Recommentations of course materials for teaching "Muslim ban" case?

[Case, Mary Anne]

Students in my Con Law of Religion course want to devote a class to the 
Religion Clauses issues in the “Muslim ban” cases.  I would welcome suggestions 
as to what materials to assign, especially to a group that may not have other 
Con Law experience.
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RE: Re-upping: Sterling: A helpful test case on RFRA burdens

[Case, Mary Anne]

As Marty Lederman among others has demonstrated, the Greens of Hobby Lobby were 
never “compelled … to do something that they thought religiously forbidden;” 
they always had the choice to take a financial hit by no longer offering 
insurance, just as Abdulhaseeb has the choice to miss some meals.  Is there a 
sorites paradox here?  When short of starvation does missing meals become 
substantial enough to count?  When is a financial penalty substantial enough, 
and should it matter if the person suffering it is dependent on unemployment 
insurance or a multi-millionaire?

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, February 21, 2017 6:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Well, given that Gorsuch voted in favor of both Abdulhaseeb and 
the likewise presumably very poor Native American prisoner, Yellowbear v. 
Lampert, that is especially strong reason not to succumb to the temptation.

Indeed, whatever might be required merely for Article III standing, Gorsuch’s 
point in Hobby Lobby was that the government compelled plaintiffs to do 
something that they thought religiously forbidden; likewise, in Yellowbear, the 
government forbade something that plaintiff thought religiously required, as it 
did in Abdulhaseeb as to the required halal meat claim.  The Christians, Native 
American religious practitioner, and the Muslim were treated quite alike in 
this respect.

But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable 
foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all 
of the tray's contents inedible,” Gorsuch thought that the burden wasn’t 
substantial, because while “It's surely a burden to forgo an occasional meal,” 
the burden is less substantial.  And as to Ali, Gorsuch concluded that, though 
a “burden can count as substantial if it prohibits the prisoner taking actions 
motivated by sincerely held religious beliefs — or if it requires or places 
considerable pressure on the prisoner to do something his sincerely held 
religious beliefs forbid,” “Mr. Ali’s complaint fails to allege so much”:

Mr. Ali's complaint fails to allege so much. In places, the complaint suggests 
that the prison forbids Mr. Ali from using his religious name on mail — and 
that this is the gravamen of his complaint. Indeed, the title of the relevant 
claim in his complaint reads: "The SCF mail room's refusal to permit the 
plaintiff to send and receive mail under Jahad Ali violates his right to freely 
exercise his religious beliefs." R. at 35. Yet, Mr. Ali himself elsewhere 
concedes that the prison doesn't actually forbid the use of his religious name. 
Instead, he simply has to include his committed name alongside his religious 
name. So even if we were to agree with Mr. Ali that it might be a substantial 
burden on his religious exercise to forbid him to use his religious name on his 
mail, his own pleading makes plain that no such burden exists.

We suppose it's possible the prison's modest requirement that both names appear 
could itself be enough to qualify as a substantial burden under RLUIPA — if, 
say, a prisoner's sincerely held religious beliefs forbade any mention of a 
former name. But even affording the liberality due a pro se litigant, we don't 
see this allegation clearly made in claim 2 of Mr. Ali's complaint.

Seems like a reasonable analysis to me.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Tuesday, February 21, 2017 4:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But i

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

[Case, Mary Anne]

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But it's 
not a substantial burden, and RLUIPA proscribes only government actions that 
substantially burden religious exercise.”  Quite apart from its relevance, if 
any to Sterling,  I’d welcome thoughts on this, especially coming from Gorsuch, 
who said, in his Hobby Lobby concurrence that it was enough to give the Greens 
individually standing that “the company shares of which they are the beneficial 
owners would decline in value if the mandate's penalties for non-compliance 
were enforced.”

Let me also throw into the mix another relevant Gorsuch opinion, Ali v. 
Wingert, 569 Fed. Appx. 562 (2014) which also is a counter-example for Chip’s 
first proposition, in that involves a prisoner with a choice, also, as it 
happens a Muslim prisoner of whose claim of burden (this time religious burden, 
not secular) Gorsuch is dismissive. When pro se plaintiff Ali objects to being 
forced to include the name he was convicted under on all mail, despite a 
religiously motivated name change, Gorsuch says he has not articulated a 
substantial burden on a sincere religious exercise, putting in scare quotes 
Ali’s claim “that his spiritual experience is ‘heightened’ by using his 
religious name and that he finds his old name ‘offensive.’…. It might be 
‘offensive’ to him, but he does not tell us how or why it burdens his religious 
exercise.”

I don’t want to succumb to the temptation of thinking Gorsuch sees burdens on 
rich and powerful Christians more readily than he does those facing poor Muslim 
prisoners, but I could use your help resisting it.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, February 21, 2017 5:26 PM
To: Law & Religion issues for Law Academics; James Oleske
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Thanks to Jim Oleske for the kind words.  Here is a thought about the general 
landscape of inquiry into burdens on religion, and a related thought about the 
way Texas has argued in these various matters:
1) The proposition that RFRA's "substantial burden" inquiry includes both a 
"secular cost" and a "religious cost" component, which is screamingly obvious 
from Yoder (where the religious cost of compliance with law is the 
centerpiece), does no work in cases involving the religious freedom of 
prisoners.  Why?  Because in the civilian world, there is typically a choice to 
be made -- stick to your religious convictions and pay the secular price 
(fines; imprisonment; lost government benefit), or violate your religious 
convictions (that is, incur a religious cost) to avoid the secular price.  But 
in prison, the inmates almost always need permission, not forgiveness, to 
follow the religious convictions in question.  The prison authorities don't 
threaten inmates with punishment if they, for example, grow their hair long.  
They just say no, and coercively cut the hair (or deny whatever privilege the 
inmate is seeking). So the ONLY question in these cases is the "religious cost" 
of being unable to practice what the prisoner claims is his faith.  This leads 
to some constitutionally unacceptable consequences, like having the state 
consult clergy to determine whether denial of the privilege is a substantial 
burden on the prisoner's religious exercise, and it always winds up with the 
state (through some agent, executive or judicial) having to make a religious 
judgment.


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Gorsuch's characterization of US v. Lee

[Case, Mary Anne]

Gorsuch’s Hobby Lobby concurrence characterizes the Amish claim in US v Lee as 
follows:
“The employer's faith taught that it is sinful to accept governmental 
assistance. By being forced to pay social security taxes on behalf of his 
employees, the employer argued, he was being forced to create for his employees 
the possibility of accepting governmental assistance later. This much 
involvement or complicity, the employer argued, was itself sinful under the 
teachings of his religion.”

I see no evidence of this sort complicity claim (i.e. employer arguing his was 
obligation to keep temptation away from underlings) in the Lee briefs or 
opinions. Rather, Lee argues that “to pay money into a system which provides 
governmental benefits is to admit that the government has a responsibility for 
aged Amish members and to admit this is to deny their own responsibility.”  In 
other words, it’s all about Lee’s own direct responsibilities, not the 
“possibility”  he was “creat[ing] for his employees” “of accepting governmental 
assistance” the way ACA employees can “accept” contraception .

Am I misunderstanding either Lee’s claim or Gorsuch’s take on it?
   I

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RE: Scalia's views of RFRA?

[Case, Mary Anne]

Sorry, Ira, was moved to ask about the deceased’s views in aid of a solicited 
piece on the jurisprudential views and rhetorical moves of the deceased (not 
RFRA specific views).

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 22, 2016 4:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia's views of RFRA?

There was no compelling interest test at the time of Reynolds, so being a law 
unto yourself would be the beginning and end of the game. RFRA adds a step to 
the game. And with all respect to the departed, I do not know why we should 
care what Justice Scalia thought about any subject on which he did not offer a 
view. Perhaps it was enough for him that a statute required him to do what he 
thought the Constitution did not.
There are very, very few cases of legislatures cutting back on judicially 
recognized RFRA rights. You might look at my post- Hobby Lobby piece in Harv J 
of Law & Gender, where I discuss this in detail,

On Tue, Nov 22, 2016 at 5:02 PM Case, Mary Anne 
<mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote:
From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Ira Lupu
Sent: Tuesday, November 22, 2016 3:37 PM

To: Law & Religion issues for Law Academics
Subject: Re: Scalia's views of RFRA?

The Scalia opinion in Smith of course did not anticipate a law like RFRA; 
instead, he was referencing practice-specific accommodations (like a peyote 
prohibition that exempted Native American Church members who used peyote in 
sacraments.)
--
Agreed. That’s what led me to wonder to what extend RFRA might have upset him.
--

Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby 
Lobby, indeed makes "each conscience a law unto itself” with respect to what is 
burdensome to religious exercise. Nevertheless, judges still have to engage in 
"balancing" in light of RFRA's exception (re: whether application of the burden 
to the person furthers compelling governmental interests, and whether that is 
the least restrictive means to do so).  But the "law unto itself" quality 
associated with RFRA's rule means that the government will very frequently have 
to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith 
law ever had. So the balance seems highly tilted toward the government (though 
I strongly suspect it will not remain that way).
--
This may be a quibble or parsing too fine, but I take “law unto itself” here to 
mean what Reynolds does in using a similar phrase, that the secular law will 
let a person impelled by religion do as s/he pleases, so that not just the 
question of burden, but the whole ball of wax would be decided by the 
individual conscience. As to the rest of what you say, I may be confused, but 
when you say the balance is tilted toward government, I would have said away 
i.e. that narrow tailoring taken literally may be very hard for gov. to 
satisfy, which I agree is not an equilibrium situation.  Whether it will be 
solved by courts watering down the standard without changing its verbiage or by 
legislatures selectively cutting back as Chris Lund has documented I’m less 
sure.


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

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

I never read Smith that way — it was a straight up carte blanche to the 

RE: Scalia's views of RFRA?

[Case, Mary Anne]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 22, 2016 3:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia's views of RFRA?

The Scalia opinion in Smith of course did not anticipate a law like RFRA; 
instead, he was referencing practice-specific accommodations (like a peyote 
prohibition that exempted Native American Church members who used peyote in 
sacraments.)
--
Agreed. That’s what led me to wonder to what extend RFRA might have upset him.
--

Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby 
Lobby, indeed makes "each conscience a law unto itself” with respect to what is 
burdensome to religious exercise. Nevertheless, judges still have to engage in 
"balancing" in light of RFRA's exception (re: whether application of the burden 
to the person furthers compelling governmental interests, and whether that is 
the least restrictive means to do so).  But the "law unto itself" quality 
associated with RFRA's rule means that the government will very frequently have 
to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith 
law ever had. So the balance seems highly tilted toward the government (though 
I strongly suspect it will not remain that way).
--
This may be a quibble or parsing too fine, but I take “law unto itself” here to 
mean what Reynolds does in using a similar phrase, that the secular law will 
let a person impelled by religion do as s/he pleases, so that not just the 
question of burden, but the whole ball of wax would be decided by the 
individual conscience. As to the rest of what you say, I may be confused, but 
when you say the balance is tilted toward government, I would have said away 
i.e. that narrow tailoring taken literally may be very hard for gov. to 
satisfy, which I agree is not an equilibrium situation.  Whether it will be 
solved by courts watering down the standard without changing its verbiage or by 
legislatures selectively cutting back as Chris Lund has documented I’m less 
sure.


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

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

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

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

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

Albert Einstein

On Nov 22, 2016, at 4:07 PM, Case, Mary Anne 
<mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote:

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



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--
Ira C. Lupu
F. Elwood &

RE: Scalia's views of RFRA?

[Case, Mary Anne]

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

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

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

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

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

Albert Einstein


On Nov 22, 2016, at 4:07 PM, Case, Mary Anne 
<mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote:

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


___
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Scalia's views of RFRA?

[Case, Mary Anne]

Other than his stray remarks at the Hobby Lobby oral argument (for example 
noting that RFRA went beyond the pre-Smith case law in mandating not just a 
compelling state interest but narrow tailoring) did Scalia ever in any venue 
set forth his views on RFRA (for example expressing disappointment that 
Congress had rejected his bid for a clear rule and sent back to judges the task 
of "weigh[ing] the social importance of all laws against the centrality of all 
religious beliefs"(Smith) or expressing satisfaction that exemptions now had 
the democratic warrant he said in Smith they needed?
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Risk of job loss to employees who avail themselves of contraception?

[Case, Mary Anne]

As the quixotic quest for less restrictive alternatives to the contraception 
mandate accommodation proposed by the Obama Administration continues, am I 
right to think that, from the perspective of the employee contraceptive users, 
a concern has to be confidentiality because, to the extent their employer is a 
religious non-profit opposed to contraception, they risk being fired should it 
become known they are, through their use of contraceptives, not living up to 
the tenets of their employer’s religion?  I have seen no explicit discussion of 
the effect of a less seamless coverage (for example through a separate policy 
or card such as favored by Justice Alito in oral argument) on confidentiality.  
Is there one? And if there is not one, is that because a) confidentiality can 
be legally and practically assured to the same extent in any event or b) 
because, to the extent it is legal to require these employees to abide by 
Church prohibitions on contraception, factoring into the feasibility of an 
alternative to the accommodation the degree to which the alternative 
facilitates deceiving the employer is not something that can openly and 
properly be discussed?Please forgive my ignorance if the answers to these 
questions are obvious.
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RE: Has anyone compiled the facts re Hobby Lobby type corporate ACA mandate plaintiffs?

[Case, Mary Anne]

Thanks Tom.  I was about to ask a research assistant to do exactly that when it 
occurred to me I might not need to reinvent the wheel and sent out the query to 
check.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Thursday, August 11, 2016 4:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Has anyone compiled the facts re Hobby Lobby type corporate ACA 
mandate plaintiffs?


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<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 Case, Mary Anne 
<mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>>
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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Has anyone compiled the facts re Hobby Lobby type corporate ACA mandate plaintiffs?

[Case, Mary Anne]

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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RE: Christian convert's claim that church broke confidentiality promise and thus exposed him to attack for apostasy in Syria

[Case, Mary Anne]

Eugene asks, “ Why wouldn’t that be a legally enforceable contract ?” What 
consideration is there for the Church and its agents?  Conversion is a benefit 
to the convert, not the Church.  Consider a secular analogue, plaintiff seeks 
to participate in the rituals of a secular organization, be it the KKK or 
Yale’s Skull and Bones, and extracts a promise that the organization’s leaders 
will keep his participation confidential.  When the organization is offering a 
privilege and the individual is not even becoming a dues paying member, all the 
consideration seems to be flowing to the individual.  It’s a different case 
when, for example, a reporter promises confidentiality to a source, because the 
consideration is the information exchanged. Eugene also says in his WAPO piece, 
“But if the defendants really agreed not to reveal this information, then they 
have waived their free speech rights on this score.”   Does that mean that 
revenge porn is actionable breach of contract if  before sending a compromising 
picture the victim extracted a promise that it will not be more widely 
circulated?

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, June 26, 2016 9:14 PM
To: Law & Religion issues for Law Academics
Subject: Christian convert's claim that church broke confidentiality promise 
and thus exposed him to attack for apostasy in Syria

   Howard Friedman summarizes the decision in the case, but I’m not 
sure it’s right.  Among other things, the Complaint asserts that church 
officials expressly promised that plaintiff’s “baptism and conversion would 
remain private,” and breached that promise.  Why wouldn’t that be a legally 
enforceable contract (see 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/17/convert-to-christianity-sues-church-claiming-it-broke-confidentiality-promise-and-thus-exposed-him-to-attack-for-apostasy-in-syria/)?

   Eugene

Feed: Religion Clause
Posted on: Sunday, June 26, 2016 11:28 AM
Author: Howard Friedman
Subject: Court Says Religious Autonomy Precludes Adjudication of Suit By 
Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held 
that the "religious autonomy doctrine" requires it to dismiss a suit against a 
U.S. church by a convert from Islam to Christianity who was captured and 
tortured in Syria because of his conversion. The facts are set out more fully 
in a complaint (full 
text)
 filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to 
convert, but told First Presbyterian Church leaders that his conversion had to 
remain confidential because he periodically traveled back to Syria and the 
punishment for apostasy under Sharia law was death. Despite assurances of 
confidentiality, the church published an announcement of his baptism in its 
Order of Worship, which was posted on the World Wide Web.  After traveling back 
to Syria, plaintiff was bound, beaten and tortured by radical Muslims who 
threatened to behead him. He eventually escaped.  His suit alleges that the 
church is guilty of negligence, breach of contract and outrageous conduct 
leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, 
Oklahoma,
 (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of 
the names of those who have been baptized "is a key part of how the Church 
requires a conversion and baptism to be 'visible" to the world." The court went 
on to say:
the simple dispositive issue is whether the public dissemination of Plaintiff's 
name as a baptized person is "rooted in religious belief"
[A] secular Court like this one must not consider claims ... that arise out of 
a sacrament because a sacrament is part of the most sacred beliefs of that 
religious institution Defendants' deeply held religious belief about the 
visible, public nature of baptism must not be disturbed by this Court. 
[emphasis in original]
Tulsa 
World
 reports on the decision, with additional background.


View 
article...
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Anyone can 

questions re zubik oral argument

[Case, Mary Anne]

I've had the following questions about the Zubik oral argument which I'm hoping 
the list can help with, since the passage of time has not led me to what I 
assume are obvious answers:


1)  Why does everyone on the Court seem so blithely to agree with Paul 
Clement that for the government to take over a room in the Little Sisters' 
facility to operate a Title X clinic, even if they paid market price for the 
room, would of course be impermissible?  Couldn't such a government action be 
seen as a taking for public use with just compensation?  Are RFRA and/or RLUIPA 
thought more generally to protect religiously motivated property owners from 
what would otherwise be permissible takings?  If so, are there cases? And 
specifically with respect to access to contraception, might it not sometimes be 
the less restrictive alternative for a government, for example, to use eminent 
domain to take over space in, for example, a Catholic health care facility, in 
which medical goods and services which the facility objects to providing might 
be made available?

2)  When Roberts says, "Well, the way constitutional objections work is you 
might have to change current law,"  why is the response merely "laughter" 
rather than the observation that a RFRA objection is not a constitutional 
objection?



























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