performing abortions.
 
On the latter point, all the Establishment Clause decisions that strike down
applications of a facially neutral statute that incidentally helps religion
involve either (a) direct financial aid to religion (Lemon), (b)
affirmative, intentional promotion of religion in the public schools
(Wallace v. Jaffree), or (c) delegation of government power to a religious
group (Larkin, Kiryas Joel).  Simple exemption of religious conduct from
restrictive regulation is quite different from these cases, largely because
of the implications of the Free Exercise Clause.  I would say that it is so
different that religion-specific exemptions should be approved and in many
cases should be mandated.  That is not the Court's position (Smith), but the
Court clearly does recognize that exemption is different from affirmative
promotion (see Presiding Bishop v. Amos).  The different status of an
exemption surely is enough to mean that exempting religion along with
secular forms of conscience does not trigger the Establishment Clause --
that is, it does not trigger the inquiry of Thornton and Texas Monthly about
the relative degree of burden that the exemption imposes on others. 
 
Tom Berg
University of St. Thomas School of Law, Minnesota
 

  _  

From: Levinson [mailto:[EMAIL PROTECTED]
Sent: Sat 5/15/2004 8:10 PM
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]
Subject: Re: RE: Medical workers who don't want to participate in abortions



I'm not convinced that the statutes that Eugene quotes would bar
discrimination in hiring.  Consider the following possibility:  A hospital
indicates that it needs to hire, say, 10 new nurses on the obstetrics wing,
and an anti-abortion organization promptly floods the hospital with
(qualified) applicants, all of whom indicte that they have conscientious
objections to abortion.  I think it is simply crazy to force the hospital to
be nondiscriminatory in those hiring decisions.  But maybe the law *is*
crazy

sandy 

-Original Message- 
From: Volokh, Eugene [EMAIL PROTECTED] 
To: Law  Religion issues for Law Academics [EMAIL PROTECTED],
[EMAIL PROTECTED] 
Date: Sat, 15 May 2004 16:33:39 -0700 
Subject: RE: Medical workers who don't want to 

Ministerial Exemption Case: Music Minister and Reconciling Cong regation

[Berg, Thomas C.]

An interesting ministerial case (music minister) from Minnesota.  Among
other things it dramatizes the proposition that the ministerial exemption
has nothing to do with the tenets of the defendant church.  The defendant
Methodist congregation that was held exempt from sexual-orientation
discrimination laws was a reconciling congregation, one that proclaims
itself welcoming of lesbians, gays, and bisexuals as parishioners and staff.

 
Tom Berg 
University of St. Thomas School of Law (Minnesota)
 
http://www.courts.state.mn.us/opinions/coa/current/opa030675-0413.htm
http://www.courts.state.mn.us/opinions/coa/current/opa030675-0413.htm  

 

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