7th Cir Establishment Clause standing case

[Derek Gaubatz]

 

Winkler v. Gates, No. 05-3451
 
In an Establishment Clause challenge to a statute requiring the U.S.
military to assist the Boy Scouts of America (BSA) organization with its
Jamboree, ruling for plaintiffs is reversed where the plaintiffs lacked
standing to bring the suit since the Jamboree statute is primarily an
exercise of congressional powers under the Military and Property
Clauses, and while the use of those powers necessarily requires some
incidental spending, the statute is not the kind of "tax and spend"
legislation that is open to a taxpayer challenge.

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3rd Cir ministerial exception case

[Derek Gaubatz]

The 3rd Circuit issued a new decision today in Petruska v. Gannon
University that brings it into line with the rest of the circuits on the
scope of the ministerial exception doctrine.   (A prior decision in the
case was withdrawn after rehearing).  

A link to the decision is here:
http://www.ca3.uscourts.gov/opinarch/051222pa.pdf


Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Friday, September 01, 2006 1:50 PM
To: Law & Religion issues for Law Academics
Subject: Lofton/God/polygamy

"Bobby" asks some good questions. But before I respond, let me, please,
refresh our memories as to exactly what the context of our discussion
here is. The context here is what Mr. Finkelman said which is: "Biblical
law of course allows polygamy. If it was good enough to the Biblical
patriarch and King Solomon, why isn't good enough for people today?" 
 
COMMENT: I believe Mr. F's obvious assumption that "Biblical law of
course allows" polygamy because people in the Bible did it and that's
good enough for us today is a poor hermeneutic that is very dangerous.
OK, now to what "Bobby" writes, please.

"Bobby": "How much weight does the absence of such a quote have in a
discussion of what God does or does not approve of?"

COMMENT: Didn't say there was no such quote -- though I doubt there is
one showing that God APPROVES polygamy. I merely asked Mr. F for
Scripture to support what he said since he was talking about God's Law.
I would strongly advise that whenever you're talking about what you
think God's Law explicitly or implictly "allows," and by this word
"allow" you're leaving the impression that God APPROVES of that which He
"allows," yes, indeed, I think what you're saying must be on a solid
Scriptural basis. We should not talk loosely about God and what we
believe He says, thinks, approves or "allows." Be very careful here.

"Bobby:" "What counts as God approving of a practice?"

COMMENT: If you say God approves of a practice, I'd say the burden of
proof is on YOU. Tell me what makes you think what you think. Show me
the basis for your thinking in the Bible. 

"Bobby": "Must the Bible explicitly say that God approves of a
particular practice to infer that He approves of it? Must He
specifically state his disapproval?"

COMMENT: No, I'd say certain things can be known by a reasonable
inference from Biblical passages.

"Bobby": "Does God ever reproach Abraham for his marriage practices?
Aren't there many practices described in the Bible of which God
approves--common practices--despite God never explicitly stating is
approval?"

COMMENT: By reasonable inference, as one of my Bible dictionaries says,
Scripture presents monogamy as the divine ideal. The Creator made
marriage as a union between one man and one woman . Apparently polygamy, like divorce, was tolerated
because of the hardness of peoples' hearts . After the time
of Moses, polygamy continued to be practiced, especially by wealthy
individuals, such as Gideon, Elkanah, Saul, and David <1 Sam. 1:2; 2
Sam. 5:13; 1 Kin. 11:3>. But the most famous polygamist in the Bible was
King Solomon: "And he had seven hundred wives, princesses, and three
hundred concubines; and his wives turned away his heart" <1 Kin. 11:3>.
The criticism of polygamy expressed in , therefore,
is not surprising: the ideal king to whom Israel's obedience can be
rightly given shall not "multiply wives for himself, lest his heart turn
away." John Lofton, Editor, TheAmericanView.com; Recovering
Republican...

P.S. This Saturday (September 2), from 1 p.m. until 4 p.m. (Eastern
Standard Time), our "The American View" radio show will be on "The Faith
& Freedom Network." You can hear our program this coming Saturday by
going to this Network's Web site www.faithandfreedomnetwork.com and
clicking on "Listen Now" at the top of the page. The programs you will
hear this coming Saturday are, in this order: (1) A new program where
Michael Anthony Peroutka (Constitution Party Presidential candidate in
2004)and I introduce ourselves with some biographical information; and
we examine in detail what exactly THE American View was and still is --
a distinct view based on Biblical Christianity; (2) Our interview with
Terri Schiavo's lawyer David Gibbs who has written a new book about her
murder (this is the same Program 73 which is on our Web site); and (3)
An older "TAV" show in which Islam expert Robert Spencer tells the truth
about Islam and we wonder why President Bush has said, repeatedly, that
this faith is a religion of "peace." 








-- 
"Accursed is that peace of which revolt from God is the bond, and
blessed are those contentions by which it is necessary to maintain the
kingdom of Christ." -- John Calvin.

___
To post, 

4th Circuit rules (again) in favor of the Good News Club

[Derek Gaubatz]

This is the case's second trip to the 4th Circuit, and once again the
court invalidates the Montgomery County School District's various
machinations to prevent the Good News Club access on equal terms to the
forum of take-home flyers given to the students.  

http://pacer.ca4.uscourts.gov/opinion.pdf/051508.P.pdf

Congrats to all the list participants at CLS who had a hand in achieving
the favorable result for the Good News Club.

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 


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RE: Book recommendations for non-lawyers who want to be informed

[Derek Gaubatz]

In my relatively unbiased opinion, the best
and most entertaining book out there is The Right to Be Wrong:  Ending the Culture
War Over Religion in America written by Becket Fund founder Kevin “Seamus”
Hasson.

 

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M Pardee
Sent: Wednesday, March 01, 2006
6:33 PM
To: religionlaw@lists.ucla.edu
Subject: Book recommendations for
non-lawyers who want to be informed



 


What books would you recommend for non-lawyers such as
myself who want to have as full an understanding of the first amendment
religion clauses as they can outside of being able to attend law school?  I'm
thinking something that would not only address the significant cases and
issues, but would also give a fair and unbiased explanation of both the strict
constructionist perspecitve as well as the (for lack of the proper term)
"Constitution as a living document" school of thought.  I have
Stephen Carter's books, "Culture of Disbelief" and "God's Name
In Vain".  What else should I look for? 

Brad






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RE: Breaking news in federal RFRA case

[Derek Gaubatz]

 

Given that RFRA was a response to a
decision that dealt with drug use, it seems unlikely that it never crossed
Congress’ collective mind that the Act would be applied in cases
involving drugs.  But even if your point about post hoc justification were
true, then it seems equally post-hoc to use the allegedly grave threat RFRA
poses to children as a tug-on-the-heart-string argument against RFRA now that
constitutional arguments have been rejected.  

Moreover, if there is actual evidence of
danger to children as extraordinary as you claim in a specific case,
there’s little reason to think that courts will not be able to sensibly
apply RFRA to take account of that interest. 

 

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Friday, February 24, 2006
10:48 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Breaking news in
federal RFRA case



 





Read the legislative history behind RFRA
from beginning to end -- the administration of illegal drugs to children
by religious groups is not there.  It is a wholesale reconstruction
of history to believe that Congress considered the issue in any way,
shape, or form.  The vast majority, i.e., over 95%, of the legislative
history involves castigating the Supreme Court for Smith.  The practical
consequences of RFRA were never approached, because Congress's purpose was to
reverse a Supreme Court decision, without any meaningful consideration of what
that would accomplish at a policy level.  Now, there are post hoc
justifications for RFRA proffered all around, but they do not displace what
Congress actually considered and actually knew at the time it was
enacted.  





 





As to policy choices, it is my view
that RFRA is unsound constitutionally and policy-wise, but the latter does
not undermine the former.  





 





And, yes, the placement of a drug on
Schedule I does, indeed, end the discussion when the drug is being
administered to minors.  The fact the drugs were delivered in a religious
context does not change the extraordinary interest of the children.





 





Marci





 





 





In a message dated 2/23/2006 2:36:19 P.M.
Eastern Standard Time, [EMAIL PROTECTED] writes:





You assume that the placement of a drug on
Schedule I ends the discussion.  I hope that you do not think that it is
jesting to suppose that that placement does not end the discussion. 
Congress surely must have some sense of the consequences of its decisions (1)
to place the drug on Schedule I and (2) to enact RFRA.







 








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RE: Alito and Religion

[Derek Gaubatz]

It's not just older cases that have done this.  The 2nd Circuit, in an
opinion by Judge Calabresi, did so less than 2 weeks ago.  Peck ex rel.
Peck v. Baldwinsville Central School Dist.  Judge Calabresi recognized
that the rule of viewpoint neutrality has been and remains a "core facet
of First Amendment protection."

Nor do I think it's a particularly liberal or conservative issue to ask
federal courts to enforce a rule prohibiting viewpoint discrimination in
schools.  Indeed, in light of the value that our society has
traditionally placed on academic freedom, it seems surprising that we
would be happy with the idea that educators may systematically censor
particular viewpoints from students responding to classroom assignments.


Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Monday, October 31, 2005 5:15 PM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion




I'm aware that some circuits in some older cases read Hazelwood to be a
non-public forum case and require the rigorous review of viewpoint
discriminatory pedagogical decisions in a school classroom. I think
these cases are wrong. Other circuits read Hazelwood more broadly and
clearly have the better of the argument -- particularly in light of
recent Supreme Court decisions.

The direction of the Court's free speech cases has been to move away
from forum analysis in evaluating the decisions of librarians, broadcast
programmers and other officials whose work involves discretionary
judgments about both the content and viewpoint of speech. In Arkansas
Public Television and in American Library Association, the Court
recognized that government expressive institutions are not forums.
Judicial review of the decisions made by the officials running these
institutions should be lenient -- if indeed these decisions should be
subject to judicial review at all.

It does not matter whether we are talking about librarian discretion,
editorial discretion, curricular discretion, or pedagogical discretion.
Teachers, librarians, and others simply can not do their jobs without
making choices that could render them vulnerable to claims of content
and viewpoint discrimination. Subjecting their decisions to strict
scrutiny on free speech clause grounds is impractical  -- and more
critically, it substitutes the judgment of the federal courts for value
based decisions that should be left to political determination --
except in the most egregious of situations.

The line the Court draws between content and viewpoint discrimination is
nowhere near clear enough to permit this distinction to be employed as a
basis for rigorously reviewing the decisions of people whose business it
is to make decisions about speech. And even if the line was clearer than
it is, rigorously reviewing viewpoint discriminatory decisions would
still make no sense because part of the job of these officials to make
distinctions based on viewpoint. This is particularly true when we are
talking about elementary schools where part of what teachers do is to
teach basic values, manners, morality and citizenship. There is nothing
neutral about favoring stories promoting honesty, for example.

If we took the argument seriously that viewpoint discriminatory
judgments by teachers regarding student speech is subject to strict
scrutiny review, the federal courts would become the de facto principals
and schools boards of every public school in the United States. It is
hard to believe that this suggestion is supported by conservatives who
claim to be advocates of judicial restraint.

Alan Brownstein
UC Davis



Hazelwood specifically limited itself to allowing schools greater leeway
to engage in subject matter restrictions.  It did not lift the
requirement that strict scrutiny continue to apply to the more invidious
censorship based on viewpoint (which, of course, includes religious
viewpoints).So for example, in Searcey v. Harris, 888 F.2d 1314
(11th Cir. 1989), the Eleventh Circuit held:
   
Although Hazelwood provides reasons for allowing a school official to
discriminate based on content, we do not believe it offers any
justification for allowing educators to discriminate based on viewpoint.
The prohibition against viewpoint discrimination is firmly embedded in
first amendment analysis.  Without more explicit direction, we will
continue to require school officials to make decisions relating to
speech which are viewpoint neutral.

See also Planned Parenthood of Southern Nevada, Inc. v. Clark County
Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc) (holding that
school newspaper, sporting event programs, and yearbook were
school-sponsored, non-public fora under Hazelwood and Cornelius, and
therefore "control over access . . . can be based o

RE: Alito and Religion

[Derek Gaubatz]

Hazelwood specifically limited itself to allowing schools greater leeway
to engage in subject matter restrictions.  It did not lift the
requirement that strict scrutiny continue to apply to the more invidious
censorship based on viewpoint (which, of course, includes religious
viewpoints).So for example, in Searcey v. Harris, 888 F.2d 1314
(11th Cir. 1989), the Eleventh Circuit held:
   
Although Hazelwood provides reasons for allowing a school official to
discriminate based on content, we do not believe it offers any
justification for allowing educators to discriminate based on viewpoint.
The prohibition against viewpoint discrimination is firmly embedded in
first amendment analysis.  Without more explicit direction, we will
continue to require school officials to make decisions relating to
speech which are viewpoint neutral.

See also Planned Parenthood of Southern Nevada, Inc. v. Clark County
Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (en banc) (holding that
school newspaper, sporting event programs, and yearbook were
school-sponsored, non-public fora under Hazelwood and Cornelius, and
therefore "control over access . . . can be based on subject matter and
speaker identity so long as the distinctions drawn are reasonable in
light of the purpose served by the forum and are viewpoint neutral.")


Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Toni M. Massaro
Sent: Monday, October 31, 2005 12:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

I am sure others will climb aboard here, but I think this is not what
Hazelwood held. Rather, the holding centered on "school-sponsored
expression"  and stated that as to such expression, the school's
censorship authority is limited to the following:

"It is only when the decision to censor a school-sponsored publication,
theatrical production, or other vehicle of student expression has no
valid educational purpose that the First Amendment is so 'directly and
sharply implicated,' ...as to require judicial intervention to protect
students' educational rights."

Hazelwood falls into the cluster of cases (e.g. Fraser) that give
schools substantial authority over things they deem within the
"curriculum."  The Court permits the schools to enforce civility norms
here.

Did you mean Pico? Or even Tinker?  (Though Tinker is the high water
mark of student expressive freedom, is rather old, set the "substantial
disruption" brake on expression, and did not deal with religious
expression per se.)

The lower court cases have been quite deferential to schools' decisions
to excise from the curriculum things they deem unsuitable for children.
In a few cases, that has meant excision of Lysistrata and The Miller's
Tale, which were thought to be sexually explicit and excessively vulgar.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Derek Gaubatz
Sent: Monday, October 31, 2005 10:34 AM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

Alan what serious questions are you referring to?  It seems to me that
Judge Alito's position reflects the majority view of the courts of
appeals that  Hazelwood requires application of strict scrutiny to
viewpoint based censorship of student speech.  



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Monday, October 31, 2005 12:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

Whether O'Connor would have decided Oliva the same way or not, Alito's
opinion in this case raises some serious questions about his
understanding of free speech doctrine. If I understand his opinion
correctly, Alito argues that public school classrooms and students
assignments are non-public forums, and, therefore, viewpoint
discriminatory restrictions on student speech in either context should
be reviewed under strict scrutiny. 

The captive audience issue Marc raises is only part of the problem.

Alan Brownstein
UC Davis


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern
Sent: Monday, October 31, 2005 7:47 AM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

It is not all apparent which way Justice O'Connor would have voted in
the Oliva case, which involved a clash between the right of the speaker
and the power of school officials to protect a captive audience against
forced religious speech. Justice O'Connor has not endorsed the straight
equal treatment approach to speech/establishment Clause issues endorsed
for example by Justice Scalia for a plurality In

RE: Alito and Religion

[Derek Gaubatz]

Alan what serious questions are you referring to?  It seems to me that
Judge Alito's position reflects the majority view of the courts of
appeals that  Hazelwood requires application of strict scrutiny to
viewpoint based censorship of student speech.  



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Monday, October 31, 2005 12:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

Whether O'Connor would have decided Oliva the same way or not, Alito's
opinion in this case raises some serious questions about his
understanding of free speech doctrine. If I understand his opinion
correctly, Alito argues that public school classrooms and students
assignments are non-public forums, and, therefore, viewpoint
discriminatory restrictions on student speech in either context should
be reviewed under strict scrutiny. 

The captive audience issue Marc raises is only part of the problem.

Alan Brownstein
UC Davis


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern
Sent: Monday, October 31, 2005 7:47 AM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

It is not all apparent which way Justice O'Connor would have voted in
the Oliva case, which involved a clash between the right of the speaker
and the power of school officials to protect a captive audience against
forced religious speech. Justice O'Connor has not endorsed the straight
equal treatment approach to speech/establishment Clause issues endorsed
for example by Justice Scalia for a plurality In Capitol Square review
board.
Marc Stern 
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Lupu
Sent: Monday, October 31, 2005 10:40 AM
To: Law & Religion issues for Law Academics
Subject: RE: Alito and Religion

I have taken a quick look at Alito's Religion Clause opinions, and I 
have two observations:

1.  None of them are about funding issues, so we don't know where 
he stands on those (i.e., where would he have been in, for example, 
Mitchell v. Helms?).  (I think it is very difficult to extrapolate from
any 
other issues to funding issues.)

2.  I have found no opinion of Alito's on Religion Clause questions in 
which it is apparent that Justice O'Connor would have disagreed 
with him.  Does anyone on the list have a different take on that 
comparison?

Chip 

On 31 Oct 2005 at 9:48, Anthony Picarello wrote:

> 
> There are even more to choose from:
> -ACLU v Schundler (rejecting EC challenge to holiday display under
> endorsement test) -ACLU v Wall Twp (rejecting EC challenge to holiday
> display for lack of standing) -Blackhawk v PA (upholding FEC challenge
> by Native American bear owner against PA 
> policy forbidding keeping animals in captivity)
> -CH v Oliva (dissent in 6-6 split of 3d Cir en banc involving
> viewpoint discrimination 
> challenge to prohibition on 1st grader(tm)s choice to read
Beginner(tm)s
> Bible story (containing no reference to God) in response to
> classroom assignment to pick favorite story).
> 
> -Original Message-
> From:[EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Marty
> Lederman Sent: Monday, October 31, 2005 9:29 AM To: Law & Religion
> issues for Law Academics Subject: Alito and Religion
> 
> As most of you probably already know, Judge Alito has written
> several very interesting opinions on the religion clauses,
> including, most notably, FOP v. Newark (1999), perhaps the
> strongest post-Lukumireading of the Free Exercise Clause in the
> courts of appeals, and Christian Evangelism Fellowship(2004),
> involving whether a religious organization was constitutionally
> entitled to hand out literature to elementary school students (and
> whether the school district would violate the Establishment Clause
> by permitting such activity).
> 
> 



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: 6th Cir. and RLUIPA

[Derek Gaubatz]

One would think that the best evidence of intent is the language of the statute 
itself that Congress enacted, which most observers would recognize as the 
strict scrutiny standard rather than Turner's.  
And Marci, I guess I'm a little surprised that though you often emphasize the 
importance of not letting judges have open ended discretion to make law, here 
you seem to not be troubled by judges abandoning the text of the statute in 
favor of a judicially created more deferential standard of review.

 
--
Sent from my BlackBerry Wireless Handheld


-Original Message-
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: religionlaw@lists.ucla.edu 
Sent: Fri Sep 16 17:48:36 2005
Subject: Re: 6th Cir. and RLUIPA

RLUIPA should mean what Congress intended, and the Court used Congress's plain 
intent to interpret it.  As I've said before, RLUIPA is now hardly different 
from the standard set out in Turner.  I do not mean to open up a new thread, 
since it was thoroughly beaten to the ground, but I am not surprised to see a 
decision like Hoevenaar.  The Ninth Cir's recent interpretation of RLUIPA's 
prison provisions post-Cutter, without reference to Cutter except to say RLUIPA 
was upheld, and with extraordinarily strict scrutiny, is further evidence of 
why it is the most highly reversed Cir in the country.  
 
Marci
 
In a message dated 9/16/2005 5:11:35 P.M. Eastern Standard Time, [EMAIL 
PROTECTED] writes:

Cutter, and now Hoevenaar seems 
to have made the states job much easier.  If anyone is interested in the 
states short brief let me know. Hoevenaar seems to leave very little, 
room for the goals articulated by RLUIPA. I am wondering what is or 
should be left.

Susanna Peters


 

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6th Cir Decision in Cutter

[Derek Gaubatz]

Sixth Circuit just issued its decision on remand: 
joins the 7th, 9th, and 11th circuits in
upholding RLUIPA on Spending Clause grounds and rejecting 10th
Amendment argument. 

 

 



Derek L. Gaubatz

Director of Litigation

The Becket Fund for Religious Liberty

1350 Connecticut Avenue, NW, Suite 605

Washington DC 20036

202 349-7208 (phone)

202 955-0090 (fax)



 






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7th Cir upholds denial of religious conscientious objector

[Derek Gaubatz]

Alhassan v. Hagee , No. 04-2446 (7th Cir. September 01, 2005)
Denial of plaintiff's request for discharge from the Marine Corps as
a conscientious objector is affirmed where the Marine Corps had
substantial evidence to determine that plaintiff's position was not
sincerely and deeply held.

http://caselaw.lp.findlaw.com/data2/circs/7th/042446p.pdf 

Here's the conclusion of the opinion:

It is not our function, as the reviewing court, to determine
whether the Marine Corps had substantial evidence to
determine that Alhassan's opposition to war was not
adequately based on religious training and beliefs, or that
his position was not sincerely and deeply held. The relationship
between a person, his or her deity, and his or her
religion is a highly personal matter, and one in which it can
take as long as a lifetime, or even as short as a few days, to
develop a sincere and deep understanding of religious
teachings, dogma, and the deity that one believes in itself.
Our duty is only to determine whether there is a basis in
fact for the Marine Corps's decision to deny Alhassan's
application as a conscientious objector. The simple fact is
that the timing of this application, combined with the
enlistment contract that Alhassan signed stating that he
did not have a conscientious objection to war, along with the
fact that Alhassan did not mention his beliefs to anyone in
his chain of command nor his close friends until his imminent
departure to Iraq, lead us to believe that the government
has indeed provided affirmative evidence supporting
its decision to deny Alhassan's application as a conscientious
objector, and as such has created a basis in fact for its
decision. Therefore we AFFIRM the decision of the district
court.

Alhassan v. Hagee , No. 04-2446 (7th Cir. September 01, 2005)
Denial of plaintiff's request for discharge from the Marine Corps as
a conscientious objector is affirmed where the Marine Corps had
substantial evidence to determine that plaintiff's position was not
sincerely and deeply held.

To read the full text of this opinion, go to:

[PDF File]
http://caselaw.lp.findlaw.com/data2/circs/7th/042446p.pdf



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

[Derek Gaubatz]

Here's a fuller version of the statement from Seamus Hasson of the Becket Fund 
that Marty references below:
 

In recent times it has been fashionable for lawyers to debate whether we have a 
“living Constitution.”  This debate was settled.  We have a living 
Constitution. Her name is Sandra Day O’Connor and thank God she is retiring.  
The whole reason for having a written Constitution is to establish a fixed set 
of principles by which we order our institutions and settle our disputes.  But 
for many years, no one could know what the Constitution actually stood for 
until somebody asked Sandra Day O’Connor.  This means that we were not living 
under a written Constitution at all, but under one that literally walked the 
halls of the Supreme Court.  

 

When it came to religious liberty, every case was in doubt until the moment 
Justice O’Connor voted because even her own precedents could not predict the 
outcome of new cases.  That’s amazingly counterproductive for a nation that 
believes in the rule of law.  Her approach to religion law questions made 
everything turn on what an imaginary “objective observer” would think. But 
there was no way to know what this imaginary person would think until Justice 
O’Connor imagined it.  A study of her opinions reveals that the views of the 
so-called objective observer ended up bearing a striking resemblance to the 
personal and subjective whims of Justice O’Connor herself.  So, she was for 
legislative chaplains, but against a moment of silence; for under God in the 
Pledge of Allegiance, but against displaying the 10 Commandments; for a menorah 
in a holiday display, but against a nativity scene.  Her approach made 
everything a matter of her subjective judgment and that’s not why we have a 
Constitution. Although she was well-intentioned, she was slowly but surely 
reinventing monarchy.

As for the future of the Court—and therefore our religious liberty under the 
Constitution—it all depends on who replaces her.  Justice O’Connor was one of 
two swing votes on this issue. Sometimes she voted with the hardcore 
secularists who banished religion from public life; sometimes she voted with 
the conservative wing to uphold the tradition of religion in public culture.  
The only thing we can say for sure on this point is that her retirement will 
bring clarity. Whether that’s a hard left or hard right clarity, or a centrist 
clarity, will all depend upon her successor. Right, left or center, the law 
will be clearer, and that in itself is a good thing. 

 

-Original Message- 
From: [EMAIL PROTECTED] on behalf of Marty Lederman 
Sent: Sat 7/2/2005 10:50 AM 
To: Law & Religion issues for Law Academics 
Cc: 
Subject: Pop Quiz: Justice O'Connor and the Religion Clauses


QUESTION ONE
 
Those of you who have already glanced over at Howard Friedman's blog 
will already know the answer to this first question and thus are disqualified.  
If you haven't looked over there yet, don't peek.
 
It is fair to say -- as most of us have in fact repeatedly said -- that 
Justice O'Connor has written the Law of the Religion Clauses over the past 
generation, and that as her retirement approaches, the governing law in the 
area is predominantly what SOC has said it is.  Believe it or not, however, in 
her 24 Terms on the Court Justice O'Connor has written only one majority 
opinion dealing with the Religion Clauses.
 
Name her single majority opinion.  (How long did it take you to figure 
out the answer?)
 
 
QUESTION TWO
 
According to the Washington Post, the Becket Fund for Religious Liberty 
yesterday issued a statement "thank God she's retiring."  Presumably this 
sentiment is the function of the view that Justice O'Connor's jurisprudence has 
harmed religious liberty.  (I welcome any corrections or qualifications from 
the Becket folks on this list -- I haven't been able to find the full 
statement.)  Rick Garnett, on the other hand, writes on his blog that "In my 
view, she was -- among other things -- a consistent and important defender of 
religious freedom, and of the constitutional principle that our First Amendment 
does not require discrimination against religious believers or the exclusion of 
religion from the public square."
 
Who's right?  
 
 

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RE: RLUIPA and Kelo v. City of New London

[Derek Gaubatz]

Cottonwood Christian Center v. City of Cypress, 218 F.Supp.2d 1203
(C.D.Cal. 2002) provides a good example of how both the Free Exercise Clause
and RLUIPA protect churches and other religious institutions in eminent domain
cases.  In the end, Kelo doesn’t really change the status quo for
religious institutions, since the Free Exercise Clause and RLUIPA already
provided the better avenue of protection as compared to the Takings Clause. 
Put another way, though a decision the other way in Kelo would have provided
religious institutions an additional measure of protection in cases where
cities seek to take property for tax revenue or economic development, the Free
Exercise Clause and RLUIPA will still protect them.    

 



Derek L. Gaubatz

Director of Litigation

The Becket Fund for Religious Liberty

1350 Connecticut Avenue, NW, Suite 605

Washington DC 20036

202 349-7208 (phone)

202 955-0090 (fax)



 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Pardee
Sent: Thursday, June 23, 2005 6:44
PM
To: Law & Religion issues for
 Law Academics
Subject: RLUIPA and Kelo v. City
of New London



 



In light of the Supreme Court's
decision today in Kelo v. City of New London, will the RLUIPA protect
churches if a local government tries to take church property, ostensibly on the
grounds that it will better serve a public use as tax generating commercial
property?





 





Brad








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RE: Rational Basis v. Intermediate Scrutiny .:.

[Derek Gaubatz]

I would note, though, that Mr. Marti's Supreme Court brief for Ohio
in Cutter identifies prisoner-plaintiffs as "presumptive losers"
under the Turner test, not exactly the hallmark of intermediate scrutiny.  
Moreover, Ohio's brief also states that under RLUIPA, plaintiffs are now
"presumptive winners."  Though this may exaggerate things a bit, it
does show that in light of RLUIPA's plain language and legislative history,
even the Ohio DOC recognized that RLUIPA intended to and did reject the Turner
standard.   

 

To be sure, the Supreme Court recognized in Cutter that RLUIPA's
legislative history states that "due deference" should be given to
prison officials in applying RLUIPA's compelling interest standard with
"particular sensitivity to security concerns."  But the Court did not
then go onto construe this legislative history to mean that Congress in fact
intended to do nothing more than codify Turner (let alone hold that lower
courts should apply a Turner/RLUIPA standard).  To the contrary, the Court
actually took time (in footnote 12) to expressly distinguish between
"the deferential rational-relationship standard described in Turner v. Safley"
and RLUIPA's "compelling interest standard."  

 

 







From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Todd R. Marti
Sent: Monday, June 06, 2005 4:31 PM
To: Law & Religion issues for
Law Academics
Subject: RE: Rational Basis v.
Intermediate Scrutiny .:.

In
Marci's defense, the Turner
standard is  somewhat more demanding that traditional rational basis
review and hence can quite fairly be referred to as a form of intermediate
scrutiny. 

 

Rather
than being defensible on the basis of any governmental interest, Turner restricts
the supporting interests  the more narrow set of penological interests. Turner also
requires consideration of alternative means to exercise the restricted right
and the feasibility of alternative means to advance the supporting interest,
neither of which are considered in regular rational basis review. 

 

Indeed,
that's why counsel representing correctional defendants tried after Smith (w/
mixed success) to convince the courts that Smith, rather than O'Lone,
governed prisoner Free Exercise claims.

 







From: Menard, Richard H. [mailto:[EMAIL PROTECTED] 
Sent: Monday, June 06, 2005 4:16 PM
To: Law & Religion issues for
Law Academics
Subject: RE: Rational Basis v.
Intermediate Scrutiny .:.

Stop
digging.



 







From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of [EMAIL PROTECTED]
Sent: Monday, June 06, 2005 3:55 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Rational Basis v.
Intermediate Scrutiny .:.





I think we're trying to make a science out of an arena we all
agreed ages ago was not susceptible to scientific calculation.  But in
response to your question:





 





There
is rationality review, there is rationality review with bite, there is
intermediate review that is relaxed, there is stronger intermediate review,
etc., etc.   The Williamson v. Lee Optical standard makes it
IMPOSSIBLE to invalidate a law, because the irrational satisfies a
 "rational standard."  Williamson is clearly not the
standard in Turner, which puts some force behind the question whether the
penological interest is sufficiently legitimate.  If one looks at the
Turner case itself, you can see it.  Perhaps I should have said that the
Turner standard is the rationality standard of Cleburne in the Equal Protection
context -- rationality with real bite?  That  standard is in the
intermediate range, as opposed to either end of the spectrum.  It is not
the Williamson, its
only-unconstitutional-if-you-actually-die-laughing-when-you-read-it standard.





 





Marci





 





 





In a
message dated 6/6/2005 3:21:24 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:





Prof.
Hamilton writes:

"'Legitimate' is one of the buzz words for
intermediate scrutiny."

This came as quite a surprise to me.  I always thought
it was black-letter law that "legitimate" was part of
the rational-basis standard.  

As recently as 2000, in Kimel v. Florida Bd of
Regents, the Supreme Court explicitly described
"rational basis review" as requiring government action
to be "rationally related to a legitimate state
interest."

Am I missing something about the word "legitimate"?

I also found Prof. Hamilton's subsequent message
perplexing, where she writes:

"[The Turner 'reasonably related to a legitimate
penological interest' standard] is not rationality
review, either.  Once again, read  Williamson.  There
is a difference of opinion here on interpretation of
Supreme Court opinions.  I believe that is where we
should leave it."

I've read Williamson, and I've looked carefully at the
language used in Turner and the rational basis cases,
and I'm still not understanding Prof. Hamilton's
argument.  

Is she arguing that the Turner standard is not
rationality review because it says "reasonably
related" instead of "rationally rel

RE: Nullifying RLUIPA

[Derek Gaubatz]

Marci,

Do you concede that RLUIPA may require a
prison to satisfy at least some religious dietary requests?  If so, which
ones and what criteria under the statute should be used to make the distinction? 
(Let’s assume we’re talking about sincerely held requests).

 

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of [EMAIL PROTECTED]
Sent: Friday, June
 03, 2005 9:03 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Nullifying RLUIPA

 





No, my
question was whether a prison was required under RLUIPA to satisfy all
religious demands regarding diet.  I think the answer has to be no, given
the huge variety of claims, even within the category
"vegetarian,"  but I think others may disagree.





 





Marci





 





 





 





In a
message dated 6/3/2005 11:43:28 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:







Is it
really so controversial that prisons should be "required" (as a
condition on the receipt of federal funds) to allow religious prisoners to
sip small amounts of wine during religious rituals? 









 








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Re: Locke v. Davey follow-up

[Derek Gaubatz]

I'm not so sure that I agree with Eugene's analysis.  What's the difference 
between saying you're only eligible for unemployment compensation if you forego 
certain religious conduct (Sherbert) and you're only entitled to disability 
benefits if you forego certain religious conduct?  But certainly if the law 
expressly provided a system of individualized exemptions that allowed 
disability benefits to go to nonreligious charities but prohibited tithing, it 
would seem to be an easy case.
I also have a recollection of a rfra case finding, in the bankruptcy context, 
that it was a substantial burden to prevent a debtor from tithing.

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Ave, NW Suite 605
Washington D.C. 20036
(202) 349-7208
(202) 955-0090 (fax)
--
Sent from my BlackBerry Wireless Handheld


-Original Message-
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics 
Sent: Tue May 03 18:59:35 2005
Subject: RE: Locke v. Davey follow-up

I much appreciate Allen Asch's input on this.  I should say that a ban on 
charitable contributions from disability checks would probably be 
constitutional.  But the question on this thread, I think, is whether it's 
constitutional to ban *only religious contributions* (or only payments for 
informal religious education), while still allowing nonreligious contributions.
 
Eugene
 
-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, May 03, 2005 3:46 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Locke v. Davey follow-up



In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL 
PROTECTED] writes:




The reason I find Eugene's hypo uninteresting is the unreality of it.  Of 
course, I say this despite having seen  many things I once thought from the 
realm of fantasy come to pass.



I wouldn't be so sure. Because I used to help moderate the ACLU message boards 
(http://forums.aclu.org), I've seen a lot of strange complaints posted 
including one very similar to the Volokh hypo and Brownstein corollary. I 
particularly recall a reverend in Oklahoma posting about a married couple in 
his church who receive both federal Section 8 housing assistance and a state 
disability check. The state of Oklahoma apparently prohibits the husband from 
using his disability check to tithe to the church. The couple's apartment 
manager also says they can't hold Bible study meetings in Section 8 housing. 
See the December 11, 2004 post in the thread at this link/address: 
http://forums6.aclu.org/messageview.cfm?catid=81 
 
&threadid=7115&STARTPAGE=3

While the apartment manager's prohibition of Bible study classes held in 
section 8 housing seems to me vulnerable to several successful constitutional 
challenges, the state of Oklahoma's purported prohibition of tithing by someone 
getting a disability check as their sole source of income seems much more 
constitutionally tenable (however wrong as a legislative choice). As a point of 
comparison, as a public defender, I represented welfare recipients subject to 
similar coercive pressures. I represented welfare recipients charged with 
failing to disclose income, assets, or even household members (and their 
income) that could be used to reduce their benefits. If the state can use 
benefits to coerce a person's right to choose their living arrangements (as 
protected by Moore v. East Cleveland), I'm not sure why the state could not 
forbid giving a disability check to charities, religious or otherwise.

In any case, to the extent the posting on the ACLU message board is accurate 
(and it has some ring of truth), the Volokh hypo and Brownstein corollary are 
not so farfetched.

Allen Asch
Attorney at Law
Sacramento, CA 


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Supreme Court grants cert in RFRA case

[Derek Gaubatz]

GONZALES,
ATT'Y GEN., ET AL. V. O CENTRO ESPIRITA ETC., ET AL. 

 

 



Derek L. Gaubatz

Director of Litigation

The Becket Fund for Religious Liberty

1350 Connecticut Avenue, NW, Suite 605

Washington DC 20036

202 349-7208 (phone)

202 955-0090 (fax)



 

 






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RE: Religion-only accommodation question

[Derek Gaubatz]

The problem I see is that it seems to me that many (if not all)
religious accommodations can be characterized as involving some
expressive component that will have a secular expressive counterpart.
Thus I question the feasibility of an approach that seems to divide
religious accommodations into two categories--those that implicate
religious speech (impermissible unless nonreligious folks get the
accommodation also) and those that don't (presumably permissible). 

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Thursday, March 31, 2005 4:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religion-only accommodation question

I think we may be talking at cross purposes here. My point, and I think
it 
is Eugene's as well, is that when a religious accommodation directly 
implicates speech and association interests, either the Establishment 
Clause or the Free Speech Clause or both may apply and may invalidate
the 
accommodation. The most obvious example is a religious accommodation
that 
exempts religious speakers (whose speech constitutes the exercise of 
religion) from a valid time, place and manner regulation that secular 
speakers must obey.

Are you suggesting that such accommodations are always constitutional?
I'm 
more than willing to agree that not every accommodation that gives a 
religious beneficiary some kind of attenuated competitive advantage 
violates the Constitution -- and I recognize that determining when an 
accommodation impermissibly crosses the line to favor religious speakers
or 
speech may be difficult in close cases. Are you arguing that the line
isn't 
crossed by the Leonard Law  -- or are you arguing that there is no line
and 
that the legislative accommodation of religious speakers is always
valid, 
without regard to how significantly they discriminate in favor of the 
dissemination of religious messages and ideas?

Alan Brownstein
UC Davis







At 03:46 PM 3/31/2005 -0500, you wrote:
>I'm not persuaded that it matters or should matter.  Virtually any
>religious accommodation (e.g., Amos, accommodations for religious
peyote
>use, etc.) could be cast as providing a competitive advantage to the
>religious beneficiary of the accommodation versus someone who wants a
>similar accommodation for nonreligious reasons.  It is sufficient for
>constitutionality that the state recognizes that an accommodation will
>lift a government burden on religious exercise.  It doesn't need to do
>some sort of due diligence inquiry and simultaneously create exemptions
>for every group that has a nonreligious reason to request an exemption.
>
>
>As for Texas Monthly and whatever precedential value it may have, the
>plurality opinion in that case distinguished the case before it from
one
>involving "remov[al of] a significant state-imposed deterrent to the
>free exercise of religion."  I think that absent the religious
exemption
>in the Leonard Law, a good case could be made that the restrictions
>would impose a deterrent on the school's and parents' free exercise of
>religion.
>
>-Original Message-
>From: [EMAIL PROTECTED]
>[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
>Sent: Thursday, March 31, 2005 3:02 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Religion-only accommodation question
>
> Derek:  Is your argument that religion-only accommodations (by
>which I mean exemptions from some law for all religious objectors -- so
>not denomination-specific exemptions -- but not for nonreligious
>objectors) are *never* unconstitutional, even if they give religious
>speakers a substantial competitive advantage over secular speakers?  Or
>is it that they could be unconstitutional under some circumstances, but
>that the circumstances aren't present here?
>
> It seems to me that this exemption does potentially give
>religious schools a substantial edge over secular schools, and thus
lets
>them spread their religious ideologies more easily than secular schools
>can spread their secular ideologies.  Am I mistaken on this factually,
>or do you think that this just doesn't matter?
>
> Eugene
>
> > -Original Message-
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Derek
Gaubatz
> > Sent: Thursday, March 31, 2005 9:27 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Religion-only accommodation question
> >
> >
> > There may be good reasons to find the Leonard Law to violate
> > the free speech or association right

RE: Religion-only accommodation question

[Derek Gaubatz]

I'm not persuaded that it matters or should matter.  Virtually any
religious accommodation (e.g., Amos, accommodations for religious peyote
use, etc.) could be cast as providing a competitive advantage to the
religious beneficiary of the accommodation versus someone who wants a
similar accommodation for nonreligious reasons.  It is sufficient for
constitutionality that the state recognizes that an accommodation will
lift a government burden on religious exercise.  It doesn't need to do
some sort of due diligence inquiry and simultaneously create exemptions
for every group that has a nonreligious reason to request an exemption.


As for Texas Monthly and whatever precedential value it may have, the
plurality opinion in that case distinguished the case before it from one
involving "remov[al of] a significant state-imposed deterrent to the
free exercise of religion."  I think that absent the religious exemption
in the Leonard Law, a good case could be made that the restrictions
would impose a deterrent on the school's and parents' free exercise of
religion.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, March 31, 2005 3:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religion-only accommodation question

Derek:  Is your argument that religion-only accommodations (by
which I mean exemptions from some law for all religious objectors -- so
not denomination-specific exemptions -- but not for nonreligious
objectors) are *never* unconstitutional, even if they give religious
speakers a substantial competitive advantage over secular speakers?  Or
is it that they could be unconstitutional under some circumstances, but
that the circumstances aren't present here?

It seems to me that this exemption does potentially give
religious schools a substantial edge over secular schools, and thus lets
them spread their religious ideologies more easily than secular schools
can spread their secular ideologies.  Am I mistaken on this factually,
or do you think that this just doesn't matter?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Derek Gaubatz
> Sent: Thursday, March 31, 2005 9:27 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religion-only accommodation question
> 
> 
> There may be good reasons to find the Leonard Law to violate 
> the free speech or association rights of private secular 
> schools, but it doesn't strike me that an Establishment 
> Clause violation is one of them.  The argument seems to rest 
> on the same faulty assumption underlying the 6th Circuit's 
> hopefully soon to be discredited rationale in Cutter, i.e., 
> that accommodations that lift government-imposed burdens on 
> religious exercise must march in lockstep with accommodations 
> of other secular rights. 
> 
> Derek L. Gaubatz
> Director of Litigation
> The Becket Fund for Religious Liberty
> 1350 Connecticut Avenue, NW, Suite 605
> Washington DC 20036
> 202 349-7208 (phone)
> 202 955-0090 (fax)
>  
> 
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E. 
> Brownstein
> Sent: Thursday, March 31, 2005 11:57 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Religion-only accommodation question
> 
> Yes. I have been arguing that the Leonard Law is 
> unconstitutional since it 
> was enacted. If it doesn't violate the Establishment Clause 
> under Texas 
> Monthly, it should be struck down as unconstitutional viewpoint 
> discrimination in favor of religion and a violation of the 
> Free Speech 
> Clause under Good News Club. There is also a fairly 
> persuasive argument 
> that all private schools are expressive associations under 
> Dale. If the Boy 
> Scouts have a freedom of association right to choose their 
> members based on 
> conduct outside of Scout activities, they surely have a free 
> speech and 
> freedom of association right to prohibit Scouts from speaking 
> in ways that 
> violate the Scouts' moral standards during Scout activities. 
> Why doesn't a 
> private school have a similar right to teach and demand 
> adherence to moral 
> standards by students participating in school activities?
> 
> Alan Brownstein
> UC Davis
> 
> 
> 
> 
> 
> At 11:15 PM 3/30/2005 -0800, you wrote:
> > California law essentially bars private high schools from 
> >discipling pupils for the content of their speech, unless the speech 
> >falls within an exception to First Amendment protection.  The law, 
> >however, "does not apply to any [institution] that is 
> controlled by a 
> >relig

RE: Religion-only accommodation question

[Derek Gaubatz]

There may be good reasons to find the Leonard Law to violate the free
speech or association rights of private secular schools, but it doesn't
strike me that an Establishment Clause violation is one of them.  The
argument seems to rest on the same faulty assumption underlying the 6th
Circuit's hopefully soon to be discredited rationale in Cutter, i.e.,
that accommodations that lift government-imposed burdens on religious
exercise must march in lockstep with accommodations of other secular
rights. 

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Thursday, March 31, 2005 11:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Religion-only accommodation question

Yes. I have been arguing that the Leonard Law is unconstitutional since
it 
was enacted. If it doesn't violate the Establishment Clause under Texas 
Monthly, it should be struck down as unconstitutional viewpoint 
discrimination in favor of religion and a violation of the Free Speech 
Clause under Good News Club. There is also a fairly persuasive argument 
that all private schools are expressive associations under Dale. If the
Boy 
Scouts have a freedom of association right to choose their members based
on 
conduct outside of Scout activities, they surely have a free speech and 
freedom of association right to prohibit Scouts from speaking in ways
that 
violate the Scouts' moral standards during Scout activities. Why doesn't
a 
private school have a similar right to teach and demand adherence to
moral 
standards by students participating in school activities?

Alan Brownstein
UC Davis





At 11:15 PM 3/30/2005 -0800, you wrote:
> California law essentially bars private high schools from
>discipling pupils for the content of their speech, unless the speech
>falls within an exception to First Amendment protection.  The law,
>however, "does not apply to any [institution] that is controlled by a
>religious organization, to the extent that the application of this
>section would not be consistent with the religious tenets of the
>organization."
>
> It strikes me that some parents would like to send their kids
to
>a high school that has some kinds of civility codes (either because
they
>want their own children to be subject to such codes, or because they
>think their children's education would be better if the children around
>them are subject to the codes).  Under the California law, though,
>that's not an option, even if they send their kids to private school --
>unless they send their kids to a private religious school whose
>religious tenets require the imposition of such a speech code.  It
seems
>to me quite possible that this would give such religious schools a
>legally enforced edge over secular schools:  They can offer parents an
>educational environment for their children that secular schools cannot.
>
> Is the religious exemption therefore unconstitutional?
>
> Eugene
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RE: State Free Exercise Clauses

[Derek Gaubatz]

Re broader protection than Smith, see, Humphrey v. Lane, 728 N.E.2d 1039
(Ohio 2000); In re Browning, 476 S.E.2d 465 (N.C. 1996); State v.
Miller, 549 N.W.2d 235 (Wis. 1996); Attorney Gen. v. Desilets, 636
N.E.2d 233 (Mass. 1994); Swanner v. Anchorage Equal Rights Comm'n, 874
P.2d 274 (Alaska 1994); Rourke v. N.Y. State Dep't of Corr. Servs., 603
N.Y.S.2d 647 (N.Y. Sup. Ct. 1993), aff'd, 615 N.Y.S.2d 470 (N.Y. App.
Div. 1994); Rupert v. City of Portland, 605 A.2d 63 (Me. 1992); St.
John's Lutheran Church v. State Comp. Ins. Fund, 830 P.2d 1271 (Mont.
1992); First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174
(Wash. 1992); State v. Evans, 796 P.2d 178 (Kan.1990); State v.
Hershberger, 462 N.W.2d 393 (Minn. 1990).

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Monday, February 28, 2005 12:25 PM
To: Law & Religion issues for Law Academics
Subject: State Free Exercise Clauses

Apropos Andy's question, I thought I'd ask:  What states have
read their state Free Exercise Clauses as providing strict scrutiny, or
something like it, *after* Smith?  My list is Alaska, Washington,
Minnesota, Wisconin, Indiana, Ohio, Vermont, and Massachussetts.  I'll
take state court of appeals decisions, so long as they haven't been
controverted or undermined by other decisions in the same state, though
state supreme court decisions would of course be best.

Likewise, what states have explicitly held that the state
constitution tracks Smith, more or less (my list is Oregon, Tennessee,
and New Jersey)?

And what states have explicitly noted the question but declined
to reach it?  I have California, Utah, Michigan, and Maine.  Thanks,

Eugene
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RE: mini-RFRA query

[Derek Gaubatz]

see ALA. CONST. amend. 622; Arizona, see ARIZ. REV. STAT. ANN. §§ 41-1493 et 
seq. (West 2003); Connecticut, see CONN. GEN. STAT. ANN. § 52-571b (West 2003); 
Florida, see FLA .STAT. ANN. §§ 761.01-761.04 (West 2003); Idaho, see IDAHO 
CODE §§ 73-401 et seq. (Supp. 2002); Illinois, see 775 ILL. COMP. STAT. ANN. §§ 
35/1 -35/99 (West 2002); Missouri, see V.A.M.S. §§ 1.302 & 1.307 (West 2004); 
New Mexico, see N.M. STAT. ANN. §§ 28-22-1 to 28-22-5 (Michie 2002); Oklahoma, 
see OKLA. STAT. ANN. tit. 51, §251 (West 2003); Pennsylvania, 71 PA. CONS. 
STAT. ANN. 2401 et seq.; Rhode Island, see R.I. GEN. LAWS §§ 42-80.1-1 to 
42-80.1-4 (2001); South Carolina, see S.C. STAT. ANN. § 1-32-10 (Law. Co-op. 
1999); and Texas, see TEX. CIV. PRAC. & REM. CODE ANN. §§ 110.001 et seq. (West 
2003).

Derek L. Gaubatz
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
 

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Andrew Koppelman
Sent: Monday, February 28, 2005 12:13 PM
To: religionlaw@lists.ucla.edu
Subject: mini-RFRA query

Does there exist a compilation of the mini-RFRA laws that states have 
enacted in the wake of Smith v. Employment Division, or, at least, a 
collection of citations to such laws?  I'd like to look at the texts of 
those laws, if a compilation exists.

Also, do any studies exist that try to sort out the ways in which 
mini-RFRAs have been interpreted by the state courts?  Or a study of the 
interpretation of RFRA, as validly applied to federal law, in the federal 
courts?

Thanks.




Andrew Koppelman
Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:[EMAIL PROTECTED]
 


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RE: SG Application for Stay of "Hoasca Tea" Injunction

[Derek Gaubatz]

But courts determine all 
the time, and under several different constitutional provisions, what is a 
compelling government interest and whether the lrm were employed to serve that 
interest.  Why are they suddenly institutionally incompetent to do so 
when Congress directs them to apply that standard in a statute?


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Wednesday, December 08, 2004 10:19 
AMTo: [EMAIL PROTECTED]Subject: Re: SG 
Application for Stay of "Hoasca Tea" Injunction

I'm coming in in the middle here, so forgive me if I'm repeating something 
from this thread.  It seems to me two principles are getting confused 
here.  The first is the free exercise principle: whether strict scrutiny 
should be invoked because the government has permitted secular exemptions but 
not religious exemptions (Sherbert and Locke).  Obviously, a statute that 
permits religious exemptions and not secular exemptions does not fall under this 
category, and therefore RFRA's strict scrutiny command changes the 
landscape dramatically.
 
 The second is the question in RFRA whether the government has shown a 
compelling interest and the lrm.  I don't think that a government's 
compelling interest necessarily should be undermined because the law 
grants limited religious exemptions.  In any event, I think the SG is 
taking the wrong tack when it argues compelling 
interest regarding CSA rather than CSA's inclusion of 
hoasca.  Every drug is different and exemptions absolutely must be 
determined on a drug-by-drug basis.  For example, 
to argue that a peyote exemption says anything about a heroin 
exemption is absurd.  Hoasca is not peyote, and therefore the question is 
whether hoasca prohibition serves a compelling govt interest and is the lrm of 
serving that interest.  I'd say yes on both counts, but as I say in my 
findlaw column on the topic, I don't think any court is institutionally 
competent to make these determinations.  Best case to date to show that 
RFRA violates the separation of powers by placing judges in the shoes of 
legislators.
 
Marci 
 
If the government has a 
  compelling interest in theuniform enforcement of a tax law riddled with 
  exemptions, then why doesn'tit have the same presumptive compelling 
  interest in the enforcement ofeach of its many other laws?  What 
  principle distinguishes tax laws anddrug laws from any other legislation 
  enacted by a government of limitedpowers?

 
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RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County

[Derek Gaubatz]

At least 3 assumptions in Marty's post below seem 
problematic to me:
 
First, the assumption that one must conclude that the school 
officially endorses the content of the annoucement because it looked it over 
first before allowing it to be distributed.  Why is this so?  For 
example, it's entirely possible for the school to have content-neutral standards 
of review for the announcements.  If that is the case, why should a 
reader of any annoucement comes home assume the school is in favor of whatever 
it is the announcement is pushing.  Should I assume that in an annoucement 
about an Earth Day celebration that the school is endorsing all of the 
speakers at that celebration?   
 
Second, the assumption that so long as 
religious speech is treated as badly as at least one other viewpoint (whether 
it's political or something else) then there is no viewpoint 
discrimination.  Instead of concluding there is no viewpoint 
discrimination, the more logical answer is that both excluded speakers should 
have a claim under the Free Speech Clause.  It may be that there are 
compelling interests that justify excluding a political viewpoint that do not 
justify excluding the religious one, but the government shouldn't be off the 
hook just because it's discrimination extends to 2 viewpoints instead of just 
one.  
 
Finally, with regard to the point that "if “directly related” 
simply means the sort of speech that school teachers themselves would be 
permitted to make to their students – which is how the criterion appears to 
have been understood in practice -- then these school-approved advertisements 
satisfy, at least for the most part, the criterion in a way that invitation to 
bible study would not"   That doesn't actually seem to be the 
way the school interpreted its policy.  But even if it were, surely if 
a school had a release time program it could make an annoucement about 
that.  It seems to me that allowing a flyer from an outside organization 
about a Bible study doesn't imply any greater government endorsement of 
religion than an annoucement of a release time 
program. 
 

Derek L. Gaubatz
Senior Legal Counsel
The Becket Fund for Religious 
Liberty
1350 Connecticut Avenue, N.W., Suite 
605
Washington D.C. 20036
202 955-0095 phone
202 955-0090 
fax


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty 
LedermanSent: Thursday, July 01, 2004 10:07 AMTo: Law 
& Religion issues for Law AcademicsSubject: Child Evangelism 
Fellowship v. Montgomery County -- the View fromMontgomery 
County


Sorry:  The font on that 
post came through garbled for some reason.  Here it is again.  
 
I agree with Eugene that there’s 
not much of a “compelled speech” problem here, for reasons the Court explained 
in Southworth.  (Of course, it’s not quite as easy as 
that, because of cases such as Dale, 
Abood and United Foods, which find 
compelled-speech problems in the unlikeliest of places.  But those cases are in my view wrongly 
decided.)  To be sure, “carrying” a 
message presents more significant compelled-speech problems than does paying for 
it, see Wooley.  But in this case, the flyer would be 
contained in a sealed envelope, which is a far cry from a license plate, 
whatever one thinks of Wooley.  For similar reasons, I’m not terribly 
persuaded by Judge Michael’s dissenting view that permitting insertion of Good 
News Club flyers would coerce students to engage in religious activity, as in Lee v. Weisman.
 
Nevertheless, I think the case is 
not as clear-cut as it appears at first; but the reasons why that is so are 
obscured by the (questionable) way in which the case was litigated.  (Disclosure:  I live in Montgomery County and my 
children are students in the School District; but until reading the decision 
today I had very little inkling of the facts of the case or how it was being 
litigated.)
 
The court finds without much 
effort that the School District’s exclusion of the Good News Club flyers would 
be a Free Speech Clause violation if there were no Establishment Clause bar to 
distributing the flyers.  This 
conclusion is not surprising, because the School District conceded that 
its exclusion of the flyers – which would announce Good News Club meetings -- 
was unconstitutional viewpoint discrimination “under controlling 
precedent.”  Slip op. at 7.  That concession was probably 
ill-advised.  I think the Free 
Speech Clause question is much more complicated than the District and the court 
assumed it to be, wholly apart from Wooley and any issue of compelled 
speech.  Just as did the Supreme 
Court in Rosenberger, the court in 
this case incorrectly assumed 
that the school permits virtually all types of nonprofit speech (except 
religious speech), including most any controversial _expression_, to be conveyed 
to students and parents in the relevant “program.”  That assumption is mistaken.
 
The School District policy in 
question does not permit all nonprofit groups to 
distribute

RE: Michigan Muslim decision

[Derek Gaubatz]

Sounds like the slippery slope consequences you imagine 
would simply result in more speech.  Hardly troubling, unless one has 
something to fear from hearing different ideas expressed.
 

Derek L. Gaubatz
Senior Legal Counsel
The Becket Fund for Religious 
Liberty
1350 Connecticut Avenue, N.W., Suite 
605
Washington D.C. 20036
202 955-0095 phone
202 955-0090 
fax


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Friday, May 14, 2004 12:23 
AMTo: Law & Religion issues for Law AcademicsSubject: 
Re: Michigan Muslim decision
Thanks.  But suppose the permission to the muezzins 
was indeed an exemption from the noise ordinance, and suppose some  mean 
old atheists, out of sheer spitefulness, in retaliation for the loss of peace 
and quiet, insisted on an exemption from the noise ordinance for chanted calls 
to reason, enlightenment, progress, and moderation?  Five times a day, from 
a huge donated tower to be built especially for the purpose?   And 
suppose ~ church bells being insufficiently verbal and expressive ~ missionizing 
Christian bible-beaters insisted on an exemption  from the noise ordinance 
so that five times a day they could harangue us about brimstone and hellfire 
from a fleet of donated trucks with megaphones?  Is it possible given the 
Capitol Square case that we can preserve peace and quiet?LouiseAt 
02:10 PM 5/13/04, Doug Laycock wrote:
    This is private speech; 
  failure to regulate is not establishment.  The imam at least claims this 
  is not even an exemption from some noise ordinance or the like; the 
  loudspeaker was already legal and the amendment is clarifying.  If he is 
  wrong about that and it is an exemption, of course the exemption would have to 
  be sect neutral.  I think it should have to be neutral as between 
  religious and political speech.  But it does not have to be neutral as 
  between speech and other sources of 
  noise.    And of course the 
  city does not have to broadcast Christian or Jewish messages; it need only 
  refrain from interfering with them.  And I would be surprised if it has 
  interfered with them.  Church bells are designed to be widely heard for 
  the same purpose, they were not illegal in Hamtramck.At 01:33 PM 
  5/13/2004 -0500, Louise Weinberg wrote:
  I find the below message somewhat 
disturbing.  The thought of having amplified Muezzins five times a day 
calling to prayers in my own residential community is disturbing. My 
neighbors and I would be forced repeatedly to talk over or stop our ears 
against intrusive chanted messages from a faith we do not share.  I 
fail to see why a town government in America, even one in which a majority 
of the population is Moslem, should be allowed to impose religious harangues 
on the minority of its residents who happen not to be Moslems.  It is 
true that these harangues are customary in Islamic traditions, but it is the 
prayers that are a pillar of Islam, not the calls to prayer.  Once 
having made such an "accommodation," does the town then have to broadcast 
immediately before or after each muezzin call the Hebrew chant, "Hear O 
Israel, the Lord thy God, the Lord is one?"  Will an amplified shofar 
have to be blown five times a day?  How about The Lord's Prayer?  
And what noise will accommodate the atheists?  Unless the atheists are 
allowed to summon their listeners to reason at least five times a day, why 
isn't all this holy racket an establishment of religion?At 
08:07 AM 5/13/04, Stuart BUCK wrote:
An interesting law out of 
  Hamtramck, Michigan.  It apparently amends the noise ordinance there 
  to allow loudspeakers to broadcast Muslim calls to prayer 5 times per 
  day.  Story here:http://www.latimes.com/news/nationworld/nation/la-na-mosque6may06,1,4014143.story?coll=la-headlines-nationor 
  here:http://www.freep.com/news/locway/call8_20040508.htmBest,Stuart 
  Buck_Best 
  Restaurant Giveaway Ever! Vote for your favorites for a chance to win $1 
  million! http://local.msn.com/special/giveaway.asp___To 
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post, send message to [EMAIL PROTECTED]To subscribe, 
unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawDouglas 
  LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, 
  TX  78705    512-232-1341 
  (voice)    512-471-6988 
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RE: Difficult Issues In Class

[Derek Gaubatz]

Professor Lipkin suggests that we should 
be concerned that the individualized exceptions doctrine, though 
unlikely to create problems in practice, has a theoretical ability to swallow up 
the general rule.  It seems to me, however, that legal rules 
regulating behavior (particularly those that place limits on 
fundamental rights like free exercise to religion) work better when they do 
take reality into account, rather than trying to address theoretical or 
conceptual problems that do not actually reflect reality.  The Smith 
rule suffers from exactly this problem.  Justice Scalia posited a 
theoretical world in which religious exceptions from so-called generally 
applicable laws would run amok and create 
an every-man-is-a-law-unto-himself state of anarchy.  The fact 
that an empirical study of our nation's more robust accommodation of 
religious liberty prior to Smith would not bear out Scalia's theoretical fears 
unfortunately did not stop the Court from dramatically narrowing the scope of 
protections for state intrusions on private religious exercise.  

 
 -Original Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]On Behalf Of 
[EMAIL PROTECTED]Sent: Tuesday, February 10, 2004 2:48 
PMTo: [EMAIL PROTECTED]Subject: Re: Difficult 
Issues In Class

  
  
  In a message dated 2/10/2004 1:35:03 PM Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  and a student feels that he can't write one oranother, 
because that view is so evil that his religion tells him that hecan't 
defend it even in a playacting context.  
   This tends to 
  suggest that no rule is possible here because this problem can be 
  generalized, at least in principle, to any conceivable activity or issue. A 
  particular student refuses to write a majority and dissenting opinion about 
  abortion because her religion (or secular creed) tells her the topic 
  is too evil. Another student won't write about marriage because his 
  religion (or secular creed)  tells him the topic is too evil or too 
  precious to write about on an exam. (That this particular example does 
  not usually arise is a perfectly fortuitous or contingent feature of our 
  circumstances, and tells us nothing conceptually about how to construct a 
  consistent principle of individualized exemptions). 
   
          In theory, requests for exemptions 
  may continue until no exams are possible. Of course, in practice, this is 
  unlikely in the extreme.  But in theory, any individualized exemption 
  doctrine must deal with all possible reasons (issues) that any (and all) 
  students can raise. The fact that in practice we typically deal with a 
  relatively small range of requests for exemptions does not affect the 
  conceptual problem of figuring out a way of formulating a principle of 
  individualized exemptions that does not lead to the cancellation of the 
  activity from which exemptions were sought in the first 
place. 
   
  BobbyRobert Justin LipkinProfessor 
  of LawWidener University School of 
LawDelaware
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RE: F--- The Draft

[Derek Gaubatz]

I would imagine that some Christian believers would respond by pointing to the 
Scriptures.  See, e.g., Ephesians 4:29  "Do not let any unwholesome talk come out of 
your mouths, but only what is helpful for building others up according to their needs, 
that it may benefit those who listen"; Ephesians 5:4  "Nor should there be obscenity, 
foolish talk or coarse joking, which are out of place, but rather thanksgiving." 

In any event, it's for the religious adherent to decide whether saying the word is 
objectionable to their belief system, not for the state, as in Axson-Flynn, to say 
that the adherent should simply get over it.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Robert O'Brien
Sent: Monday, February 09, 2004 3:27 PM
To: Law & Religion issues for Law Academics
Subject: Re: F--- The Draft


I have no idea what using the word "fuck" has to do with religion.

Bob O'Brien


- Original Message - 
From: "Rick Duncan" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>
Sent: Monday, February 09, 2004 2:37 PM
Subject: F--- The Draft


> Another observation about how far we have gone over
> the cliff: We have gone from cases deciding whether a
> person could be punished for saying "f--- the draft"
> to cases deciding whether a deeply religious student
> can be punished for refusing to say the "F" word.
> 
> Is this cultural progress or what?
> 
> Rick Duncan
> 


NTMail K12 - the Mail Server for Education
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