RE: Marriage -- the Alito dissent

[Esenberg, Richard]

The first sentence of my post got cobbed up - perhaps by my habit of editing 
what I say after I write it. So you can reject what I am about to say on that 
basis.

I certainly believe that one can argue "for" the morality of same sex 
relationships. In fact, I don't think there is anything immoral about them - as 
I have repeatedly argued in published statements elsewhere. My intended point 
is that the notion that opposition to same sex marriage - even if based on 
traditional arguments about the morality of homosexual relationships - cannot 
be dismissed as irrational or hateful.

I meant to respond to Professor Hamilton's argument that the only argument in 
support of DOMA could be sectarian. I don't think so.
________
From: Esenberg, Richard
Sent: Sunday, June 30, 2013 8:38 PM
To: Law & Religion issues for Law Academics; hamilto...@aol.com
Cc: conlawp...@lists.ucla.edu
Subject: RE: Marriage -- the Alito dissent

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com
Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com<mailto:hamilto...@aol.com> 
wrote:

I am not sure what Paul's reservation is with the concept that for First 
Amendment purposes, a belief is the belief being held right now by the 
believer, regardless of tradition or history.  I had thought the courts had 
settled on that concept, and its adjunct theory, which is that no court
can tell a religious believer that their belief is not religious or that it is 
not true.

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RE: Marriage -- the Alito dissent

[Esenberg, Richard]

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com
Cc: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com 
wrote:

I am not sure what Paul's reservation is with the concept that for First 
Amendment purposes, a belief is the belief being held right now by the 
believer, regardless of tradition or history.  I had thought the courts had 
settled on that concept, and its adjunct theory, which is that no court
can tell a religious believer that their belief is not religious or that it is 
not true.

___
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RE: Catholic University sued about prayer rooms for Muslims

[Esenberg, Richard]

Isn't there a strong tradition of aniconism in Islam. You're not supposed to 
depict Allah, Muhammed or the lesser prophets?


Richard M. Esenberg
President & General Counsel
Wisconsin Institute for Law & Liberty
225 E. Mason Street, Suite 300
Milwaukee, Wisconsin 53202
414-727-WILL (9455)
414-727-6367 (direct)
414-213-3957 (mobile)
r...@will-law.org
Adunct Professor of Law
Marquette University Law School
1215 W. Michigan Street
Milwaukee, Wisconsin 5202
414-288-6908
richard.esenb...@marquette.edu




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul  
[paul.finkel...@albanylaw.edu]
Sent: Thursday, November 03, 2011 6:30 AM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic University sued about prayer rooms for Muslims

Since Jesus is a prophet in the Muslim faith, I wonder how serious the 
complaint is.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Wednesday, November 02, 2011 11:14 PM
To: religionlaw@lists.ucla.edu
Subject: Catholic University sued about prayer rooms for Muslims

I'm intrigued by this story.  Apparently, in Washington DC, it may turn out to 
be a human rights violation for Catholic University to be pervasively Catholic.

http://radio.foxnews.com/toddstarnes/top-stories/muslims-want-catholic-school-to-provide-room-without-crosses.html

Is there some perspective from the view of an impartial scholar where this is 
NOT patently absurd?

Brad Pardee
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RE: Augusta State University student sues school over requirement that she un...

[Esenberg, Richard]

But we all have beliefs that we feel others should act in accordance with. Some 
are widely accepted, others are not. You may believe that it is wrong to 
divorce your spouse when there are small children in the home simply because 
you are unhappy. I may believe that it is wrong to operate a business to 
maximize profits at the expense of one's employees. We both believe that 
persons who act inconsistently with our beliefs have done something immoral. 
Are we now ineligible to be counselors, lawyers or doctors?


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Wednesday, July 28, 2010 2:16 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Augusta State University student sues school over requirement that 
she un...

How can someone with that belief be capable of providing competent 
psychological counseling to anyone other than a fellow believer?  It is 
particularly troubling that someone would defend the right of a person to be a 
psychological counselor if one believes that others should act in accordance 
with the counselor's beliefs?

Marci


In a message dated 7/28/2010 1:10:14 P.M. Eastern Daylight Time, 
aebrownst...@ucdavis.edu writes:
In fact, the "standard" that she is said to be violating is her subjective 
belief that her moral views are true. She was apparently told that it is 
unethical for her to be " not truly accepting that others can have different 
beliefs and values that are equally valid as your own" and for her to "think 
certain people should act in accordance with your moral values, and/or that 
your beliefs are in some way superior to those of others." (emphasis in 
original)

___
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RE: Augusta State University student sues school over requirementthat she und...

[Esenberg, Richard]

Marci's post is inconsistent with what we know of the case. Facts matter and 
the facts in this case call into question whether this is a neutral and 
generally applicable rule. The University is telling Jen Keeton that she can't 
believe what she believes. She must reject the notion that her religious 
beliefs are true and applicable to persons others. It has said that this 
rejection of what she believes today must be "fundamental" and not 
"superficial."

This seems to be targeted at religious beliefs in a way that Smith did not 
contemplate. I rather doubt that this rule of relativity is applied across the 
board. I don't think that the university would order remediation for a person 
who believes that racism is immoral and announced her refusal to affirm affirm 
racist beliefs.



I rather doubt that this rule of relativity is applied across the board. I 
don't think that the university would order remediation for a person who 
believes that racism is immoral and announced her refusal to affirm affirm 
racist beliefs.



More than that, she seems to be subject to remediation because she has 
expressed her views outside of the counseling context. So we have free speech, 
free exercise and equal protectuion problems.



Nothing in the facts suggests that she would recommend "homosexuality 
reorientation." Nothing in the ACA Code of Ethics requires counselors to hold 
any particular set of moral beliefs. Maybe the university documents and e-mails 
cited in the brief in support of her motion for a preliminary injunction were 
fabricated. Maybe other facts will put them in a different context. Perhaps the 
university can challenge Jen Keeton's statements that she can respect the 
dignity of her clients and would not impose her beliefs upon them.



But from what I can see, this is an egregious case and unless one is prepared 
to say that the First Amendment simply does not apply to persons who subscribe 
to the view of homosexuality historically held by the Abrahamic faiths or to 
the expression of that view, the University ought to lose.



Rick Esenberg

Marquette University Law School






From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Wednesday, July 28, 2010 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Augusta State University student sues school over requirementthat 
she und...

First Amendment doctrine does not require such accommodation to neutral, 
generally applicable rules.  That is why the public school hair length case had 
to be instituted under the Texas RFRA.  In fact, Will's reasoning is an attack 
on all accreditation standards that might have some effect on a religious 
believer.  Their very value, though, rests on their neutral, generally 
applicable quality.  They are the "Good Housekeeping Seal of Approval" for the 
public.

So how does one deal with such an accommodation and still protect the public 
from harm?  Require the believer to have a sign in their offices and on their 
receipts (or require an oral recitation of this to each patient) that says: "If 
you are homosexual, the usual professional standards relevant to a homosexual 
patient will not be applied by this professional"?  It would be cruel to permit 
a counselor to hang a sign that holds him or her out as someone who follows 
standards of care, but when a homosexual shows up, the advisor chooses to 
suggest "homosexuality re-orientation" because of life problems the person is 
facing.


On the hair length issue, the list seemed to believe that it is a bad thing for 
a school to have a hair length limit, on the assumption I suppose that it is 
never important to impose such limits?  What about those schools in the 
inner-city with problems with some students hiding contraband (drugs, weapons, 
etc) under the hair in order to bring into the school? (Classic practice of 
both students and prisoners, right?)  Does anyone object to a hair-length 
limitation in those schools?  On Doug's reasoning, it is still "oppression," 
right?

Marci


Doug Laycock wrote:

Shameless plug:  Why Voting With Your Feet Is No Substitute for Constitutional 
Rights, 32 Harv. J. L. & Pub. Pol'y 29 (2009).

People move for all sorts of reasons, and they should not have to subordinate 
all those other reasons to a search for a jurisdiction that will not oppress 
them.





In a message dated 7/28/2010 10:42:50 A.M. Eastern Daylight Time, 
willes...@yahoo.com writes:
I think Marci misses the point of my example regarding medical schools and 
de-selection of certain groups.  The point has to do with the way in which the 
standards are set and whether "conscientous objection" exemptions are necessary 
(or required) in order to not have an adverse impact upon religious believers.  
The Fifth Circuit held that an exemption was necessary for a Native American to 
wear long hair in school.  It seems to me the only difference 

RE: Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views

[Esenberg, Richard]

Perhaps there are facts not reported in the article, but it's not clear to me 
how she has refused "to implement the standards of her profession" unless the 
standards of the profession require her not to believe what she does about 
homosexuality or, if she does, never to express those beliefs.



Perhaps the "standard" is the idea that she not express her personal views 
about the morality of a client's behavior while counseling the client. Putting 
aside whether that really is - or ought to be - a standard of the counseling 
profession, there is nothing in the report suggesting that she would do so. 
Based on the brief filed in support of her motion for a preliminary 
injunction,
 the student has said that she understands the "difference between personal 
beliefs and how a counseling situation should be handled and "the need to 
reflect clients’ goals and to allow them to work toward their own solutions 
..." She says that she would not impose her views on her clients, although she 
also says that if she is asked "to affirm" conduct that she believes to be 
immoral (mentioning homosexuality and the decision to have an abortion), she 
would not.



In fact, the "standard" that she is said to be violating is her subjective 
belief that her moral views are true. She was apparently told that it is 
unethical for her to be " not truly accepting that others can have different 
beliefs and values that are equally valid as your own" and for her to "think 
certain people should act in accordance with your moral values, and/or that 
your beliefs are in some way superior to those of others." (emphasis in 
original)



It seems quite clear from the materials cited in the brief that her 
continuation in the program required her to change her beliefs. A public 
university seems to be taking the position that a student must sincerely 
embrace a form of moral relativism in order to remain in a graduate program.





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Finkelman [paul.finkel...@yahoo.com]
Sent: Wednesday, July 28, 2010 12:01 AM
To: Law & Religion issues for Law Academics
Subject: Re: Augusta State University student sues school over requirement that 
she undergo "remediation" due to her religious views

It would seem to me that "Christian ethical convictoins" would require her to 
"do unto others" as she would want them to do unto her, and thus perhaps 
respect their values and act as a responsible therapist.

I wonder, suppose she did not believe in blood transfusion and was in a medical 
school?  Would it be legitimate not to give her a degree because she was not 
willing to apply techniquest of modern medicine to her patients.  Suppose she 
lectured her patients before surgery on how wrong they were for demaning a 
transfusion during surgery?

In otherwords, if she is trained to be a professional in the care field, can 
she be allowed to take her degree if she refuses to accept the standards of the 
profession.  This is not about her beliefs -- or even her actions.  No one is 
asking her to participate in a same sex relationship.  This seesm to me to be 
about her refusal to implement the standards of her profession because she does 
not like the behavior of some people.

There is also of course some equal protection issues here.  I would guess she 
is against heavy drinking, drug use, and non-marital sex.  If she insisting on 
implementing her religious values when treating patients who might behave in 
those ways?  What about people who don't obey the sabbath (or at least her 
sabbath)?  Or those who don't accept the teachings of Christianity?  How far, 
in other words, does this go, or is she only dragging out her religious values 
when dealing with gay people?



Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu

www.paulfinkelman.com

--- On Wed, 7/28/10, Brad Pardee  wrote:

From: Brad Pardee 
Subject: Augusta State University student sues school over requirement that she 
undergo "remediation" due to her religious views
To: religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 12:45 AM


Jennifer Keeton is a student at Augusta State University , pursuing a graduate 
degree in counseling.  In line with her religious beliefs, she holds to the 
traditional view regarding homosexuality.  She has expressed those views in 
classroom discussions as well as in written assignment.  In response, the 
University has informed her that she must complete a remediation program or 
else she will be expelled from the program.  According to the complaint, the 
“faculty have promised to expel Miss Keeton from the graduate Counselor 
Education Program not because of poor academic showing or demonstrated 
deficiencies in c

RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

[Esenberg, Richard]

I'm not sure why, absent some judgment about the impropriety of the ministerial 
exemption, one would think that employees and potential employees are somehow 
entitled to disclosure about the way in which constitutional doctrine might 
frustrate what they  (perhaps erroneously) to be their statutory rights. Why, 
indeed, not require reporters to tell persons who may qualify as public 
officials or figures about the way in which constitutional doctrine may impair 
what they might otherwise regard to be their legal protection from defamation? 
Even if we are especially concerned about employees, why not require that they 
be told, for example, that the presumed right of white employees to be free of 
race based decision-making could be compromised should circumstances justify 
race conscious remedies under current doctrine?

One argument might be that, if we recognize a ministerial exception, religious 
organizations are being granted some unique exemption from generally applicable 
laws. Putting apart whether that could ever be an accurate description of the 
current constitutional landscape, it is not clearly so. Associational rights, 
such as those of the Boy Scouts, might also warrant an exemption from otherwise 
applicable discrimination laws.

Going beyond that, why does the potential frustration of the expectations of 
employees stemming from a failure to appreciate the law of free exercise or of 
legislative solicitude for religious organizations deserve special attention?  
Most of us who don't hail from social circles riddled with lawyers know, for 
example,  that the concept of at-will employment comes as a shock to the 
average man or woman on the street. Most have no idea that the right of free 
speech that they understand to exist does not  protect them from private 
employers.

In fact, it is not at all clear that persons who accept positions that might 
qualify as "ministerial" are  likely to be ignorant of the ways in which free 
exercise might be thought to justify exemption from certain legal requirements 
in some unique way that justifies qualifying statutory or constitutional rights 
on disclosure. They may very well be more, rather than less,  likely to know 
the legal landscape.

To place a unique burden on religious organizations raises questions of 
government neutrality as a matter of policy, free exercise and establishment in 
the sense of avoiding both endorsement and disapproval of religion.

Rick Esenberg
Marquette University Law School
Eckstein Hall 253B
1215 W. Michigan Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975
Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715
Blogs: www.sharkandshepherd.blogspot.com
 http://law.marquette.edu/facultyblog/
You can access my papers at: 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Monday, July 19, 2010 8:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

Friends -- with respect to Marci's suggestion that religious entities be 
required to inform people in ministerial positions about the fact that such 
entities have a constitutional right to hire-and-fire that is not subject to 
many employment-law constraints . . .   it seems to me that people often suffer 
what I think Marci and I would agree are "harms" as a result of others' 
exercise of constitutional rights (in particular, the freedom of speech).  That 
is, the Constitution does have the effect (and, it seems to me, *was* intended 
to have the effect) of insulating *some* harms (e.g., the pain caused by 
offensive speech) caused from correction or prevention by the government.

Do we think, though, that, as a general matter, rights holders should have to 
inform those with whom they are in relationships and who might be harmed by the 
exercise of the rights holders' rights that the rights might, in fact, be 
exercised?  Should a reporter, for example, have to warn anyone whom she 
interviews about the harm-causing-potential of the rule in New York Times v. 
Sullivan?

I agree, for what it's worth, that it makes good sense for attorneys 
representing churches and religious institutions to advise their clients to 
inform those in ministerial positions (that is, in any position that the church 
regards as ministerial) about their (the institutions') religious liberty.  But 
I'm wondering if Marci's proposed warning requirement applies only to religious 
employers (and if so, why?  Because they are employers?  Because they are 
religious?) or to all whose rights-exercise might cause "harm"?

 Best,

r


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

574-631-6981 (w)
574-276-2252 (cell)

SSRN page

RE: A real-life on-campus example

[Esenberg, Richard]

Bob Jones tells us nothing about whether CLS associational rights would protect 
it from an all comers policy imposed through, say, the application of 
discrimination laws. Within the public forum context, however, it is not clear 
to me that permitting the government to forbid status discrimination means that 
it may also forbid viewpoint discrimination. CLS is not claiming the right to 
engage in status discrimination and I think we ought to pause before we elide 
the distinction.


From: hamilto...@aol.com [hamilto...@aol.com]
Sent: Thursday, May 13, 2010 10:01 AM
To: Esenberg, Richard; Law & Religion issues for LawAcademics; Rick Duncan
Subject: Re: A real-life on-campus example

Actually, it is not true that the government cannot or does not impose 
all-comer human rights policies on religions expecting government benefits 
outside Hastings.  That is the core of the Bob Jones Univ case.   That is why I 
raised race discrimination earlier

Marci

Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Esenberg, Richard" 
Date: Thu, 13 May 2010 14:24:57
To: hamilto...@aol.com; Law & Religion issues for 
LawAcademics; Rick Duncan
Subject: RE: A real-life on-campus example

Marci wrote:

Of course the marketplace works as I described it especially in the US. Groups 
thrive and shrivel and respond to and interact with the culture and if they 
cannot adapt to broadbased moral and social changes by changing their beliefs 
and practices, they become marginalized.

That restatement of your description is accurate, but your initial position 
which presumed that churches maintain open doors and are subject to the whims 
of whomever walks througn was not accurate. The market place for religion does 
not - at least not outside of Hastings - operate under government compulsion 
that churches take all comers. And, at least outside of the fading Protestant 
mainline (a phenomenom which may be instructive here), churches don't welcome 
all comers without regard to creed.

It is certainly true that religion organizations are affected by the culture 
outside. That is, in fact, the insight of post-liberal theology. Religion is 
formed in community and is porous.

But whether it is good or bad for religion to be affected by the mainstream 
culture is not, I think, a decision for the state to make - which is why the 
matter will inevitably raise constitutional questions. It seems to me that free 
exercise implies that minority religious groups are perfectly free to barricade 
the garden.

Now, of course, if you believe that it is desireable to drive religious 
organizations into some sphere defined by a set of commonly held views, you'll 
see it differently.

Rick Esenberg
Marquette

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Thursday, May 13, 2010 8:49 AM
To: Rick Duncan; Law & Religion issues for Law Academics
Subject: Re: A real-life on-campus example

As I and others have said repeatedly, there is no censorship or suppression. No 
exclusion. Those are not the facts of this case
In any event, I was speaking about the larger picture. I am interested in 
dis-covering the taboo that forbids us from discussing the obvious fact that 
religious groups are a part of the culture. And that they change. And that 
change can be good for religious groups.

Marci

Sent from my Verizon Wireless BlackBerry


From: Rick Duncan 
Date: Thu, 13 May 2010 06:34:38 -0700 (PDT)
To: ; Law & Religion issues for Law 
Academics
Subject: Re: A real-life on-campus example

Marci says: "Groups thrive and shrivel and respond to and interact with the 
culture and if they cannot adapt to broadbased moral and social changes by 
changing their beliefs and practices, they become marginalized."


I have no further questions of this witness.

Marci's admission--that groups like the CLS must "adapt to broadbased moral and 
social changes by changing their beliefs"--demonstrates the important purpose 
of freedom of expressive association.

That core purpose is that Government should not use its coercive power 
(including its power over public fora) to coerce expressive groups into 
"changing their beliefs." Government has no business telling expressive groups 
which beliefs are acceptable and which are unacceptable.

Hastings can create a public forum and allow the marketplace to decide which 
ideas are marginal and which are not. Or it can close the forum and allow only 
school-sponsored groups to meet. But it cannot engage the fiction of 
maintaining a marketplace of ideas, while at the same time using its power to 
suppress ideas and beliefs that reject established versions of the truth.

Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Linco

RE: A real-life on-campus example

[Esenberg, Richard]

Marci wrote:

Of course the marketplace works as I described it especially in the US. Groups 
thrive and shrivel and respond to and interact with the culture and if they 
cannot adapt to broadbased moral and social changes by changing their beliefs 
and practices, they become marginalized.

That restatement of your description is accurate, but your initial position 
which presumed that churches maintain open doors and are subject to the whims 
of whomever walks througn was not accurate. The market place for religion does 
not - at least not outside of Hastings - operate under government compulsion 
that churches take all comers. And, at least outside of the fading Protestant 
mainline (a phenomenom which may be instructive here), churches don't welcome 
all comers without regard to creed.

It is certainly true that religion organizations are affected by the culture 
outside. That is, in fact, the insight of post-liberal theology. Religion is 
formed in community and is porous.

But whether it is good or bad for religion to be affected by the mainstream 
culture is not, I think, a decision for the state to make - which is why the 
matter will inevitably raise constitutional questions. It seems to me that free 
exercise implies that minority religious groups are perfectly free to barricade 
the garden.

Now, of course, if you believe that it is desireable to drive religious 
organizations into some sphere defined by a set of commonly held views, you'll 
see it differently.

Rick Esenberg
Marquette

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Thursday, May 13, 2010 8:49 AM
To: Rick Duncan; Law & Religion issues for Law Academics
Subject: Re: A real-life on-campus example

As I and others have said repeatedly, there is no censorship or suppression. No 
exclusion. Those are not the facts of this case
In any event, I was speaking about the larger picture. I am interested in 
dis-covering the taboo that forbids us from discussing the obvious fact that 
religious groups are a part of the culture. And that they change. And that 
change can be good for religious groups.

Marci

Sent from my Verizon Wireless BlackBerry


From: Rick Duncan 
Date: Thu, 13 May 2010 06:34:38 -0700 (PDT)
To: ; Law & Religion issues for Law 
Academics
Subject: Re: A real-life on-campus example

Marci says: "Groups thrive and shrivel and respond to and interact with the 
culture and if they cannot adapt to broadbased moral and social changes by 
changing their beliefs and practices, they become marginalized."


I have no further questions of this witness.

Marci's admission--that groups like the CLS must "adapt to broadbased moral and 
social changes by changing their beliefs"--demonstrates the important purpose 
of freedom of expressive association.

That core purpose is that Government should not use its coercive power 
(including its power over public fora) to coerce expressive groups into 
"changing their beliefs." Government has no business telling expressive groups 
which beliefs are acceptable and which are unacceptable.

Hastings can create a public forum and allow the marketplace to decide which 
ideas are marginal and which are not. Or it can close the forum and allow only 
school-sponsored groups to meet. But it cannot engage the fiction of 
maintaining a marketplace of ideas, while at the same time using its power to 
suppress ideas and beliefs that reject established versions of the truth.

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


"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)



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RE: A real-life on-campus example

[Esenberg, Richard]

And since we are all going back and reading Elena Kagan's ruminations on the 
role of motive in assessing speech restrictions, we might ask what Hastings 
seeks to accomplish by prohibiting CLS from insisting upon its distinctive 
creed as a condition of leadership or voting membership. What work does its 
policy do in promoting the full participation of students in the life of the 
law school?

The answer, it seems, is almost none. CLS events are open to nonadherents. 
Nonadherents can form groups of their own with equal access to whatever 
benefits are on offer. Hastings never believed - until now - that organization 
around a particular set of ideas diminishes the campus citizenship or 
opportunities of those who did not share them. (In fact, it apparently allowed 
La Raza to operate with a racial requirement for voting membership and 
leadership.)

It seems clear that what Hastings want to do is to completely disassociate 
itself with CLS and to place it at a disadvantage vis-a-vis other groups. It 
wants to send a message to CLS that, to borrow Justice O'Connor's phrase, it is 
a disfavored member of the community. Hastings goal is not to create new 
opportunities for minorities but to step on a message that it does not like.

Rick Esenberg
Marquette

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Wednesday, May 12, 2010 9:11 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

So I presume Marci would have no problem with a bunch of Christians who join a 
campus Chabad group and turn it into a Christian evangelization organization. 
Or a bunch of students who favor prayer in public schools taking over a campus 
ACLU or Americans United chapter. Or a bunch of Federalists taking over a 
campus ACS chapter. After all, the Jewish students or the ACLU or AU or ACS 
students could just form other groups. But that approach is deeply unfaithful 
to the core concept of expressive associational freedom. It is sad that Marci, 
and the educational establishment (united as it seems to be against CLS in CLS 
v. Martinez), would embrace such a crude majoritarian approach.

Mark Scarberry
Pepperdine


From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com
Sent: Wed 5/12/2010 6:51 PM
To: religionlaw@lists.ucla.edu
Subject: Re: A real-life on-campus example

Here is my question-- why would anyone care about a "takeover"?  Wouldn't that 
just mean that a majority of the members voted in a different slate of leaders? 
 It's not like a dissenter could come in and singlehandedly takeover a group, 
is it?  They have to be chosen by a majority.  Then if the group takes a turn 
some don't like, the minority starts their own new group, right??  Isn't that 
what happens everyday with groups of people?  And in particular religious 
groups?  There is even a term for it -- schism.  But you don't even need a 
full-out schism to see this happen in religious groups, where a congregation 
will love a pastor but then some start disliking his/her sermons or priorities, 
and switch over to another congregation, or start a new congregation, or 
agitate for a new pastor.  Isn't that the American way of a marketplace in 
ideas and religion?

So why does CLS or any other group need protection from the possibility that 
"outsiders" will take them over?  If the CLS leaders are so weak that those 
with different views can take over, they can form a whole new group.  So just 
how does the all-comers rule disadvantage CLS?  I think this need for 
protection against takeovers is just a pretense for the intent to discriminate 
on the basis of sexual orientation.


Marci



In a message dated 5/12/2010 9:21:14 P.M. Eastern Daylight Time, 
mark.scarbe...@pepperdine.edu writes:
In any event, I think those who argue that an all comers rule is OK because 
takeovers are unlikely would in effect be relying on a pattern or practice of 
groups choosing leaders based on their views. Usually a pattern or practice is 
somewhat equivalent to a rule, where antidiscrimination principles are at 
stake. Thus in a sense CLS is being denied benefits in part because of its 
honesty in admitting what its members will do, and the all comers rule is 
supported because groups will in fact engage in discrimination, though perhaps 
not by way of formal rules.

Mark Scarberry
Pepperdine


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RE: A real-life on-campus example

[Esenberg, Richard]

The right of expressive association is not a demand for government protection 
in the market place of ideas or a demand for government support. It is, rather, 
a shield against government compulsion, i.e., the demand that an organization 
not define itself by adherance to any particular creed or that it engage in 
practices inconsistent with its expressive message or core beliefs. While in 
the public forum context, it might involve access to a government benefit but 
that is a function of the government's decision to establish a forum and the 
(quite reasonble rule) that, if it chooses to do so, it may not discriminate on 
the basis of viewpoint.

This doesn't immunize religious organizations from the market place of ideas 
which, in any event, does not work as she thinks it does. Churches regularly 
impose creedal requirements on clergy, leaders and members. If congregants 
don't like it, they leave much as those who don't like CLS policy could leave 
as well.

The problem with "takeovers" - whether effected through rules of a public forum 
or antidiscrimination laws - is that they would undermine the capacity of 
minority or, more specifically, unpopular groups to associate for a particular 
expressive purpose because, as soon as they choose to combine, they must be 
prepared, in this context, to permit others to come in and not simply expose 
their creed to the market place of ideas (that happens in all events) but to 
vote it out.


Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Thursday, May 13, 2010 7:09 AM
To: Law & Religion issues for Law Academics
Subject: Re: A real-life on-campus example

It is not majoritarian but rather the marketplace. Expressive association is a 
new right with little justification in history and I am beginning to think a 
large step toward government sponsored Balkanization
Does the government have an obligation to make sure dwindling religions remain 
viable. I would say absolutely not. But apparently Mark would disagree?

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Scarberry, Mark" 
Date: Wed, 12 May 2010 19:11:04
To: 
Subject: RE: A real-life on-campus example

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RE: Factual Clarification re CLS

[Esenberg, Richard]

Quite apart from Justice Breyer's view of the matter, the all comers policy 
does seem fantastical since it wasn't cited by Hastings until after the matter 
was in suit and recognized student organizations had all sorts of limitations 
on who could become voting members or officers. One even had a racial 
exclusion. All were unrenarked upon by Hastings until this case came along. 
While I understand that the plaintiffs stipulated that that this was in fact at 
least one policy, it does seem like a contrivance (which doesn't mean it can be 
upheld).

It is certainly the case that lawyers ought to learn to see (or, better put, 
understand the arguments on all sides of an issue) but it seems unlikely that 
an all comers policy will serve that end. Either no dissenters will join CLS, 
i.e., the takeover will not happen either due to incentives for cooperation or 
some other reason (in which case the all comers policy serves no real purpose) 
or they will in which case the group's message will be bent to the consensus. 
While that might happen because CLS members will be persuaded to abandon their 
retrograde ways, it seems just as likely - if not more likely - that the 
group's message will be diluted by the inclusion of those who don't share it. 
The end result is not to encourage diversity of viewpoints but to drive the 
range of viewpoints to those held by a consensus of students or, perhaps more 
accurately, a consensus of those students who find the expression of divergent 
points of view to be offensive or discriminatory.

In any event, requiring CLS to accept those with differing points of view as 
voting members (as opposed to permitting them to attend and participate in CLS 
events as is already the case) is hardly the least restrictive alternatives.

Of course, the case goes beyond Rosenberger's facts, but not necessarily its 
rationale. Hastings policy discriminates against creedal groups, i.e., those 
who define themselves by the desire to adhere to and promote some particular 
viewpoint. It is certainly an extension of the law to say that Rosenberger's 
prohibition against restricting participation in a forum to viewpoints about 
temporal matters might also cover restricting participation to those who insist 
on no particular point of view, but I am not sure it is an unreasonable one.

Rick


Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of hamilto...@aol.com [hamilto...@aol.com]
Sent: Monday, May 10, 2010 4:07 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Factual Clarification re CLS

I think Rick misreads Justice Breyer's comments.  He was playing Michael, 
saying, tongue-in-cheek, that it would be "fantastical" that there would be 
this open exchange between opposing views on a law school campus.  Michael was 
resisting agreeing that such an exchange was likely or good, and so Breyer 
needed to bring him back to another view of the universe to get Michael to 
answer the question he wanted answered.  Careful reading of the transcript does 
not support Rick's interpretation.

 I think a law school has a compelling interest in having an all-comers policy, 
because it encourages lawyers to see all sides of every issue, regardless of 
their existing predispositions, which is crucial to becoming a good lawyer, no?

In any event, this case is not about whether or not this group can protect its 
associational rights to exclude certain believers and actors.  It is about 
whether a public university law school must provide certain meeting rooms and 
certain bulletin boards and money to a group that insists on exclusionary 
practices among its voting membership and leadership.  There are no rules that 
forbid the group from meeting or holding the beliefs it holds.  It is an 
attempt to move Rosenberger beyond its facts.  I thought Rosenberger was 
wrongly decided, but cleverly argued.  I think the Court needs to draw the line 
on this foolhardy doctrine before schools are required to have to pay for all 
worship services, which surely is not required by the First Amendment.  Only 
Chief Justice Roberts and Justice Alito made any real effort to defend CLS's 
position, which seems to me to bode well for Martinez.  But I would not have 
thought it possible that a majority of the Supreme Court today would !
 agree that white crosses are the standard marker for our diverse array of 
soldiers, so as usual, it will be interesting to see what happens.

Marci


In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, 
icl...@law.gwu.edu writes:
This concern about associations getting taken over by hostile forces is 
completely ungrounded -- it never happens, and for an obvious reason.  These 
kinds of fora are cooperation games -- no group is ever a majority

RE: Factual Clarification re CLS

[Esenberg, Richard]

Douglas Laycock is certainly correct that CLS' statement of belief also calls 
for heterosexual students to refrain from sex outside of marriage, but I am not 
sure that does much work in resolving the tension between the desire to 
prohibit discrimination based on a status that is tied to at least a desire to 
engage in certain forms of behavior and the assertion of an associational right 
that excludes anyone who acts on that status. Nor does it change the fact that 
CLS most certainly - and quite explicity - draws a distinction between sexual 
orientation and acting on that orientation.

In response to David Cruz' question, CLS would not extend membership to persons 
engaged in sexual activity within a same sex marriage or civil union. Its 
policy is not simply about sex outside of a marriage without regard to sexual 
orientation. CLS would exclude sexually active homosexuals even if, for 
example, Prop 8 was declared unconstitutional or improperly enacted, and those 
couples were married. CLS' statement of belief calls for members to refrain 
from "all acts of sexual conduct outside of God’s design for marriage between 
one man and one woman, which acts include fornication, adultery, and homosexual 
conduct.”  So, at the same time that it insists on sex within marriage, it 
makes clear that marriage may not be between persons of the same sex.

CLS certainly believes that its policy creates a "distinction between sexual 
orientation and sexual conduct" - although I agree that it is not simply that. 
In its letter to its Hastings requesting recognition, CLS quite forthrightly 
said that a "person who engages in homosexual conduct or adheres to the 
viewpoint that homosexual conduct is not a sin" cannot be a chapter officer or 
member. It also said that a person "who has homosexual inclinations ut does not 
engage in or affirm homosexual conduct" can be an officer or member.

Now, I don't think its entirely unfair to say that this has a disparate impact 
on gays and lesbians (and, if it is unfair, it is certainly not because there 
are many more heterosexuals than homosexuals.) The policy excludes all sexually 
active homosexuals but only those sexually active heterosexuals who have sex 
outside of marriage.

But I don't see the notion of disparate impact as helpful at all. The question, 
rather, is whether CLS' rights of association entitle it to make that 
distinction or, in the particular context of public fora analysis, whether 
Hastings decision to condition recognition of the group as a student 
organization is viewpoint neutral.

My own view is that CLS - certainly outside the public forum context but, I 
would argue, within it as well - should be permitted to exclude those who do 
not share its views. Pushed to its logical conclusion, this may result in hard 
cases in which the question becomes whether these associational rights can be 
pushed to permit the exclusion not only of those persons who wish to act on a 
status but who adhere to views about that status on which otherwise applicable 
antidiscrimination law is based.

Rick

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [layco...@umich.edu]
Sent: Monday, May 10, 2010 11:53 AM
To: Law & Religion issues for Law Academics
Subject: Factual Clarification re CLS

CLS's membership policy does not turn on the .  CLS's rule prohibits any 
unrepentant sexual relationships outside marriage, whether same-sex or 
opposite-sex.  There is no classification based on sexual orientation. There is 
no disparate impact; there no are no doubt many more Hastings students in 
sexually active opposite-sex relationships than in sexually active same-sex 
relationships.

It is true that the opposite-sex couples could legally get married, and the 
same-sex couples could not, but that has little relevance to the unmarried 
opposite-sex couples, who are unmarried for a reason:  they are finanically or 
emotionally unprepared for marriage, or not yet ready to settle down, or 
commit, or whatever.  Most of the same-sex couples are probably int he same 
situation in addition to being legally unable to marry.  Anyone who is having 
sex and for whatever reason isn't married is excluded by the CLS rule.

Quoting "Esenberg, Richard" :

> CLS v. Martinez occurred to me too. Although there are the
> complications of public fora analysis, it seems to me that the case
> may begin a process of facing the inevitable conflict presented by
> efforts to define a perspective that is still shared by a significant
> portion of the population - perhaps even a majority - as invidious
> discrimination. This str

RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception

[Esenberg, Richard]

CLS v. Martinez occurred to me too. Although there are the complications of 
public fora analysis, it seems to me that the case may begin a process of 
facing the inevitable conflict presented by efforts to define a perspective 
that is still shared by a significant portion of the population - perhaps even 
a majority - as invidious discrimination. This strikes me as fundamentally 
different from our experience with race and gender. The national (if not, in 
the case of race, southern) consensus led, rather than trailed, the law.

The difficulty of this reconciliation is reflected in the litigating positions 
taken in Martinez. Hastings has retreated from the idea that it can restrict 
the particular point of view expressed by CLS arguing (rather fantastically in 
my view) that it merely wishes to prohibit any student organization from 
excluding anyone from leadership based on point of view. In Hastings' forum, 
cats must live with dogs, Democrats must welcome Republicans, and PrideLaw must 
accept congregants of the Westboro Baptist Church. Even if this works in the 
context of public fora analysis (and I don't think it does), it won't help in 
other contexts.

CLS, on the other hand, says that it has no desire to exclude gays and lesbians 
as long as they are willing to affirm that to act on their sexual orientation 
would be a sin.

To some, this is an odd distinction. When I debated CLS v. Martinez with Shaun 
Martin at the Unviversity of San Diego Law School, he referred to to it as 
saying "well, ... I'm not gay gay." CLS, in the views of some, has simply 
recast an exclusion based on status as an exclusion based on belief.

I think Chris' hypothetical raises that issue more starkly than CLS. We can 
imagine that some (although perhaps not many) gays and lesbians might well 
believe that acting on his or her sexual orientation would be wrong and would  
be willing to affirm CLS' statement of belief.

But a woman who accepts Ordinatio Sacerdotalis will not present herself for 
ordination. Viewing the exclusion as an exercise of a right of expressive 
association rather than sex discrimination effectively excludes women from the 
leadership position at issue.

Maybe that's OK for religious organizations even if Smith has put paid to the 
ministerial exception.

But what about the secular world? What about a kinder and gentler version of 
the Little Rascal's He-Man Woman Haters Club, say the Legion for Preservation 
of Motherhood and the Traditional Family formed to advocate for, among other 
things, traditional gender roles. Might it say that it will only hire women who 
sign a statement that says married women should not work outside of the home.

Beyond that, could it take the postion that hiring women (or even admitting 
them to membership meetings in the evening when they should be at home with the 
children) would interfere with their expressive message? As I recall, the Boy 
Scouts' policy was to exclude avowed homosexuals.

I guess its evident that I really don't want to start grading today.

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975





From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [layco...@umich.edu]
Sent: Sunday, May 09, 2010 8:42 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Question About The Statutory Title VII Exception and the 
Constitutional Ministerial Exception

This questions were actually posed in Dayton Christian Schools, which went off 
on Younger grounds in the Supreme Court in 1986.  Got a hostile opinion on the 
merits in the Sixth Circuit.

They are also lurking in CLS v. Martinez, argued April 19.  CLS requires a 
statement of faith, which everyone agrees is religious, and it requires a good 
faith effort to live up to Christian morality, which precludes unrepentant 
nonmarital sex.  That's clearly religious for CLS; Hastings claims it is sexual 
orientation discrimination.

Quoting Christopher Lund :

> No problem with you missing it, Eugene -- it actually proves we're
> thinking alike.  I agree with everything you said, and I think it
> unlikely the Catholic Church would do this.  (Although note Ordinatio
> Sacerdotalis does end with the line, “We declare that the Church has
> no authority whatsoever to confer priestly ordination on women and
> that this judgment is to be definitively held by all the Church's
> faithful.”).
>
> In any event, the main issue I’m trying to think about is this.  The
> statutory exception, as written, only gives churches a shield against
> claims of religious discrimination.  But, in practice, it should
> provide protection from any type of discrimination claim -- as long
> as the discrimination is not just a church practice but a core church
> belief.  And this has ex ante effects; by adopting certain doctrines,
> ch

RE: Snowbowl decision

[Esenberg, Richard]

It is an interesting question. I wonder if the difference in standards might 
affect a Mozert type case. Imagine a group of, say,  Evangelicals whose 
participation in a government program requires them to listen to ostensibly 
secular messages that offend their religious sensibilities or that they believe 
is harmful to their spiritual well being. It isn't that they are prohibited 
from hearing these messages but they have a strong religiously based preference 
not to do so. Like the Mozert plaintiffs, they want an exemption.

You could argue that they have been forced to choose between following the 
tenets of their religion or receiving a government benefit, but my hypothetical 
assumes that they would not be forbidden to participate and it seems possible, 
given the court's dismissal of spiritual injury, that it would refuse to see 
their religious tenets as at issue much as the Mozert court did.

Of course, its not clear that they would fare much better under the other 
standards and it may be unlikely that RFRA or RLUIPA would ever help plaintiffs 
in Mozert-type claims for much the same reason that prompted the 9th Circuit to 
adopt a narrow standard, i.e., to avoid potentially unlimited claims to be 
excepted from a variety of legal requirements.

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975
Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715
Blogs: 
www.sharkandshepherd.blogspot.com
 http://law.marquette.edu/facultyblog/
You can access my papers at: 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Steven Jamar [stevenja...@gmail.com]
Sent: Sunday, June 14, 2009 1:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: Snowbowl decision

Yes, it would seem so.  Thanks.

But still, it seems that this still involves another person -- one who could 
very much face sanctions for exercising the right -- the penitent.  And so it 
seems that even in this case one could shoehorn it into the 9th Circuit test as 
written -- although it would admittedly also require a third party standing 
decision for the priest to assert the penitent's rights -- but don't they do 
that all the time?  Isn't that inherent in the nature of the evidentiary 
privilege?

To be clear about my position -- I think the majority in the 9th Circuit is 
wrong as a matter of policy and is being more than a little facile with the 
precedent (like the Supreme Court was in Smith -- whatever the merits of the 
decision and rule announced in that case) and is really quite at odds with 
Congressional intent in RFRA and RLUIPA, howsoever inartfully expressed.

And I think that it is easier to find substantial burdens in religions other 
than Christianity here, especially earth-based ones.  And I think the 9th 
Circuit case is very likely to be limited in the future given the unusual 
factual setting of it.  But, the circuit did write broadly and seems to be 
signaling an intention that this be the test for all settings.  And I find that 
troubling.  I would much prefer a lower threshold or at least one that 
recognizes harm other than withholding of government benefits or imposing 
governmental sanction and then decide the case on the compelling interest/least 
restrictive alternative side.  "Substantial" can mean a range of things, and 
seems to have no logical connection to governmental largess or sanctions.

Nonetheless, I don't think the 9th Circuit approach is likely to work much 
mischief in the area and does seem in keeping with the spirit of Smith.  (I 
realize, of course, that RFRA was an attempt to roll back the "spirit" of Smith 
and so following the Smith spirit instead of the RFRA spirit seems wrong on 
several levels.)

Steve

On Jun 14, 2009, at 12:39 PM, Berg, Thomas C. wrote:

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

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


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

RE: Government Religious Displays and Substantive Neutrality

[Esenberg, Richard]

I'm late to this discussion but Rick is on to something that we have known for 
a long time. The modern state cannot act without conferring religious insult. A 
common move to avoid the implications of that is to announce, in Steven Jamar's 
rule, some supposed difference between the religious and the secular - 
generally turning on whether one uses expressly religious language or makes 
claims about extra temporal matters. But the idea that these matters are 
"religious" and everything else is secular is itself rooted in a certain view 
of religion and does not reflect the way many citizens view the role of faith 
in everyday life. As a result, the government can convey messages that are 
completely inconsistent with a a religious citizens most fundamental beliefs or 
can involve itself in events or subjects in a way that the exclusion of 
religion itself  conveys insult.

All of this is problematic because of the ambition with which we have sought to 
protect nonbelievers or historic religious minorities. Chase Harper can be told 
that religious beliefs that he claims are rooted in a sacred and infallible 
text are wrong (I understand that this in not precisely the claim that he made) 
while Deborah Weisman can insist on not having to sit silently while someone 
says a brief nondenominational prayer.

I don't think that both Chase and Deborah can be protected from religious 
insult. I do think that it makes little sense - and is certainly not 
substantively neutral - to distinguish between comparable insults on the basis 
of a division between the religious and secular that is not itself neutral as 
to the views and choices of citizens on religious matters.

This does not mean that anything goes. But, as I argue in a forthcoming piece 
in the William & Mary Bill of Rights Journal, we need to recalibrate the nature 
of the injury that raises establishment clause concerns.

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975
Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715
Blogs: www.sharkandshepherd.blogspot.com
 http://law.marquette.edu/facultyblog/
You can access my papers at: 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Steven Jamar [stevenja...@gmail.com]
Sent: Tuesday, March 31, 2009 10:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: Government Religious Displays and Substantive Neutrality

In other words, Rick wants us to ignore the distinction between religion and 
secular and to repeal the establishment clause, leaving only the free exercise 
clause.  Let the government make its religious speech, just like any other 
speech.  Let government push any religious point of view as if it were any 
other point of view, such as ones about democracy and the environment.

An establishment prohibition is not necessary for liberty in general and 
religious liberty in general -- many countries in the world establish religion 
and yet grant broad liberty in the form of speech and free exercise.  But it is 
nonetheless a useful and generally good distinction.

Rick doesn't like it even though the Constitution mandates that we make this 
distinction.  But that is hardly a Constitutional argument to treat religion 
just like any thing else.

Steve

--
Steven D. Jamar
vox:  410-992-9664  cell:  410-499-1536
mailto:stevenja...@gmail.com  http://iipsj.com/SDJ/


On Mar 31, 2009, at 11:02 AM, Rick Duncan wrote:

Doug Laycock writes:


"Having said all that, I don't think the incentive effects are the principal 
reason for objecting to government religious displays.  The sense of gratuitous 
affront to religious minorities does much of the work here; the incentives to 
religions to fight for control of the government if government is going to be 
taking positions on religion does much of the work.  Substantive neutrality was 
always an attempt to reconcile multiple intuitions about the Religion Clauses 
-- neutrality, liberty, separation, voluntaryism -- and I never claimed that 
substantive neutrality alone could do all the work without recourse to the 
underlying principles it was trying to reconcile."



I think this is the key to why Doug and I come out differently here. Doug 
emphasizes the

"sense of gratuitous affront to religious minorities"caused when govt speech 
includes some, but not all, religious expression. But I see the "gratuitous 
affront" to people of faith when govt celebrates all sorts of secular subgroups 
and their special days (Gay Pride, Cinco de Mayo, etc), but celebrates no 
religious subgroups and their special days.


In other words, to remain rigidly neutral among all religions, Doug's EC treats 
all religious subgroups as outsiders in public schools and in the public

RE: Regulations of private schools that increase the cost of private education

[Esenberg, Richard]

It does not appear that any constitutional issues were raised but the question 
brought to mind a decision last year by the Wisconsin Court of Appeals in 
Johnson v. Burmaster. 
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=31069

The case held that a virtual school did not comport with various elements of 
state law governing charter schools. One is interesting in this context. 
Although these virtual schools use certified teachers, they require substantial 
participation by parents in their children's education. The court held that, 
because parents were engaged in activities that fell within the statutory 
definition of teaching and were doing so "in" a public school (as opposed to 
home schooling), they must be certified under state law. This renders the 
concept unworkable.

Rick Esenberg
Marquette University Law School

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, December 28, 2008 10:36 AM
To: religionlaw@lists.ucla.edu
Subject: Regulations of private schools that increase the cost of private   
education

Does anyone know of cases dealing with whether particular
regulations of private schools are unconstitutional because they
increase the cost of private education?  I'd be inclined to assume that
the answer, as with abortion rights, is that the regulations are
permissible unless they increase the cost quite substantially.  But I'd
love to see actual cases that deal with this?  Many thanks,`

Eugene
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RE: First amendment suit against AIG bailout

[Esenberg, Richard]

The case is going nowhere and you have to assume somewhat different facts to 
get to the level of plausibility - something that I tried to do on Prawfs this 
morning. 
http://prawfsblawg.blogs.com/prawfsblawg/2008/12/the-church-or-mosque-of-aig.html

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenb...@marquette.edu

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Tuesday, December 16, 2008 9:03 AM
To: religionlaw@lists.ucla.edu
Subject: RE: First amendment suit against AIG bailout


I have not read the complaint, but I have heard or read three descriptions of 
it now.  I don't often say this, but I think it's frivolous.

The Thomas More Center seems to think the Establishment Clause means very 
little as applied to Christianity and more than anyone else can imagine as 
applied to other faiths.

Quoting "Volokh, Eugene" :

> I've read the Complaint, and it seems to me that, once one strips away
> the "Islam is bad" arguments -- arguments that surely don't advance the
> Establishment Clause claim -- one has the theory that the government may
> not invest in any company that, in part of its operations, provides
> products that are tailored to a particular religious faith, and that may
> be accompanied by donations to religious charities.
>
> Thus, if the government wanted to bail out (or just buy stock in, for
> instance for state employee pension investment purposes) a food
> processing company that produced kosher products and donated some money
> to Jewish-specific charities -- a way of better wooing Jewish customers
> -- that would be an Establishment Clause violation.  Likewise if the
> government invested money in a company that, among other things, ran
> investment funds that sought to attract conservative Christian investers
> by promising not to invest in (say) hospital chains that perform
> abortions and that donated to religious causes.
>
> That can't be right, either under a Lemon primary purpose / primary
> effect theory or an endorsement theory, for the obvious reasons that the
> primary purpose here is to make money (or perhaps to lose as little
> taxpayer money as possible), the primary effect of the government action
> is to help AIG compete effectively by providing Muslim customers with
> what they want, and no reasonable person would assume the government is
> endorsing Islam by including AIG and all its subdivisions in the bailout
> package.
>
> The only possible objection that is even theoretically plausible is that
> the government would be too entangled in the religious decisions of the
> company, for instance because government officials would end up
> supervising the programs.  But on the facts this just doesn't seem to be
> so; the operational decisions related to these religiously themed
> products and programs are made by the company, not the government, and
> the Board of Directors consists of private-sector people, see
> http://investing.businessweek.com/research/stocks/people/board.asp?symbo
> l=AIG.  Or am I missing something?
>
> Eugene
>
> 
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ed Brayton
> Sent: Monday, December 15, 2008 9:15 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: First amendment suit against AIG bailout
>
>
>
> The Thomas More Law Center filed suit on behalf of a Michigan
> resident alleging that the recent bailout of AIG violates the
> establishment clause because it invests public money in the insurance
> company, one of whose subsidiaries markets Takaful insurance to Muslims.
> This is an insurance policy that operates like mutual insurance except
> that it forbids investments in companies that produce things like
> alcohol, pornography or tobacco. You can see the complaint here:
>
>
>
>
> http://www.thomasmore.org/downloads/sb_thomasmore/DepartmentoftheTreasur
> y-Complaint.pdf
>
>
>
> The complaint strikes me as little more than anti-Muslim
> boilerplate. A press release sent out declares that this investment in
> AIG amounts to "promoting and financing the destruction of America using
> American tax dollars." The complaint contains claims like these which
> seem legally irrelevant at best and downright silly at worst:
>
>
>
> 3. As our history reveals, this Nation was founded upon values
> that acknowledge the importance of religion, respect for the right of
> conscience, and respect for the free exercise of religion. These values,
> which are Christian values, are enshrined in the religion clauses of the
> First Amendment.
>
>
>
> 4. The Shariah-based Islamic religious practices and activities
> that the government-owned

RE: LOFTON / Re: Defamation of Religion

[Esenberg, Richard]

I agree with Robert Lipkin that there is a thing called religion as difficult 
as it may be to define. Certainly, there are things that we can confidently say 
is not it.

What I have a problem with is the notion that government can be neutral among 
religions or between religion or irreligion. In particular, I am skeptical that 
a useful test for whether it has done so  - or has managed to come as close as 
it ought to be expected to come - is captured by whether it has managed to 
avoid explicitly religious language. The state lost the Sklar and Montgomery 
cases because it started to talk theology (theology toward which I have a 
certain amount of sympathy) but I can't see why the insult to those who read 
their faith differently would be any less exclusionary or stigmatizing for the 
avoidance of such language. If I am a conservative evangelical who regards 
biblical injunctions against homosexuality as authoritive, I don't know why I 
would regard myself as not being made a disfavored member of the political 
community or not believing that the state has acted to disapprove my religious 
beliefs because it has avoided theological language. To the con!
 trary, if the state engages my sacred text (even, by my lights, erroneously), 
it has treated me with more respect than if it dismisses my views as bigotry.

This is why, I think, the whole defamation against religion concept is an idea 
at war with itself. Those who promote the idea seem to want to say that, for 
example, the  relatively mild criticisms of Islam by Mark Steyn (if you want a 
different villain than CAIR, try Bill Donahue) should bear legal sanction, But, 
if they are right, we need to know why secular messages that are far more 
inconsistent with or dismissive of integral religious presuppositions,  e.g.,, 
assertions by the San Francisco Board of Examiners about Catholic teachings on 
homosexuality and the moral authority of the Church.


Rick Esenberg
Marquette University Law School

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] [EMAIL 
PROTECTED]
Sent: Friday, August 01, 2008 9:45 AM
To: religionlaw@lists.ucla.edu
Cc: [EMAIL PROTECTED]
Subject: Re: LOFTON / Re: Defamation of Religion

Insisting there is no religion--it doesn't exist--but "religion" can 
nevertheless be used intelligibly (as a bracket term). suggests that one has an 
elaborate argument that no matter how much it might vary from ordinary 
intelligent discourse, he or she wants to impose on you. I think I'll pass on 
examining that argument, but go right ahead and articulate anyway.

Bobby

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

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

In a message dated 8/1/2008 10:33:28 A.M. Eastern Daylight Time, [EMAIL 
PROTECTED] writes:
In point of fact, strictly speaking, there is no such thing that actually 
exists that is called "religion." That's why I put it in quotes. "Religion" is 
an abstract category that no one actually practices any more than someone plays 
"sports" or eats "food." Thus, I do not believe you can "trivialize" that which 
does not actually exist. As for creating "conceptual and practical confusion," 
I believe this happens when one talks about unreal things as if they are real. 
In any event, if someone denies that all governments are "religious" in origin, 
and based on some kind of "religion," let's test what I say. Name me a 
government that you say is not "religious" and I'll show you how it is. Thank 
you.

John Lofton, Editor, TheAmericanView.com
Recovering Republican

"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.


-Original Message-
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: Fri, 1 Aug 2008 6:52 am
Subject: Re: LOFTON / Re: Defamation of Religion

This certainly trivializes the concept of "religion." A government that 
persecutes theists, defames religion in general, and so forth is religious? I 
suppose the argument is that such a government simply adopts the "wrong" 
religion.  I suppose similarly each individual is religious no matter what that 
person's view is about the existence of God or the practice of religion. Taking 
this route, however,  creates both conceptual and practical confusion, but one 
is, of course, free to take it. To what end?

Bobby

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

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

In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, [EMAIL 
PROTECTED] writes:
ALL government 

RE: Appeals Court Bans Prayer 'in Jesus' name'

[Esenberg, Richard]

My own personal reaction  to invocations is often as Professor Friedman 
describes and my concern about the asymmetric treatment of government speech 
that makes religious dissenters feel like outsiders is more acutely presented 
in cases involving curricular speech, private speech that can be deemed to be 
government sponsored, faith based initiatives and the (admittedly rare) types 
of government proclamations of which the San Francisco Board of Examiners is so 
fond.

But others see things differently and this is one of the reason that neither 
Marsh nor Van Orden buy us much civil peace. The idea that one can, in the 
words, iirc, Warren Nord, achieve neutrality through exclusion doesn't survive 
our modern idea of expanded government. This is one of the reasons that the 
Court's regime of strict separation broke down. Those who were being excluded 
did not see the naked public square as neutral.

I largely agree with Professor Brownstein that it would be undesirable for "the 
majority [to be] free to commandeer government resources for the purpose of 
promoting and influencing the religious beliefs of citizens about "worship, 
ritual, prayer, and denominationally distinct answers to questions about the 
nature of G-d" to the same extent that government uses its resources to 
communicate messages about patriotism, military service, public health, civil 
rights and a host of other value-based subjects."

What I think it ought to be able to do, in service of a public and not entirely 
sectarian purpose, is to acknowledge and include the religious sentiments of 
its citizens as it serves that purpose without the type of restrictions often 
associated with the Lemon test or required by Justice O'Connor's endorsement 
test.

In doing so, it ought not be permitted to coerce affirmation or participation 
in religious ceremonies or otherwise impose legal disabilities on nonadherents. 
My instinct is also that certain types of government messages can be so hostile 
to religious minorities that they impede their ability to function in civil 
society. An extreme example would be the Nazi party's vilification of Jews - 
something which supplemented coercive practices but which wasn't, strictly 
speaking, itself coercive.

But I don't think it ought to be considered "coercive" to be exposed to a 
prayer at a graduation ceremony or to see a monument depicting the Ten 
Commandments in a public square. It is not coercive to see crosses in a 
memorial to the slain students at Columbine or to be exposed to the treatment 
of religious perspectives as they relate to subjects and activities with which 
the state is legitimately involved. While some of the latter is - or should be 
- permitted under current doctrine, I think that the ideas of coercion and 
substantial impairment of participation in civil society gets at what we ought 
to be concerned for rather than notions of mere endorsement (O'Connor) or 
advancing religion or having a predominant secular motivation (Souter in 
McCreary) - all with little regard to the extent of burden upon nonadherents.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]








From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Christopher Lund [EMAIL 
PROTECTED]
Sent: Friday, July 25, 2008 9:16 AM
To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED]
Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'

"That kind of jockeying for government recognition of particular
denominations-- or for an implicit government statement rejecting
supposed antireligious views-- seems to be just the kind of political
divisions along religious lines that the Establishment Clause was
supposed to prevent."

Yes indeed to Professor Friedman's statement, and (I would add) it's
also the sort of divisions that Marsh itself was trying to prevent.  I
tend to see Marsh as an earlier Van Orden -- government gets to act
religiously, but not too much.  Breyer says in Van Orden that upholding
the momument (not striking it down) is the best way to avoid
"religiously based divisiveness."  I bet Marsh court had a thought or
two along those lines -- that the best way to keep the peace was by
approving legislative prayer with some (what it thought to be modest)
strings attached.

Can we all agree that Marsh has utterly failed in this regard?

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
>>> [EMAIL PROTECTED] 07/25/08 8:14 AM >>>
I think we need to ask why so much passion is expended on the question
of invocations to begin meetings of government bodies. I find it hard to
believe that proponents feel legislators will make significantly
different decisions if the form 

RE: Appeals Court Bans Prayer 'in Jesus' name'

[Esenberg, Richard]

Professor Brownstein writes:

Indeed, it is hard to imagine how t!
 he religion clauses can operate meaningfully -- if we are not willing to draw 
some lines that limit their scope, such as a line between ethics and moral 
principles that resonate with, or are derived, from religion and worship, 
ritual, prayer, and denominationally distinct answers to questions about the 
nature of G-d.

That is one way in which they can operate and it is the way we have chosen. The 
problem, of course, is that it doesn't reflect the way many religious believers 
feel that their lives ought to be lived. Because of that, it is a way that 
cannot accomplish our more ambitious objectives. It can't, as Justice O'Connor 
wished, keep all from feeling like religious outsiders. It can't achieve 
substantive neutrality. It can't even, as we have seen, avoid substantial 
division along religious lines. What it can do is enforce a particular view of 
the relative domains of the religious and the secular.

One of the reasons that those lines have to be drawn in that way is the 
relatively low bar we have set for religious insult, e.g., Justice Kennedy's 
view that it was "too much" to ask Deborah Weissman to sit through a 
nondenominational prayer . Were we to apply that same degree of sensitivity to 
persons who must sit through, say, state sponsored speech promoting some set of 
views that, while not expressly religious, contradict the foundation of that 
persons religious beliefs, e.g., a program on the normative nature of 
homosexuality or a class on values clarification or some such thing, government 
as we have come to know it couldn't operate.

One resolution may be to raise the bar for religious insult. If we can't 
protect religious outsiders from insult, then perhaps we ought not to try by 
imposing a particular view of the proper boundaries between the religious and 
the secular.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]






From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Brownstein, Alan [EMAIL 
PROTECTED]
Sent: Thursday, July 24, 2008 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'

If I am reading Professor Esenberg's post correctly (and I am not sure that I 
am) he seems to be saying that government can never avoid speaking religiously. 
If that is his point, a lot depends on how one defines"speaking religiously." 
If speaking religiously includes saying anything that will "either contradict 
some group's strongly held religious belief or minimize them by treating them 
as irrelevant," he is probably correct that government can seldom avoid 
speaking religiously -- but that is an extremely broad understanding of 
religion for constitutional purposes. Most of us do not think that government 
acts religiously whenever its decisions will "either contradict some group's 
strongly held religious belief or minimize them by treating them as 
irrelevant." (I may be quite annoyed if my son's public school only offers ham 
and cheese sandwiches at the cafeteria for lunch, but I would not characterize 
that conduct as acting religiously.) Indeed, it is hard to imagine how t!
 he religion clauses can operate meaningfully -- if we are not willing to draw 
some lines that limit their scope, such as a line between ethics and moral 
principles that resonate with, or are derived, from religion and worship, 
ritual, prayer, and denominationally distinct answers to questions about the 
nature of G-d.

I certainly agree that religion clause jurisprudence represents compromises 
among competing constitutional values -- and that these compromises can never 
be entirely free from costs.

Still, prohibiting prayer (sectarian or otherwise) at a city council meeting, 
where the governing body typically engages in both legislative and 
administrative functions and individuals often ask the council directly to 
exercise power on issues that may impact a very small class or even a single 
person, should be an easy case. Under an endorsement test or a coercion test, 
government prayer in this context should be unconstitutional.

Alan Brownstein
UC Davis School of Law

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard
Sent: Thursday, July 24, 2008 12:54 PM
To: Law & Religion issues for Law Academics
Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'

 I agree with Professor Gibson that faithful Christians can pray without 
invoking the name of Jesus and with Professor Lund that this seems like the 
correct result under existing law (even Justice Sca

RE: Appeals Court Bans Prayer 'in Jesus' name'

[Esenberg, Richard]

Agreed, I'm interested in the larger question.

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Christopher Lund [EMAIL 
PROTECTED]
Sent: Thursday, July 24, 2008 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'

I agree with some of the points Professor Esenberg makes, but just to be clear, 
the result in this case wouldn't change if governmental prayers in Jesus' name 
were considered constitutionally permissible.  Fredricksburg would still be 
allowed (under the government-speech doctrine) to keep their own prayers 
nonsectarian.  Turner was seeking to impose (not lift) constitutional 
restrictions on Fredricksburg.

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)

>>> [EMAIL PROTECTED] 7/24/2008 2:54:26 PM >>>
I agree with Professor Gibson that faithful Christians can pray without 
invoking the name of Jesus and with Professor Lund that this seems like the 
correct result under existing law (even Justice Scalia might agee) and I 
appreciate Professor Laycock's invocation of the great Alexander Bickel.

Wrong answers is what the wrong questions beget,

One of my favorite phrases. But I wonder if the right question is whether 
government, as we know it in the 21st  century, ever can avoid speaking 
religiously. While the monument questions don't put the question in the 
starkest form, the more things on which government chooses to speak, the more 
likely it is to either contradict some group's strongly held religious belief 
or minimize them by treating them as irrelevant. Government can, of course, 
avoid speaking in expressly sectarian terms, but the idea that this avoids (or 
even softens) the religious insult seems empirically wrong and rooted in a view 
of what religion is and where it ought to be allowed that is itself not 
religiously neutral.

Maybe that resolution - itself a very liberal protestant denouement - is the 
best we can do, although the idea that this has resulted in less division and 
more liberty is not self evidently true.

But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' 
name really ought to constitute an establishment of religion.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL 
PROTECTED]
Sent: Wednesday, July 23, 2008 7:15 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Appeals Court Bans Prayer 'in Jesus' name'


Well actually, the court of appeals did not ban prayer in Jesus' name.  Nor did 
the City of Fredericksburg ban prayer in Jesus' name.  Prayer in Jesus' name is 
continuing all over the city.  The City said it would not sponsor prayer in 
Jesus' name; if anything was "banned," it was only at official city functions 
where the City controlled the agenda and thus controlled whether there would be 
a prayer at all.

I agree that this is a very awkward decision.  But it is the inevitable result 
once we start down the path of allowing government-sponsored prayers.  Wrong 
answers is what the wrong questions beget, and when the answer is that the best 
solution is to restrict the religious content of prayers, the system has asked 
the wrong question.  The only way to fix this is to reconsider Marsh v. 
Chambers.

Quoting Gordon James Klingenschmitt <[EMAIL PROTECTED]>:

> Press release below.   Please forward widely.   Please call for interviews!
> In Jesus,
> Chaplain K.
> 
>
>   Appeals Court Bans Prayer 'In Jesus' Name'
>
> Contact: Chaplain Klingenschmitt, 
> www.PrayInJesusName.org,
> 719-360-5132 cell, [EMAIL PROTECTED]
>
> WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court
> of Appeals today ruled that the city council of Fredericksburg,
> Virginia had proper authority to require "non-sectarian" prayer
> content and exclude council-member Rev. Hashmel Turner from the
> prayer rotation because he prayed "in Jesus' name."
>
> Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said:
> "The restriction that prayers be nonsectarian in nature is designed
> to make the prayers accessible to people who come from a variety of
> backgrounds, not to exclude or disparage a particular faith."
>
> Ironically, she admitted Turner was excluded from participating
> solely because of the Christian content of his prayer.
>
> A full text copy of the decision, with added commentary by Chaplain
> Klingenschmitt is here:
> www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf
>
> Gordon James Klingenschmitt, the former Navy chaplain who faced
> court-martial for pr

RE: Appeals Court Bans Prayer 'in Jesus' name'

[Esenberg, Richard]

 I agree with Professor Gibson that faithful Christians can pray without 
invoking the name of Jesus and with Professor Lund that this seems like the 
correct result under existing law (even Justice Scalia might agee) and I 
appreciate Professor Laycock's invocation of the great Alexander Bickel.

Wrong answers is what the wrong questions beget,

One of my favorite phrases. But I wonder if the right question is whether 
government, as we know it in the 21st  century, ever can avoid speaking 
religiously. While the monument questions don't put the question in the 
starkest form, the more things on which government chooses to speak, the more 
likely it is to either contradict some group's strongly held religious belief 
or minimize them by treating them as irrelevant. Government can, of course, 
avoid speaking in expressly sectarian terms, but the idea that this avoids (or 
even softens) the religious insult seems empirically wrong and rooted in a view 
of what religion is and where it ought to be allowed that is itself not 
religiously neutral.

Maybe that resolution - itself a very liberal protestant denouement - is the 
best we can do, although the idea that this has resulted in less division and 
more liberty is not self evidently true.

But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' 
name really ought to constitute an establishment of religion.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL 
PROTECTED]
Sent: Wednesday, July 23, 2008 7:15 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Appeals Court Bans Prayer 'in Jesus' name'


Well actually, the court of appeals did not ban prayer in Jesus' name.  Nor did 
the City of Fredericksburg ban prayer in Jesus' name.  Prayer in Jesus' name is 
continuing all over the city.  The City said it would not sponsor prayer in 
Jesus' name; if anything was "banned," it was only at official city functions 
where the City controlled the agenda and thus controlled whether there would be 
a prayer at all.

I agree that this is a very awkward decision.  But it is the inevitable result 
once we start down the path of allowing government-sponsored prayers.  Wrong 
answers is what the wrong questions beget, and when the answer is that the best 
solution is to restrict the religious content of prayers, the system has asked 
the wrong question.  The only way to fix this is to reconsider Marsh v. 
Chambers.

Quoting Gordon James Klingenschmitt <[EMAIL PROTECTED]>:

> Press release below.   Please forward widely.   Please call for interviews!
> In Jesus,
> Chaplain K.
> 
>
>   Appeals Court Bans Prayer 'In Jesus' Name'
>
> Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org,
> 719-360-5132 cell, [EMAIL PROTECTED]
>
> WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court
> of Appeals today ruled that the city council of Fredericksburg,
> Virginia had proper authority to require "non-sectarian" prayer
> content and exclude council-member Rev. Hashmel Turner from the
> prayer rotation because he prayed "in Jesus' name."
>
> Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said:
> "The restriction that prayers be nonsectarian in nature is designed
> to make the prayers accessible to people who come from a variety of
> backgrounds, not to exclude or disparage a particular faith."
>
> Ironically, she admitted Turner was excluded from participating
> solely because of the Christian content of his prayer.
>
> A full text copy of the decision, with added commentary by Chaplain
> Klingenschmitt is here:
> www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf
>
> Gordon James Klingenschmitt, the former Navy chaplain who faced
> court-martial for praying "in Jesus name" in uniform (but won the
> victory in Congress for other chaplains), defended Rev. Hashmel
> Turner:
>
> "The Fredericksburg government violated everybody's rights by
> establishing a non-sectarian religion, and requiring all prayers
> conform, or face punishment of exclusion. Justice O'Connor showed her
> liberal colors today, by declaring the word 'Jesus' as illegal
> religious speech, which can be banned by any council who wishes to
> ignore the First Amendment as she did. Councilman Rev. Hashmel Turner
> should run for mayor, fire the other council-members, and re-write
> the prayer policy. And if he appeals to the Supreme Court, I pray he
> will win, in Jesus' name."
>
> For media interviews, call:
> Chaplain Klingenschmitt 719-360-5132 cell
> Email: [EMAIL PROTECTED]
> Web address: www.PrayInJesusName.org
>
>
>
> Source:
> http://christiannewswire.com/news/558917273.html
>
>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan La

RE: Congressional resolutions: threat or menace?

[Esenberg, Richard]

"My evangelistic brethren confuse an objection to compulsion with an objection 
to religion. It is possible to hold a faith with enough confidence to believe 
that what should be rendered to God does not need to be decided and collected 
by Caesar."

It's a worthy distinction and one that might apply just as well to religious 
and moral arguments from the left. I may regard concern for the poor and 
sharing of my wealth as a religious and moral duty, but not believe (at least 
beyond a certain level) that it ought to be a matter of state compulsion.

Although it does not undercut Douglas Laycock's observation about the nine, I 
should point out, for the record, that Pete Stark has "come out" as an 
atheist.
 (He's the Unitarian.)

For those who keep it, Merry Christmas


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]




From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton
Sent: Wednesday, December 19, 2007 9:55 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Congressional resolutions: threat or menace?

This reminds me of Justice Jackson's dissent in Zorach, where he reacted with 
eloquence and anger to Justice Douglas' suggestion in his majority opinion that 
the only way to justify opposition to the released-time program was 
anti-religious bigotry:

"As one whose children, as a matter of free choice, have been sent to privately 
supported Church schools, I may challenge the Court's suggestion that 
opposition to this plan can only be antireligious, atheistic, or agnostic. My 
evangelistic brethren confuse an objection to compulsion with an objection to 
religion. It is possible to hold a faith with enough confidence to believe that 
what should be rendered to God does not need to be decided and collected by 
Caesar."

Coincidentally, I just used that quote in an article on a new released-time 
program today.

Ed Brayton

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Wednesday, December 19, 2007 10:26 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Congressional resolutions: threat or menace?


I don't know anything about the intensity or sincerity of their personal faith, 
but these nine alleged anti-Christian bigots include a Baptist, two AME 
(African Methodist Episcopal), two Presbyterians, two Episcopalians, one 
Unitarian, and one Jew. So 7 are Christian and at least 3 (the Baptist and AME) 
are probably evangelical Christians.  There are reasons other than 
anti-Christian bigotry for these votes, like the greater religious content in 
the Christmas resolution.

PC does exist, and there is anti-Christian animus, but it is not lurking behind 
every disagreement.

Quoting Will Linden <[EMAIL PROTECTED]>:

>
>   I have learned of yet another threat to our inclusive society
>
>
>> Dec 12, 2007 - Bill Action
>> Scheduled
>>  for
>> Debate: H.J.Res. 15: Recognizing the contributions of the Christmas tree
>> industry to the United States...
>> This bill has been added to a schedule of legislation to be considered for
>> debate, or has been recommended by a committee to be considered.
>> (You are seeing this event because you are tracking
>> Religion)
>
>This was passed on Monday. It went by voice vote, so those THEOCRATS
> who want to FORCE everyone to buy live-cut trees (it praises them right in
> the "Whereas", so we know what THEY are really after) did not even have to
> put their names on record.
> If we raise the alarm, it may wake up those people who waste their
> priorities worrying about triviality like the Protect America Act, so we
> can make sure that the Senate buries this outrage as it did last year.
>
>   Meanwhile, Get Religion notes:
>   "Of the nine representatives, all Democrats, who voted against the
> Christmas resolution, seven supported both the Ramadan and Diwali measures.
> Those seven were Reps. Gary Ackerman and Yvette Clarke, both of New York;
> Diana DeGette of Colorado; Jim McDermott of Washington; Bobby Scott of
> Virginia; and Pete Stark and Lynn Woolsey, both of California. Rep. Alcee
> Hastings of Florida did not vote on the Diwali resolution, and Rep. Barbara
> Lee failed to record a vote on the Ramadan measure."
>Of course, this could not possibly mean anything, since PC does not
> exist and there is no anti-Christian animus anywhere.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewe

RE: Meditation room in community college

[Esenberg, Richard]

It seems to fit uneasily into the Lamb's Chapel trilogy and hard to reconcile 
with either Lemon neutrality or notions of nonendorsement.

Maybe it's an tougher case if the Islamic literature is not permitted in the 
room when Muslim students are not using it (or, perhaps, if other literature is 
also permitted), but the school hasn't simply made a facility available for 
religious uses, it has constructed the space to accommodate use by one 
particular religion. If you are willing to permit this, I don't know why you 
also wouldn't permit modification of a room to include an altar, baptismal font 
or even a crucifix.

Unless it outfits other rooms for other faiths, I would imagine that a court 
would find that the modification of the room and the enforcement of rules (the 
removal of shoes) that mark it as an Islamic space lack a secular purpose and 
advance Islam. I would expect a judge to conclude that a reasonable observer 
would conclude that the school has endorsed Islam.

The problem here is not what permitting Islamic worship but acting in a way 
that marks the space as one for Islamic worship.

I am not a fan of either Lemon or nonendorsement but that's how I'd guess this 
would sort out.

Rick Esenberg
>
> Visiting Assistant Professor of Law
>
> Marquette University Law School
>
> Sensenbrenner Hall
>
> 1103 W. Wisconsin Avenue
>
> Milwaukee, Wisconsin 53201
>
> (o) 414-288-6908
>
> (m)414-213-3957
>
> [EMAIL PROTECTED]
>



From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Volokh, Eugene [EMAIL 
PROTECTED]
Sent: Monday, December 17, 2007 11:14 AM
To: Law & Religion issues for Law Academics
Subject: Meditation room in community college

Any thoughts on the story?  My sense is that this would be permissible
if the room were open to all student groups (or at least all student
groups that are religious or antireligious), even if it turned out that
other groups had no inclination to use it.  But I'd love to hear what
others think.  Thanks,

Eugene

http://www.startribune.com/featuredColumns/12551256.html

...

Last week, I visited a Muslim place of worship. A schedule for Islam's
five daily prayers was posted at the entrance, near a sign requesting
that shoes be removed. Inside, a barrier divided men's and women's
prayer space, an arrow informed worshippers of the direction of Mecca,
and literature urged women to cover their faces.

Sound like a mosque?

The place I'm describing is the "meditation room" at Normandale
Community College, a 9,200-student public institution in Bloomington.

Until recently, the room was the school's only usable racquetball court.
College administrators converted the court into a meditation room when
construction forced closure of the previous meditation room.

A row of chest-high barriers splits the room into sex-segregated
sections. In the smaller, enclosed area for women sits a pile of shawls
and head-coverings. Literature titled "Hijaab [covering] and Modesty"
was prominently placed there, instructing women on proper Islamic
behavior.

They should cover their faces and stay at home, it said, and their
speech should not "be such that it is heard."

"Enter into Islaam completely and accept all the rulings of Islaam," the
tract read in part. "It should not be that you accept what entertains
your desires and leave what opposes your desires; this is from the
manners of the Jews."

"[T]he Jews and the Christians" are described as "the enemies of
Allaah's religion." The document adds: "Remember that you will never
succeed while you follow these people."

A poster on the room's door advertised a local lecture on "marriage from
an Islamic perspective," with "useful tips for marital harmony from the
Prophet's ... life." Other fliers invited students to join the
Normandale Islamic Forum, or participate in Ramadan celebrations.

One thing was missing from the meditation room: evidence of any faith
but Islam. No Bible, no crucifix, no Torah

Despite the room's Islamic atmosphere, [Dean of Student Affairs Ralph]
Anderson says it "is open to everyone." ...

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RE: Is First Amendment viewpoint-discriminatory against antigayspeech?

[Esenberg, Richard]

those mob attacks is hardly the language of the political left.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Esenberg,
Richard
Sent: Tuesday, November 06, 2007 8:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Is First Amendment viewpoint-discriminatory against
antigayspeech?

"Violence is visited far more by those on the political right
on those on the political left than is the reverse case."

What do mean by "violence, formal and informal. In contemporary America,
direct political violence is, thankfully, relatively rare unless you
define violence in a way that departs from its customary usage. Perhaps
the idea is that political rhetoric leads to criminal activity by
others, but the notion that this happens to any substantial degree (as
well as the assertion that violence, however we may define it, is a
disproportionately a malady of the political right) do not strike me as
self evident.

I suppose that you can always argue for the special protection of those
we regard as discrete, insular and socially disadvantaged, but isn't it
hard to do that without some notion of what type of criticism (or verbal
attacks) are permissible. If gays are in, how about fundamentalist
Christians and Muslims who also feel put upon by the larger society. How
about Jews? Need we have special concern about rhetoric denouncing the
"Jewish lobby"? After a few easy cases (and maybe not even that many), I
think it's hard to make distinctions like this without advancing a
judgment that is either entirely subjective or based upon ideological
presuppositions.

But even if that's not the case, what about the impact of an asymmetric
rule that reflects this supposed ideological asymmetry? Don't we expect
rules to affect the behavior that they govern? To paraphrase Scalia in
R.A.V., if we allow one side to fight freestyle while the other must
follow the Marquis of Queensbury rules, isn't it almost certain that,
human nature being what it is, those who can fight freestyle will?

Rick Esenberg
Marquette University Law School




From: [EMAIL PROTECTED]
[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
[EMAIL PROTECTED]
Sent: Monday, November 05, 2007 9:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is First Amendment viewpoint-discriminatory against
antigayspeech?

Well, let me probe again the question I raised in the post below
(which Michael quotes).  I take it that to the extent that speech can be
punished because it indirectly promotes violence -- which is to say, to
the extent that Brandenburg v. Ohio is overruled, at least when speech
comes from "the political right" (and Phelps' anti-American,
antipatriotic speech is treated as being of "the political right") -- we
should worry much more about facially polite speech by mainstream
religious groups and mainstream religious leaders than about facially
extremely rude speech by the extremely marginal.  No-one much listens to
Phelps, and the very extremism of both his manner and his message
undermines him, and makes it highly unlikely that his speech will
actually foment violence.  On the other hand, condemnation of
homosexuality, even in facially peaceful tones and with peaceful
messages -- for instance, by the Catholic Church, by orthodox Muslim or
Jewish denominations, or by many traditionalist Protestants -- probably
does indirectly promote violence against gays.  The speakers may not
intend that, but surely the effects of their speech are much more
harmful to gays than the effects of Phelps' speech.

Under Michael's rationale, then, it seems to me that a ban on
mainstream religious teachings that promote hostility towards
homosexuality (even if they don't on their face or in their intentions
call for violence against homosexuals) would be perfectly
constitutional:  Recognition of gay rights would lead, and should lead,
to suppression of traditionalist religious groups' right to promote
their religious beliefs.  Or am I mistaken?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Newsom Michael
> Sent: Monday, November 05, 2007 3:03 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> Let me make two related points.
>
> 1.People who dislike Phelps' group may do so for a variety of
> reasons, some reasons being principled, some being tactical
> or strategic only.
>
> 2.There is a powerful psychological link between gays and the
> Phelps group's conduct at the funeral of fallen warriors, and it is
> this: an anti-gay backlash could result because if it weren't
> for gays, or the "gay agenda," whatever that is, P

RE: Is First Amendment viewpoint-discriminatory against antigayspeech?

[Esenberg, Richard]

"Violence is visited far more by those on the political right
on those on the political left than is the reverse case."

What do mean by "violence, formal and informal. In contemporary America, direct 
political violence is, thankfully, relatively rare unless you define violence 
in a way that departs from its customary usage. Perhaps the idea is that 
political rhetoric leads to criminal activity by others, but the notion that 
this happens to any substantial degree (as well as the assertion that violence, 
however we may define it, is a disproportionately a malady of the political 
right) do not strike me as self evident.

I suppose that you can always argue for the special protection of those we 
regard as discrete, insular and socially disadvantaged, but isn't it hard to do 
that without some notion of what type of criticism (or verbal attacks) are 
permissible. If gays are in, how about fundamentalist Christians and Muslims 
who also feel put upon by the larger society. How about Jews? Need we have 
special concern about rhetoric denouncing the "Jewish lobby"? After a few easy 
cases (and maybe not even that many), I think it's hard to make distinctions 
like this without advancing a judgment that is either entirely subjective or 
based upon ideological presuppositions.

But even if that's not the case, what about the impact of an asymmetric rule 
that reflects this supposed ideological asymmetry? Don't we expect rules to 
affect the behavior that they govern? To paraphrase Scalia in R.A.V., if we 
allow one side to fight freestyle while the other must follow the Marquis of 
Queensbury rules, isn't it almost certain that, human nature being what it is, 
those who can fight freestyle will?

Rick Esenberg
Marquette University Law School




From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Volokh, Eugene [EMAIL 
PROTECTED]
Sent: Monday, November 05, 2007 9:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech?

Well, let me probe again the question I raised in the post below
(which Michael quotes).  I take it that to the extent that speech can be
punished because it indirectly promotes violence -- which is to say, to
the extent that Brandenburg v. Ohio is overruled, at least when speech
comes from "the political right" (and Phelps' anti-American,
antipatriotic speech is treated as being of "the political right") -- we
should worry much more about facially polite speech by mainstream
religious groups and mainstream religious leaders than about facially
extremely rude speech by the extremely marginal.  No-one much listens to
Phelps, and the very extremism of both his manner and his message
undermines him, and makes it highly unlikely that his speech will
actually foment violence.  On the other hand, condemnation of
homosexuality, even in facially peaceful tones and with peaceful
messages -- for instance, by the Catholic Church, by orthodox Muslim or
Jewish denominations, or by many traditionalist Protestants -- probably
does indirectly promote violence against gays.  The speakers may not
intend that, but surely the effects of their speech are much more
harmful to gays than the effects of Phelps' speech.

Under Michael's rationale, then, it seems to me that a ban on
mainstream religious teachings that promote hostility towards
homosexuality (even if they don't on their face or in their intentions
call for violence against homosexuals) would be perfectly
constitutional:  Recognition of gay rights would lead, and should lead,
to suppression of traditionalist religious groups' right to promote
their religious beliefs.  Or am I mistaken?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Newsom Michael
> Sent: Monday, November 05, 2007 3:03 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigayspeech?
>
> Let me make two related points.
>
> 1.People who dislike Phelps' group may do so for a variety of
> reasons, some reasons being principled, some being tactical
> or strategic only.
>
> 2.There is a powerful psychological link between gays and the
> Phelps group's conduct at the funeral of fallen warriors, and it is
> this: an anti-gay backlash could result because if it weren't
> for gays, or the "gay agenda," whatever that is, Phelps'
> group would not be causing such pain and harm.  In other
> words, gay people may well be the target.  Gay people might
> be viewed as the cause of the outrageous behavior at
> funerals. Have any of the families who have been affronted
> said anything positive about gays?  And if so, how often has
> this happened?
>
> The connection between the two points is clear: a tactical
> objection to the Phelps group might merely be that its
> behavior is not the best way
> -- in the view of the tactical objector

RE: Fighting words and Phelps

[Esenberg, Richard]

If the Baltimore Sun report is correct 
(http://www.baltimoresun.com/news/local/bal-westboro1031,0,7191706.story?page=2&coll=bal_tab01_layout),
  then the Phelps statements could not be fighting words because the plaintiff 
never saw the demonstration at the funeral. He saw it on television after the 
fact. If the speech is otherwise unprotected, it must either be for the reasons 
suggested by Michael Newsom or by an exception not for funerals, but for 
statements that can reasonably be expected to upset grieving families. Does 
anyone support that?

Rick Esenberg
Marquette Unioversity Law School





From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Volokh, Eugene [EMAIL 
PROTECTED]
Sent: Tuesday, November 06, 2007 12:36 AM
To: Law & Religion issues for Law Academics
Subject: Fighting words and Phelps

If Mark is right that the speech here is fighting words, then indeed
(1) IIED could be narrowed (if courts accept my view of the overbreadth
issue) to unprotected speech, and yet (2) the result would still lead to
liability here.  In fact, fighting-words-based IIED liability would
presumably be allowed even as to public figures under Hustler v.
Falwell; if recklessly/knowingly false statements of fact are actionable
under IIED, why not other unprotected speech?

Yet I wonder whether the speech here is indeed fighting words, given
Cohen, Gooding, and Johnson.  I would think that publicly visible speech
that is aimed at a large group of people would indeed be protected even
if it's likely to lead people to want to attack the speaker.  That, I
take it, is why picket lines with signs referring to "scabs" or
"traitors" are protected, as are abortion protests that call abortion
providers murderers.  Or am I mistaken?

Eugene






From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Saturday, November 03, 2007 11:41 AM
To: Law & Religion issues for Law Academics
Subject: RE: The trouble with IIED liability here


I think the speech here simply was not protected by the First
Amendment, because it falls within the fighting words exception.
Assuming that is true (or that this speech is unprotected under some
other exception analogous to fighting words), is the application of the
First Amendment an issue initially for the jury? If I understand the law
correctly, the trial court (and reviewing courts) would not be bound by
a jury finding on the "constitutional facts" that take the speech out of
the protection of the First Amendment. I suppose it's possible, though,
that the jury ought to decide those facts first, thus giving the
defendant two bites at the apple. (Any 7th Amendment issue here on
re-examination of facts found by a jury?)

If the issue is for the court, then Eugene's criticism of the
jury instructions and of use of the tort of IIED may lose its force. The
jury will only be allowed to find for the plaintiff under the tort if
the court determines that the First Amendment does not preclude
liability. Or would the jury instructions still need to be tailored?
That is, would there still be a residual requirement that damages be
awarded based only on the features of the speech that took it out of
First Amendment protection?

Mark Scarberry
Pepperdine

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RE: IIED and vagueness

[Esenberg, Richard]

My understanding is that Code Pink demonstrators deployed mock caskets and held 
up signs saying that soldiers had died or been maimed for a lie along with 
other attacks on the war in Iraq, describing it, for example, as a war for oil. 
Here is one description:  
http://www.cnsnews.com/ViewSpecialReports.asp?Page=%5CSpecialReports%5Carchive%5C200508%5CSPE20050825a.html.

Is that "as bad as" what Phelps did? Probably not, but what constitutional test 
ought to be proposed to determine what goes over the outer boundary of 
civility? We certainly know that, even if the Code Pink demonstrations weren't 
as outrageous as Phelps' behavior, it was outrageous enough to deeply offend 
and wound those at whom it was directed.

I am puzzled by the notion that the constitutional test should turn on the 
nature of the group victimized. First, who was victimized in the Phelps case: 
gays and lesbians (who are not the ones who sued) or the families of a soldier 
who were told that God wanted their son or daughter to die? If it's the latter, 
is there a difference between telling them God wanted their loved one to die 
and telling them that their loved one's death (or injury) or the death or 
injury of one's fellow soldiers was in vain? I suspect that they are likely to 
be as offended by the latter as by the former.

Second, there is the old problem around which groups are sufficiently discrete 
and insular to deserve special protection. That choice is necessarily 
ideological. Would it include, for example, rural working class whites and born 
again Christians? If the choice is ideological, then the first amendment is no 
longer a guarantee of liberty, but a weapon for political warfare. I appreciate 
that some folks believe that it cannot be otherwise, but I disagree.

There is some force behind the notion that funerals are unique, although it's 
not clear that those things that make funerals unique wouldn't also apply to 
hospitals where soldiers are recuperating.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]





-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Friday, November 02, 2007 1:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Could you please provide a full and complete factual description of the
Code Pink conduct?  I need to understand how it is analogous, in
concrete, factual terms, with the behavior of the Phelps group.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Esenberg,
Richard
Sent: Friday, November 02, 2007 9:20 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

As others have suggested, I think it goes like this. It seems quite
possible to suppose that military families will be offended by
demonstrators, either, as with Code Pink, outside a military hospital
(or, say at a military funeral), who suggest that their loved ones were
wounded or killed in vain. Heck, we don't even have to speculate because
news reports about those demonstrations reflected that families and
servicemen were mightily offended.

If you want to say that there ought to be some rule that requires some
level of nastiness that may not have been present at the Code Pink
demonstrations, it's not hard to imagine (there are ample real world
examples) that the demonstrators referred to soldiers as "baby killers"
or to those who sent them overseas as "war criminal."

Incidentally, I would be interested in references to studies showing
that violence and insult are not evenly distributed across the political
spectrum.

Rick Esenberg
Marquette University School of Law

From: [EMAIL PROTECTED]
[EMAIL PROTECTED] On Behalf Of Newsom Michael
[EMAIL PROTECTED]
Sent: Thursday, November 01, 2007 5:58 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Could you be a bit more specific about the factual context of the Code
Pink demonstrations?  How is it analogous to Westboro's conduct?

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Esenberg,
Richard
Sent: Thursday, November 01, 2007 12:48 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Well, it certainly seems outrageous to me but I suspect that other
reasonable people might regard the Code Pink demonstrations outside the
Walter Reed Army Medical Center as, if not equally outrageous, at least
comparable in their tendency to upset those who are presumably in a
place in which there is some expectation of privacy and repose. (Don't
we regard hospitals, like funerals, as places in which a certain decorum
can be expected?)

A st

RE: IIED and vagueness

[Esenberg, Richard]

Maybe the Code Pink demonstrators were further away than the Phelps group (who 
I think were 1000 feet from the grave site.) On the other hand, I assume that 
they were seen by family members and soldiers because we know that family 
members and soldiers were offended.

Besides, it is easy to imagine that sharply worded and potentially offensive 
protests aimed at sympathetic people would be so close that these sympathetic 
people (e.g., mourners or wounded veterans) could not avoid it. What principle 
separates what is actionable from what is not while respecting first amendment 
values? Is it mere proximity? And, if it is, doesn't that have to be defined 
beforehand rather than resolved by a jury after the fact?

The idea that this is targeted at individuals in a way that other protests are 
not is attractive but ultimately unsatisfying. Phelps is using families of 
deceased soldiers as props. He's not directing the protest at them personally.

While you could argue that the fact that there are not other funerals going on 
makes it more likely that the attendees at the targeted funeral will be 
personally offended, I am not sure that this distinguishes abortion protests or 
labor picketing. The protesters may have a wider audience in mind, but the 
folks on the scene are not going to be terribly comforted by that.

Part of the struggle here seems to be a sense that Phelps is sui generis. He 
literally has no friends anywhere. People on the religious right - even those 
who oppose same sex marriage and other laws seen as beneficial to gays and 
lesbians - can't stand him and that revulsion seems to go beyond simple 
considerations of political strategy. But does that undercut or underscore the 
need for first amendment protection?

There is also a sense - particularly if you have ever seen these idiots (and, 
as I mentioned, they picketed my church once and I had to stand outside and 
direct people around them) that this isn't about politics but reflects a 
certain psychopathology. They are scary not simply because what they say is 
disgusting but because there is a Night of the Living Dead quality about them.

But what legal principle could distinguish that?


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]





From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet
Sent: Friday, November 02, 2007 9:26 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

If the actual spatial relation between the location of the activity and those 
who are offended by it matters, it might be helpful for people to look at a map 
of Walter Reed Hospital, where the Code Pink demonstratins occurred, and 
compare the location to that in the funeral case.  (The Code Pink 
demonstratinos occurred, as I recall, at the Georgia Avenue entrance to the 
Walter Reed grounds, and if so, they occurred at a location rather far removed 
from any building in which resturned soldiers stayed as a regular matter; the 
entrance is a bit closer to some "outbuildings" on the grounds, the functions 
of which I am ignorant.)


Mark Tushnet

William Nelson Cromwell Professor of Law

Harvard Law School

Areeda 223

Cambridge, MA  02138



ph:  617-496-4451 (office); 202-374-9571 (mobile)


From: [EMAIL PROTECTED] on behalf of Esenberg, Richard
Sent: Fri 11/2/2007 9:20 AM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

As others have suggested, I think it goes like this. It seems quite possible to 
suppose that military families will be offended by demonstrators, either, as 
with Code Pink, outside a military hospital (or, say at a military funeral), 
who suggest that their loved ones were wounded or killed in vain. Heck, we 
don't even have to speculate because news reports about those demonstrations 
reflected that families and servicemen were mightily offended.

If you want to say that there ought to be some rule that requires some level of 
nastiness that may not have been present at the Code Pink demonstrations, it's 
not hard to imagine (there are ample real world examples) that the 
demonstrators referred to soldiers as "baby killers" or to those who sent them 
overseas as "war criminal."

Incidentally, I would be interested in references to studies showing that 
violence and insult are not evenly distributed across the political spectrum.

Rick Esenberg
Marquette University School of Law

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL 
PROTECTED]
Sent: Thursday, November 01, 2007 5:58 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Could you be a bit more specific about the factual context of the Code
Pink de

RE: IIED and vagueness

[Esenberg, Richard]

As others have suggested, I think it goes like this. It seems quite possible to 
suppose that military families will be offended by demonstrators, either, as 
with Code Pink, outside a military hospital (or, say at a military funeral), 
who suggest that their loved ones were wounded or killed in vain. Heck, we 
don't even have to speculate because news reports about those demonstrations 
reflected that families and servicemen were mightily offended.

If you want to say that there ought to be some rule that requires some level of 
nastiness that may not have been present at the Code Pink demonstrations, it's 
not hard to imagine (there are ample real world examples) that the 
demonstrators referred to soldiers as "baby killers" or to those who sent them 
overseas as "war criminal."

Incidentally, I would be interested in references to studies showing that 
violence and insult are not evenly distributed across the political spectrum.

Rick Esenberg
Marquette University School of Law

From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL 
PROTECTED]
Sent: Thursday, November 01, 2007 5:58 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Could you be a bit more specific about the factual context of the Code
Pink demonstrations?  How is it analogous to Westboro's conduct?

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Esenberg,
Richard
Sent: Thursday, November 01, 2007 12:48 PM
To: Law & Religion issues for Law Academics
Subject: RE: IIED and vagueness

Well, it certainly seems outrageous to me but I suspect that other
reasonable people might regard the Code Pink demonstrations outside the
Walter Reed Army Medical Center as, if not equally outrageous, at least
comparable in their tendency to upset those who are presumably in a
place in which there is some expectation of privacy and repose. (Don't
we regard hospitals, like funerals, as places in which a certain decorum
can be expected?)

A standard that would potentially restrict such protests seems
problematic and, again, it seems even more troubling to make it, as
seems to have been done here, a jury question.


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Thursday, November 01, 2007 11:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: IIED and vagueness

What makes it outrageous is not the content per se, but the content in
the context.  And doesn't the old workhorse, our erstwhile objective
standard of "outrageous to a reasonable person", save it from
unconstitutional vagueness?

Steve

On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> Isn't a restriction on "speech that is outrageous, and
inflicts
> severe emotional distress, where the speaker knows there's a high
> probability that severe emotional distress will be inflicted"
> unconstitutionally vague, suffering from all three of the Grayned
> problems (risk of viewpoint discrimination in enforcement, difficulty
of
> telling when one is complying with the law, and resulting deterrent
> effect)?  "'Outrageousness' in the area of political and social
> discourse has an inherent subjectiveness about it which would allow a
> jury to impose liability on the basis of the jurors' tastes or views,
or
> perhaps on the basis of their dislike of a particular expression."  (I
> also think it's unconstitutionally even setting aside the vagueness,
but
> as in many instances the vagueness is such an important problem that
it
> makes it hard to do the rest of the constitutional analysis, since
it's
> so hard to tell just what speech the law will restrict, even if
limited
> to cases where plaintiffs are private figures.)
>
> Eugene


--
Prof. Steven Jamar
Howard University School of Law
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Please note that messages sent t

RE: IIED and vagueness

[Esenberg, Richard]

Well, it certainly seems outrageous to me but I suspect that other reasonable 
people might regard the Code Pink demonstrations outside the Walter Reed Army 
Medical Center as, if not equally outrageous, at least comparable in their 
tendency to upset those who are presumably in a place in which there is some 
expectation of privacy and repose. (Don't we regard hospitals, like funerals, 
as places in which a certain decorum can be expected?)

A standard that would potentially restrict such protests seems problematic and, 
again, it seems even more troubling to make it, as seems to have been done 
here, a jury question.


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]



-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Thursday, November 01, 2007 11:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: IIED and vagueness

What makes it outrageous is not the content per se, but the content in
the context.  And doesn't the old workhorse, our erstwhile objective
standard of "outrageous to a reasonable person", save it from
unconstitutional vagueness?

Steve

On 11/1/07, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
> Isn't a restriction on "speech that is outrageous, and inflicts
> severe emotional distress, where the speaker knows there's a high
> probability that severe emotional distress will be inflicted"
> unconstitutionally vague, suffering from all three of the Grayned
> problems (risk of viewpoint discrimination in enforcement, difficulty of
> telling when one is complying with the law, and resulting deterrent
> effect)?  "'Outrageousness' in the area of political and social
> discourse has an inherent subjectiveness about it which would allow a
> jury to impose liability on the basis of the jurors' tastes or views, or
> perhaps on the basis of their dislike of a particular expression."  (I
> also think it's unconstitutionally even setting aside the vagueness, but
> as in many instances the vagueness is such an important problem that it
> makes it hard to do the rest of the constitutional analysis, since it's
> so hard to tell just what speech the law will restrict, even if limited
> to cases where plaintiffs are private figures.)
>
> Eugene


--
Prof. Steven Jamar
Howard University School of Law
___
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RE: Anti-gay church verdict

[Esenberg, Richard]

Certainly the claim must have been based on the content of the speech, but it 
may be a TPM argument that is claimed to make that content actionable. In that 
regard, I would be interested in knowing how the jury was instructed. Phelps 
and his merry band once picketed my church in downtown Milwaukee and they are 
vile in a way that's not safe for work, but the notion of a jury deciding, 
after the fact, that the TPM of speech was not reasonable is a bit troubling.

If that's not the case and the jury was simply asked to conclude whether this 
content was so outrageous to be actionable, I'm not sure that it's much better.


Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
[EMAIL PROTECTED]



From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, November 01, 2007 10:17 AM
To: Law & Religion issues for Law Academics
Subject: RE: Anti-gay church verdict

Yet surely the claim must have been based on the content of the speech as 
well as the time, place, and manner.  It's extremely unlikely that a jury would 
find friendly, neutral, or even respectfully disagreeing demonstrating outside 
a funeral to be "outrageous" enough to create severe emotional distress.  So 
under standard First Amendment doctrine, this is *not* a TPM restriction, any 
more than the restrictions in Carey v. Brown, Boos v. Barry, or a wide range of 
other cases were TPM restrictions -- it must be judged as the content-based 
restriction that it is.

Eugene


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Thursday, November 01, 2007 5:02 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Anti-gay church verdict

Tough call.  Hustler v. Falwell says that intentional infliction of emotional 
distress, when based on political speech, requires actual malice.  But there 
the IIED claim was based on the content of the speech.  Here, assuming the 
plaintiff's lawyer made a sensible jury argument, the IIED claim is based on 
time, place, and manner.  They could have said these things, but they could not 
disrupt a funeral while they said them.  A court could plausibly distinguish 
those cases if it chose.

Quoting Joel <[EMAIL PROTECTED]>:

> From:Father wins millions from war funeral pickets
> http://www.msnbc.msn.com/id/21566280/
>
>
>
> "The church members testified they are following their religious beliefs by
> spreading the message that soldiers are dying because America is too
> tolerant of homosexuality."
>
>
>
> "Attorneys for the church maintained in closing arguments Tuesday that the
> burial was a public event and that even abhorrent points of view are
> protected by the First Amendment, which guarantees freedom of speech and
> religion."
>
>
>
> Any thought on what the appellate court will do?
>
>
>
> Joel L. Sogol
>
> Attorney at Law
>
> 811 21st Avenue
>
> Tuscaloosa, Alabama  35401
>
> ph (205) 345-0966
>
> fx  (205) 345-0967
>
> [EMAIL PROTECTED]
>
>
>
> Ben Franklin observed that truth wins a fair fight -- which is why we have
> evidence rules in U.S. courts.
>
>
>
>


Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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