from:"Hillel Y. Levin"

Re: Bible classes in elementary schools

2017-04-24 Thread Hillel Y. Levin

utional. The political demand is to teach it as
> Sunday School.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu
> <javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');> [
> religionlaw-boun...@lists.ucla.edu
> <javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>] on
> behalf of Marty Lederman [martin.leder...@law.georgetown.edu
> <javascript:_e(%7B%7D,'cvml','martin.leder...@law.georgetown.edu');>]
>
>
> *Sent:* Sunday, April 23, 2017 9:49 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Bible classes in elementary schools
>
> Any possibility this
> <https://www.washingtonpost.com/local/education/a-popular-public-school-bible-class-in-west-virginia-faces-legal-challenge/2017/04/23/14c50460-2144-11e7-ad74-3a742a6e93a7_story.html>
>  is constitutional?
>
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-- 
Hillel Y. Levin
Associate Professor
University of Georgia School of Law
Director, Georgia Law in Atlanta
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Religious objections to deportation policies

2017-03-28 Thread Hillel Y. Levin

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-- 
Hillel Y. Levin
Associate Professor
University of Georgia School of Law
Director, Georgia Law in Atlanta
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Religious Test for Immigration/Refugee--Lawsuits?

2017-01-30 Thread Hillel Y. Levin

Is anyone aware of or involved in lawsuits that have been filed challenging
the distinction between Christian and Muslim refugees/immigrants in Trump's
EOs on Estab Clause grounds?

-- 
Hillel Y. Levin
Associate Professor
University of Georgia School of Law
Director, Georgia Law in Atlanta
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
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Re: Jewish law, women's bodies, and accommodations

2016-06-07 Thread Hillel Y. Levin

I confess I'm stymied by the objection Meir has articulated to my
offending
 paragraph. Jewish laws regarding modesty
surely *must*
 reflect certain assumptions about women's bodies
. Why else would there be a religious law concerning mixed swimming (or
women singing in front of men, or showing their elbows or knees, or in the
case of married women, their hair, and so forth?). You'll note that Meir
added a key word in brackets--that the assumptions I attribute to the law
are "negative"--that was not present in my original. Is it good form to
criticize someone for things
s/
he did not say? I was taught not.

I made no claim as to what those assumptions are, and this may well be open
to debate. But *that* there are assumptions underlying this religious
principle is, indeed, beyond dispute.

Incidentally, I was taught in my roughly 20 years in various yeshivot that
these assumptions relate to women's bodies being sexual,
 and therefore
that they 
should
 be covered when men are present
 (except in the case of a spouse, and then only sometimes). Even in saying
that, I am *still *not making a value-laden claim about the
assumption--true, false, positive, negative, or otherwise. In any event, I
have no objection to a co-religionist (or anyone else) challenging this
account of the underlying assumption or framing it otherwise
. I continue to think, as a normative matter
 at least (
I guess what Eugene means by "as a basis for political opposition"), that
assumptions

--whatever they are
, and whether their source is religious or not
-- about women's bodies
 in particular that relate to sexual modesty
should not be reflected
 in and reinforced
by
 the law.

To be sure, this does not respond to the question both Eugene and Meir
raise: should judges take into account
an
 underlying
, embedded
assumption/message
?

I'm not sure what the answer to that question is, but at the very least we
do know that judges
do
 take into account in estab clause cases the question of what a reasonable
observer would likely understand
--
how s/he would interpret the gov action. To get at that question, judges
consider history
 and
 social context. That might distinguish this case from Eugene's Wiccan
example
--the history and social context may be different enough to matter
. In the end, though, I'm not sure how this issue cuts in this case
, and I don't have religion on the question.

In any event, I'm not
convinced
 there's an
Establishment Clause
problem here under the third party harms analysis. Random men (and women,
boys, 
girls
. . . .
) are excluded from the pool for all kinds of reasons at many times of the
day, as Chris pointed out
--to accommodate water polo, those learning to swim, learners with
disabilities, adult lap swimmers, seniors, etc
. Exclusion from the pool
for the sake of others 
is just one of those things that this society has accepted for itself.
 At the very least, it suggests that the third party harm here is minimal
indeed, since this society apparently tolerates that harm (exclusion from
the pool) in spades. Recall that the problem with the statute in *Thornton
v Caldor*, was that *only* religious people were permitted to impose on
third parties; had the law allowed *everyone* to take off on the day of
their choosing, or perhaps had it even allowed religious accommodations
among a menu of other accommodations--it would not have violated the
Establishment Clause. This is true even though a particular person choosing
to take off a particular day--and thus imposing on someone else--may well
be motivated by religious beliefs.

As several have noted or implied, the swimming pool case presents obvious
Equal Protection problems, more so than it does Establishment Clause issues
(though I do not discount the possibility of an EC violation).

Indeed, the fact that there are no "men's only" hours makes this an *easy* EP
case. "Separate but equal" may be acceptable in some gender segregation
cases under EP. Separate-gender bathrooms are presumptively permissible
under EP; separate gendered schools may be tolerated in some circumstances.
But offering *only* women's bathrooms or *only* boys' schools isn't an
option, right? If they added men's only swim hours, the EP case becomes
more difficult. My instinct (and it is only that) is that it would still be
unconstitutional; but at a minimum the EP clause requires *at least* formal
equality.

On Monday, June 6, 2016, Meir Katz  wrote:

> Hillel's assumption that "Jewish laws relating to sexual modesty have
> embedded within them, and reinforce, certain [negative] assumptions and
> norms about women's and girls' bodies [that are contrary to public policy]"
> is both incorrect and not widely held by those who observe those laws. The
> laws have a rather different purpose, one certainly not contrary to public
> policy, that was shared broadly by civil society until the 1950s. I would
> be interested to

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

2015-04-06 Thread Hillel Y. Levin

. Such a power in the state,
 if generalized, will eventually lead to a broader authoritarian result that
 few of us on this list - probably none - will like. I specifically said
 that Chip would not favor such an authoritarian result.
 
  With regard to the letter, I will add only a few comments to Doug's.
 
  The Supreme Court did copy the non-profit accommodation in the relevant
 sense, as did Justice Kennedy in his concurrence: [T]here is an existing,
 recognized, workable, and already-implemented framework to provide
 coverage. I think it was clear that the Court was requiring the
 administration to give the same accommodation to Hobby Lobby and the
 Greens. It was also clear, I think, that the administration had not yet
 implemented it, else there would have been no need for the Court to rule
 against the administration.
 
  I would have hoped that there might be more voices from those on the
 other side of this issue to temper the overstatements made by politicians
 and commentators with regard to the likely effect of a state RFRA.
 
  Mark
 
  Mark S. Scarberry
  Professor of Law
  Pepperdine Univ. School of Law
 
  -Original Message-
  From: religionlaw-boun...@lists.ucla.edu javascript:; [mailto:
 religionlaw-boun...@lists.ucla.edu javascript:;] On Behalf Of Graber,
 Mark
  Sent: Monday, April 06, 2015 3:48 PM
  To: Law  Religion issues for Law Academics
  Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights
 
  May I suggest that we return to the decorum that has more often than not
 characterized this list.  The best conclusion I can draw from the various
 emails is that the issues are more difficult to many of us than they appear
 to others and that RFRA is the classic example of a statue drawn with some
 examples in mind that is now being applied to circumstances some people
 claim is nearly identical to the original paradigm cases and some think is
 quite different.
 
  MAG
 
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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Anti-discrimination, legislative compromise, and strict scrutiny

2015-02-25 Thread Hillel Y. Levin

Thanks Doug.

Would the same logic apply to beard length regulations on city police
forces? Suppose there was a legislative (or reasoned department) judgment
that well-kept beards are an acceptable exception to the general clean
shaven policy, and that in order to effectuate that judgment, they provide
that beards must be no longer than one inch. This will be true for people
with skin conditions, people with religious reasons for facial hair growth,
and people who enjoy the warmth or look of the beard. There is thus no
value judgment whatsoever, and an admittedly arbitrary line is drawn in
order to prevent members of the force from looking disheveled.

Along comes a religious objector who claims that his beard must be 1.25
inches long, or one who claims that his religion prohibits him from ever
shaving. (Assume sincerity, and indeed, there are such religious practices.)

Does strict scrutiny apply? Does it pass strict scrutiny?

On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock dlayc...@virginia.edu
wrote:

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



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Wednesday, February 25, 2015 5:53 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Anti-discrimination, legislative compromise, and strict
 scrutiny



 Friends:



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



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



 Now suppose that a religious objector who did not meet the criteria for
 the religious accommodation or categorical exception sued under the FEC.
 Given the exceptions built into the compromise legislation, would strict
 scrutiny automatically apply, under the theory that with the compromise
 legislation, the law is not generally applicable? And if so, how would the
 case come out, given that the compromise legislation necessarily drew
 somewhat arbitrary lines?



 I am aware that the question of what triggers strict scrutiny is subject
 to considerable debate in the literature, and that those who require a
 showing of animus to trigger Lukumi's strict scrutiny would not find any
 here. But for those who do not believe that animus is required, how would
 this come out?



 My sense is that this difficulty might stand in the way of any legislative
 compromise.



 --
 Hillel Y. Levin
 Associate Professor

 University of Georgia
 School of Law
 120 Herty Dr.
 Athens, GA 30602
 (678) 641-7452
 hle...@uga.edu
 hillelle...@gmail.com
 SSRN Author Page:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645



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Re: Anti-discrimination, legislative compromise, and strict scrutiny

2015-02-25 Thread Hillel Y. Levin

I'm not sure I agree that it is a rule with no exceptions. But let's assume
you are right about that. Let's also assume that a state RFRA, and thus
strict scrutiny, applies. The asserted compelling interest is having a
police force that appears professional and approachable, and does not
appear disheveled, and recognizing that an arbitrary line must be drawn.
How does this fare under strict scrutiny? Could any rule limiting beard
length pass strict scrutiny?

And what about my initial question. Assume there is a RFRA in place in the
state. Can an arbitrary limit on the size of the business comport with
strict scrutiny?

On Wed, Feb 25, 2015 at 10:47 AM, Doug Laycock dlayc...@virginia.edu
wrote:

 That’s not even a rule with exceptions. As you describe it, it’s a
 generally applicable rule that no beard can be longer than one inch. If
 it’s enforced even handedly against religious and secular beards, i.e.,
 enforced as written, it is insulated from attack under the Free Exercise
 Clause, even if the rule is entirely pointless and unnecessary, or serves
 only the most modest of aesthetic interests. That of course is the problem
 with *Smith*.



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Wednesday, February 25, 2015 10:33 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Anti-discrimination, legislative compromise, and strict
 scrutiny



 Thanks Doug.



 Would the same logic apply to beard length regulations on city police
 forces? Suppose there was a legislative (or reasoned department) judgment
 that well-kept beards are an acceptable exception to the general clean
 shaven policy, and that in order to effectuate that judgment, they provide
 that beards must be no longer than one inch. This will be true for people
 with skin conditions, people with religious reasons for facial hair growth,
 and people who enjoy the warmth or look of the beard. There is thus no
 value judgment whatsoever, and an admittedly arbitrary line is drawn in
 order to prevent members of the force from looking disheveled.



 Along comes a religious objector who claims that his beard must be 1.25
 inches long, or one who claims that his religion prohibits him from ever
 shaving. (Assume sincerity, and indeed, there are such religious practices.)



 Does strict scrutiny apply? Does it pass strict scrutiny?



 On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock dlayc...@virginia.edu
 wrote:

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



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Wednesday, February 25, 2015 5:53 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Anti-discrimination, legislative compromise, and strict
 scrutiny



 Friends:



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



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

Anti-discrimination, legislative compromise, and strict scrutiny

2015-02-25 Thread Hillel Y. Levin

Friends:

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

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

Now suppose that a religious objector who did not meet the criteria for the
religious accommodation or categorical exception sued under the FEC. Given
the exceptions built into the compromise legislation, would strict scrutiny
automatically apply, under the theory that with the compromise legislation,
the law is not generally applicable? And if so, how would the case come
out, given that the compromise legislation necessarily drew
somewhat arbitrary lines?

I am aware that the question of what triggers strict scrutiny is subject to
considerable debate in the literature, and that those who require a showing
of animus to trigger Lukumi's strict scrutiny would not find any here. But
for those who do not believe that animus is required, how would this come
out?

My sense is that this difficulty might stand in the way of any legislative
compromise.


-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: The racist prostitute hypothetical

2015-02-14 Thread Hillel Y. Levin

Brad:

The distinction you see between same-sex relationships and interracial
relationships makes sense to *you*. It surely does not make sense to
someone who opposes interracial marriages on religious grounds.

On Sat, Feb 14, 2015 at 7:41 PM, Brad Pardee bp51...@windstream.net wrote:

 Let me clearer.  There is a difference between saying you won't serve
 certain people and saying you won't be a participant in a certain event.  A
 wedding cake is part and parcel of the event, same as providing the floral
 settings and taking the photographs, although I realize don't agree with
 that.  That's why the baker, florist, or photographer should have the
 freedom to choose not to be a part of events that their faith forbids them
 to take part in.  If the condition of their remaining in business is that
 they abandon the tenets of their faith, then they don't have any religious
 freedom that has any meaning.



 The problem with comparing a same sex wedding with an interracial wedding
 is that the color of a person's skin is no different than the color of a
 person's hair or the color of a person's eyes.  I don't think anybody would
 say that the difference in genders is a strictly cosmetic distinction.



 Brad



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Saturday, February 14, 2015 11:27 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Refusing to bake a wedding cake for [interracial] couples is about not
 taking part in a specific event.  Refusing to bake bread for someone who is
 [black]  is about not serving a specific type of person.  Two very
 different things.



 Brad -- with those bracketed alterations, do you stick with what I
 perceive to be your view that the baker should have a right to refuse to
 bake the wedding cake?

 If not, I would suggest that bakers making wedding cakes for the general
 public do not fall within the intimate sphere of privacy that Eugene is
 trying to identify with his hypothetical. Like Eugene, I think for-profit
 ministers and freelance writers present more difficult cases, though I
 disagree with him that most wedding photographer situations present
 difficult cases.

 - Jim

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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
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Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
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Re: Homeschooling, vaccinations, and Yoder

2015-02-02 Thread Hillel Y. Levin

I'm skeptical that state legislators (for the most part) have formed any
informed views about the constitutionality one way or another. I think they
are motivated by the things legislators tend to be motivated by:
constituents, focused interest groups, the path of least resistance,
calculations of political cost, political priorities, what they understand
to be good policy, and what they think the courts might do based on what
the interest groups tell them. Paul is right that they *could* form an
independent view based on their own research and reading of the state and
federal constitutions, but i sincerely doubt they *have*.

The California case I previously referenced didn't explicitly read Pierce
and Yoder to categorically allow home schooling, but it came very close,
saying that to do otherwise would raise grave constitutional questions.
http://californiahomeschool.net/howTo/B192878August8.pdf

The Michigan Supreme Court construed Yoder and Smith to give a free
exercise right to homeschool under the US constitution.
http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html



On Mon, Feb 2, 2015 at 4:44 PM, Ira Lupu icl...@law.gwu.edu wrote:

 The idea that state legislators, faced with home schooling questions, are
 reflecting on the best reading of Pierce, Yoder, or the Constitution (and
 which parts of that would they be reading?) strikes me as spectacularly
 fanciful.  If they cared about what legal research disclosed (rather than
 what their constituents, supporters, or the Board of Ed wants, and why),
 they would know that many decisions have interpreted Pierce and Yoder as
 NOT requiring a right of home schooling, and that no decisions have held
 the opposite.  They might be attentive to what other states have done, but
 not to any constitution-based reasons that might explain that.

 On Mon, Feb 2, 2015 at 4:34 PM, Paul Horwitz phorw...@hotmail.com wrote:

 Of course, it is also possible that these legislators believe that it
 *is* unconstitutional to heavily regulate homeschooling, either because
 it's the best reading of Yoder and Pierce going forward (and given the
 premise that those decisions leave the point unresolved), or because they
 are independently obliged to read and follow the Constitution and believe
 this is what its best reading demands. Even if one believes that the Court
 has the last word on constitutional questions, no one need believe it has
 the only word.

 Sent from my iPad

 On Feb 2, 2015, at 2:25 PM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 But the Court's decisions in Yoder and Pierce v. Society of Sisters play
 an important role too. Together, these cases leave the question of whether
 the state can prohibit or heavily regulate home schooling open, and they
 suggest (though do not explicitly find) a parental right of some sort. The
 pro-homeschooling groups make use of these cases when they lobby, leaving
 regulators with the impression that it might be unconstitutional to heavily
 regulate homeschooling. As a result--together with the political economy on
 the matter and the practical questions about how the state meaningfully
 *could* regulate homeschooling--they often throw their hands up and
 concede.


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 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Homeschooling, vaccinations, and Yoder

2015-02-02 Thread Hillel Y. Levin

...@albanylaw.edu

 www.paulfinkelman.com

 *
 --

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

 Marty,

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

 I also agree with # 2.

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

 Such a regime would, I believe, be constitutional.  But it does raise at
 least a question for folks who (a) argue that religion is not special,
 (b) it is generally unfair to limit exemption regimes to folks with
 religious motives, and (c) the best remedy to such unfairness should
 generally be to level up to include deep non-religious beliefs rather
 than level down to eliminate exemptions entirely.

 Perry

 On 02/01/2015 10:38 pm, Marty Lederman wrote:

 I'm a bit confused as to which question Perry and Sandy (and Doug?) are
 discussing.  To break it down a bit for clarification:

 1.  It would be perfectly constitutional for the state to require everyone
 to be vaccinated; a fortiori, vaccination can be made a condition of
 attending school.  That's basically what the Second Circuit case is about;
 and of course it's correct.

 2.  It would also be perfectly constitutional for the state to exempt any
 children whose parents have a personal objection to immunization,
 religious or otherwise. The only question as to those exemption laws is one
 of policy -- and I'd hope that recent events cause state legislatures to
 seriously consider repealing such exemptions.

 3.  But if a state chooses to exempt people only for religious reasons,
 that raises not only a policy question (which is the one I intended to
 raise in starting this thread -- should other states follow MS and WV in
 refusing to grant even religious exemptions?), but also a serious
 Establishment Clause question, in light of the third-party burdens (those
 borne by the children who are not immunized as well as the children who are
 made more susceptible to disease).  I haven't checked in a while, but I
 believe no court has ever held such religious exemptions unconstitutional
 except where they discriminate among religions.  I am inclined to say that
 they are unconstitutional even where not discriminatory; but the case law
 does not, as far as I know, yet support that view.


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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Homeschooling, vaccinations, and Yoder

2015-02-02 Thread Hillel Y. Levin

The California case is (on its own terms) a terrible statutory
interpretation decision. It came about after the same court initially
interpreted the california statute to prohibit homeschooling. There was a
massive public outcry and a huge amount of political pressure brought on
the court. So the court reheard the case and used this convoluted
constitutional avoidance argument to find in favor of homeschooling. If I
recall correctly, the family in this case hadn't really made a credible
free exercise type claim!

If anyone wants the earlier ruling, I've got it (but I can't send it on the
listserv). And I do my best to rehabilitate the court's second opinion in
my article here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677689
I think I offer a better defense of the court's decision than the
constitutional avoidance claim, but I'm not sure it is actually convincing.

On Mon, Feb 2, 2015 at 5:49 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

Very interesting, and thanks very much!  The Michigan case
 does indeed rely on *Yoder*, in holding that the statutory requirement
 that the homeschooling parents be certified instructors was
 unconstitutional, as to parents who had a religious objection to providing
 certified instructors.  (“Because the DeJonges' faith professes ‘that
 parents are the ones that are responsible to God for the education of their
 children,’ they passionately believe that utilizing a state-certified
 teacher is sinful.”)  The California decision is very odd, though, and
 makes me wonder how it fits with the general body of religious exemption
 law:



 The sole United States Supreme Court case directly addressing home
 education concluded that members of the Old Order Amish religion possessed
 a constitutional right to exempt their children from Wisconsin’s compulsory
 education law after the eighth grade. (Wisconsin v. Yoder (1972) 406 U.S.
 205 (Yoder).) While the facts in Yoder are clearly different from the facts
 in this case, we recognize that, if we interpret California’s compulsory
 education law to prohibit home schools unless taught by a credentialed
 teacher, California’s statutory scheme would present the same
 constitutional difficulties as the scheme in Yoder if *applied to
 similarly-situated parents* to the Old Order Amish. In other words, if
 the Yoder parents were subject to California’s compulsory education law
 (and without taking into account any issue with respect to a required
 curriculum – see fn. 35, post), the law would be unconstitutional as to
 them if home schools were not private schools, but the constitutional
 difficulty would disappear under the interpretation that home schools may
 be private schools. As such, the interpretation we adopt avoids the
 constitutional difficulty.



 The point of religious exemption law, as I understand it, is
 that a generally applicable statute can be generally constitutional, but
 courts should carve out religious exemptions for the rare cases when a
 religious exemption is both claimed and justified.  Reading a statute to
 avoid constitutional problems in the rare case brought by
 “similarly-situated parents to the Old Order Amish” – as opposed to just
 saying that those similarly-situated parents would get religious exemptions
 if they claimed them – seems to be a misreading of *Yoder *and religious
 exemption law more broadly.  Or am I mistaken on this?



Eugene









 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Monday, February 02, 2015 2:15 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Homeschooling, vaccinations, and Yoder



 I'm skeptical that state legislators (for the most part) have formed any
 informed views about the constitutionality one way or another. I think they
 are motivated by the things legislators tend to be motivated by:
 constituents, focused interest groups, the path of least resistance,
 calculations of political cost, political priorities, what they understand
 to be good policy, and what they think the courts might do based on what
 the interest groups tell them. Paul is right that they *could* form an
 independent view based on their own research and reading of the state and
 federal constitutions, but i sincerely doubt they *have*.



 The California case I previously referenced didn't explicitly read Pierce
 and Yoder to categorically allow home schooling, but it came very close,
 saying that to do otherwise would raise grave constitutional questions.
 http://californiahomeschool.net/howTo/B192878August8.pdf



 The Michigan Supreme Court construed Yoder and Smith to give a free
 exercise right to homeschool under the US constitution.
 http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html





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 To subscribe

Re: Homeschooling, vaccinations, and Yoder

2015-02-02 Thread Hillel Y. Levin

, in the constitutional interpretive
 community.







 --
 From: hillelle...@gmail.com
 Date: Mon, 2 Feb 2015 17:14:40 -0500
 Subject: Re: Homeschooling, vaccinations, and Yoder
 To: religionlaw@lists.ucla.edu

 I'm skeptical that state legislators (for the most part) have formed any
 informed views about the constitutionality one way or another. I think they
 are motivated by the things legislators tend to be motivated by:
 constituents, focused interest groups, the path of least resistance,
 calculations of political cost, political priorities, what they understand
 to be good policy, and what they think the courts might do based on what
 the interest groups tell them. Paul is right that they *could* form an
 independent view based on their own research and reading of the state and
 federal constitutions, but i sincerely doubt they *have*.

 The California case I previously referenced didn't explicitly read Pierce
 and Yoder to categorically allow home schooling, but it came very close,
 saying that to do otherwise would raise grave constitutional questions.
 http://californiahomeschool.net/howTo/B192878August8.pdf

 The Michigan Supreme Court construed Yoder and Smith to give a free
 exercise right to homeschool under the US constitution.
 http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html





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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Little Sisters question

2014-07-01 Thread Hillel Y. Levin

Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever
else might object to the certification requirement (including, I guess,
Hobby Lobby, if the agency takes the Court's invitation to offer a similar
accommodation to for-profits. (As has been noted, the *Hobby Lobby *decision
may not make such a future holding likely, but it certainly does not
foreclose the possibility.)

What could the government then do to ensure coverage of these forms of
contraception (short of covering them directly, which seems politically
untenable)?

Four example, could it promulgate a rule as follows:

   - An employer that declines to provide such coverage for religious
   reasons must alert employees;
   - any employee may then file a form with the federal government (or the
   insurance company) attesting that the employer's plan will not cover the
   relevant contraception;
   - this notification from any employee then triggers the requirement that
   the insurance company provide coverage at no cost to all employees covered
   by the plan.

Would this satisfy these religious employers? The difference between this
and the current certification regime is that the employer doesn't file
anything with the government; it merely provides information to the
employees. Any employee can then decide what to do with that
information--i.e. whether or not to file for coverage.

I understand that this imposes an additional burden on at least one
employee at the company to file the form. (And this rule is not what I'd
prefer.) But as a practical matter, it would provide an avenue for the
contraceptive coverage, and I imagine that some watchdog group could help
employees navigate this.





-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Hobby Lobby Question

2014-06-30 Thread Hillel Y. Levin

As we are all digesting the Hobby Lobby decision, let me ask a question.
The court suggests that a less restrictive means would be that the gov't
provides the contraceptives directly (similar to how it handles non-profit
objectors). What kind of government action would it take to institute such
a program? A new statute? A new regulation? An interpretive rule? Something
else?

-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Divisiveness

2014-06-09 Thread Hillel Y. Levin


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 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg



-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Simple Hobby Lobby question

2014-06-09 Thread Hillel Y. Levin

Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby
(whether RFRA applies to corporations)? [T]he words “person” and “whoever”
include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.

Are the two sides really just arguing about whether [RFRA's] context
indicates otherwise  (1 USC 1) sufficiently to overcome this strong
definitional statement?

If so, much as I'd personally like for Hobby Lobby to lose this case, I'd
think that the on this question at least, the plaintiffs have to win. After
all, we have a strong statutory definition, with at best equivocal
contextual evidence to the contrary.

What am I missing? Are there cases dealing with the context language in 1
USC 1?
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Re: Divisiveness

2014-06-09 Thread Hillel Y. Levin

Chip:

I am in total agreement of your analysis, except that I think there is a
third way. That would be for legislatures to consider religious exemptions
when they enact individual laws (as they did before Smith, and after as
well). The results would still be inconsistent over time ((1) sometimes the
legislature will grant an exception; sometimes it won't; and (2) courts
will still have to resolve disputes on the margins), but at least they
would have a majoritarian pedigree on the whole.

We tolerate all kinds of legislative inconsistency because we understand
that political interests change over time, issues that seem similar may
appear different at the time of enactment, lobbying groups gain and lose
power, the legislators themselves change over time, and so on. We don't
demand consistency of legislators the same way we do of courts. Legislators
are allowed to be inconsistent (within some broad due process/equality
boundaries, I suppose).

We could still quibble about the role of courts in this system. They'll
still have to resolve some kinds of disputes, no doubt. Which side should
they err on? Should their guiding principle be to force majoritarian
engagement? Reverse the burden of legislative inertia? Etc. But at least we
would have legislative guidance beyond do good stuff when it comes to
legislative exceptions, which is what RFRA yields. This abdication of
policy-making responsibility by legislators is indefensible.

Eugene can correct me if I'm mistaken, but I think his proposed common-law
approach to religious exceptions points in this direction.







On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote:

 It's a very old lesson.  Legislators support vague delegations aimed at
 some general good (clean air, workplace safety, endangered species), and
 claim political credit for doing so.  Then they (or their successors) sit
 back and criticize agencies and courts that have to apply those vague
 standards to specific facts.  Choices made from outside the veil of
 ignorance are inevitably much more difficult than those made from behind it.

 But I am making a further point.  The context of religious exemptions --
 because of all the variations among faiths (beliefs and practices) and all
 the variations among regulatory or other government contexts in which
 conflicts may arise, is uniquely vulnerable to the problem of
 irreconcilable inconsistency over time.  We can have a regime of no
 exemptions under these kind of general standards, or a regime of ad hoc, we
 know it when we see it, all things considered, interest-balancing
 exemptions (that is, a regime that will appear lawless when scrutinized
 over time).  I don't think there is any other choice.  RFRA represents the
 latter choice, but (especially in a case made prominent by its culture war
 salience) the judicial outcome will inevitably be seen as an act of bad
 faith by the losers (whichever side that is).


 On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 What's ironic to me is that the same legislators (I.e. All of them) who
 attack the courts for overreaching and making policy-decisions chose to
 bestow immense policy-making power on those same courts through RFRA.
 There's a legislative process lesson in there somewhere.


 On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote:

 It is worth recalling that federal RFRA itself was anything but
 divisive.  Au contraire.  It passed with overwhelming support from both
 parties, and wide support among civil rights and civil liberties groups
 (with Hobby Lobby under advisement, some of these groups are now running
 from RFRA like it was the plague).

 The problem now is not divisiveness, per se.  Like any controversial
 Supreme Court decision, some will hate it and others will love it.
  Inevitably, these folks will be divided by their disagreement.

 The problem is legitimacy.  Free exercise standards, pre-Smith, were
 incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and
 sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's
 concurrence).  RFRA codifies the regime of Sherbert-Yoder, but that has
 proven in the lower courts to be equally plastic at every turn.  What is a
 substantial burden, a compelling interest, a less restrictive means?  Does
 RFRA restore U.S. v Lee, including its dictum about commercial actors
 accepting relevant regulatory regimes?  Does it restore Braunfeld v. Brown?
  (See the Kagan -- Clement colloquy at oral argument about what RFRA
 restores.)

 The fussing over state RFRA's recently has reflected the same massive
 uncertainty over what they will be held to protect -- wedding vendor
 refusal to serve same sex couples?  Employer refusal to provide spousal
 benefits to same sex spouses of employees?  Let's just leave it to the
 courts (in these cases, state courts) is not reassuring to anyone.

 What I fear is that, whatever the outcome in Hobby Lobby, the losers
 will never

Re: Simple Hobby Lobby question

2014-06-09 Thread Hillel Y. Levin

Ah. Silly me. Thank you.


On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote:

 The question isn’t only whether Hobby Lobby (and other for-profit
 corporations that sell secular goods/services) are persons, but rather
 whether they are persons that “exercise religion.” If they are not
 exercising religion, then RFRA is not triggered, no matter how much
 personhood they have.



 On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

  Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby
 (whether RFRA applies to corporations)? [T]he words “person” and “whoever”
 include corporations, companies, associations, firms, partnerships,
 societies, and joint stock companies, as well as individuals.
 
  Are the two sides really just arguing about whether [RFRA's] context
 indicates otherwise  (1 USC 1) sufficiently to overcome this strong
 definitional statement?
 
  If so, much as I'd personally like for Hobby Lobby to lose this case,
 I'd think that the on this question at least, the plaintiffs have to win.
 After all, we have a strong statutory definition, with at best equivocal
 contextual evidence to the contrary.
 
  What am I missing? Are there cases dealing with the context language
 in 1 USC 1?
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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Divisiveness

2014-06-09 Thread Hillel Y. Levin

I think we are agreeing, but I'm not actually sure.

Consider the ADA. The ADA requires employers and businesses to make
reasonable accommodations. That's a very vague standard for courts to
apply. But I don't think that courts have been hopelessly inconsistent in
doing so.

Or consider exceptions to the ADA. If a proposed disability accommodation
would impose an undue hardship, the employer doesn't have to make the
accommodation. That's a fairly vague standard that courts must apply, but
it doesn't appear to me that in practice it has led to hopelessly
inconsistent results (the way RFRA has).

Perhaps the difference between the ADA and RFRA is that the legislature
developed a fairly careful scheme, considered lots of possible
applications, worked hard to give it some definition, and gave an agency
some authority in interpreting and applying it.

That's quite unlike RFRA, which is not specific to a particular
characteristic; offers essentially no guidance; and leaves it entirely to
the courts to sort out.

I'm suggesting that the ADA model (whether the ADA as a whole or, more
likely, the undue hardship exception) is better than the RFRA model. Let
religious lobbying groups (and their allies) lobby for religious exceptions
to general laws. When no one else's interests are affected (like Goldman
and his yarmulke, the Amish and their narrow social security exemption,
etc), such exceptions will readily be written into law. When other people's
rights are at stake, there will be a lobbying battle. Sometimes the
religious lobby will win; sometimes it will lose. It won't be consistent.
It will produce poor public policy sometimes. Sometimes the tradeoffs will
be ugly.

Such is life under a majoritarian regime.






On Mon, Jun 9, 2014 at 1:23 PM, Ira Lupu icl...@law.gwu.edu wrote:

 Legislative (or administrative) exemptions are not a third way of
 administering a generalized regime of exemptions under overarching
 standards like substantial burdens and compelling interests.  Legislative
 and administrative exemptions will be in particular contexts, and will lead
 to some degree of accountability on the part of those who make them. (In
 the administrative setting, exemptions may even produce a regime of
 reasonable consistency  - e.g., excused absences from class or exams for
 religious reasons).  But even legislative/administrative exemptions, if
 religion-specific, must meet constitutional criteria -- relieve
 religion-specific burdens, avoid sectarian preferences, and not impose
 significant costs on third parties.


 On Mon, Jun 9, 2014 at 12:59 PM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 Chip:

 I am in total agreement of your analysis, except that I think there is a
 third way. That would be for legislatures to consider religious exemptions
 when they enact individual laws (as they did before Smith, and after as
 well). The results would still be inconsistent over time ((1) sometimes the
 legislature will grant an exception; sometimes it won't; and (2) courts
 will still have to resolve disputes on the margins), but at least they
 would have a majoritarian pedigree on the whole.

 We tolerate all kinds of legislative inconsistency because we understand
 that political interests change over time, issues that seem similar may
 appear different at the time of enactment, lobbying groups gain and lose
 power, the legislators themselves change over time, and so on. We don't
 demand consistency of legislators the same way we do of courts. Legislators
 are allowed to be inconsistent (within some broad due process/equality
 boundaries, I suppose).

 We could still quibble about the role of courts in this system. They'll
 still have to resolve some kinds of disputes, no doubt. Which side should
 they err on? Should their guiding principle be to force majoritarian
 engagement? Reverse the burden of legislative inertia? Etc. But at least we
 would have legislative guidance beyond do good stuff when it comes to
 legislative exceptions, which is what RFRA yields. This abdication of
 policy-making responsibility by legislators is indefensible.

 Eugene can correct me if I'm mistaken, but I think his proposed
 common-law approach to religious exceptions points in this direction.







 On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote:

 It's a very old lesson.  Legislators support vague delegations aimed at
 some general good (clean air, workplace safety, endangered species), and
 claim political credit for doing so.  Then they (or their successors) sit
 back and criticize agencies and courts that have to apply those vague
 standards to specific facts.  Choices made from outside the veil of
 ignorance are inevitably much more difficult than those made from behind it.

 But I am making a further point.  The context of religious exemptions --
 because of all the variations among faiths (beliefs and practices) and all
 the variations among regulatory or other government contexts in which
 conflicts

Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

2014-06-08 Thread Hillel Y. Levin

Eugene:

Are you asking whether religion is a one way ratchet? Under at least one
reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are
(at least some kinds of) secular exceptions, then there must also be a
religious exception. But if there is a religious exception, must there also
be secular exceptions? And if so, what kinds of secular exceptions must
there be--those that rise to the level of conscientious objection status,
or others as well?

For what it is worth, I get an email from UGA each year reminding me that
it is university policy to accommodate (to the maximum degree possible,
whatever that means) religious students' ability to miss class for
religious observances. I do not get such an email regarding students who
miss class because their siblings are getting married, their pets are in
poor health, or their great aunts (who were like second mothers) died. What
to make of that?

On Saturday, June 7, 2014, Levinson, Sanford V slevin...@law.utexas.edu
wrote:

  I would always want to know the rationale and why it didn't apply to the
 religious person as well. But if ever I'm disinclined to be sympathetic to
 the flat out equal treatment, it's in this instance, and I continue to
 wonder why there's a religious exemption. I presume that a religious person
 wouldn't be allowed to smoke on premises even if she belonged to a
 religious sect that commanded chain smoking. I see no difference with
 regard to the flu shot. But, by stipulation, if the rule had nothing to do
 with patients' health, then I'd be inclined to treat secular and religious
 alike.

  Sandy

  Sandy

 Sent from my iPhone

 On Jun 7, 2014, at 9:02 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

  I agree entirely on the bottom line, but let me ask what
 would happen in the absence of concerns about harm to the sick.  Say an
 employer has a uniform policy that bars headgear, but exempts religious
 objectors; and say that a secular employee insists on wearing a hat to
 work, and is fired for it.  Should the employee be seen as constitutionally
 entitled to unemployment compensation, on a rationale similar to that given
 by the New Jersey appellate court?



Eugene



 *From:* religionlaw-boun...@lists.ucla.edu [
 mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson,
 Sanford V
 *Sent:* Friday, June 06, 2014 9:00 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* RE: Religious Exemption From Vaccination Policy Requires
 Acceptance of Secular Reasons As Well



 OK, I’ll bite;  Religious exemptions, at the end of the day,  honor
 beliefs that secularists by definition must regard as “irrational,” i.e.,
 incapable of being defended by reference to “standard-model” scientific
 argument.  There may be good reasons for allowing such exemption in the
 name of preserving civil peace, etc., or it may simply boil down to the
 presence of the Free Exercise Clause and the collapse  of  the
 belief/conduct distinction.  But it is hard to think of “secular” reasons
 for a nurse to refuse to get a flu vaccination, given the risk not only to
 herself—which raises obvious questions about paternalism—but also potential
 risks to her patients should she in fact come down with the flu and infect
 others in the hospital, who are by definition more vulnerable than ordinary
 persons with whom she might also come into contact.  So, unless there
 really is some good reason to refuse flu vaccines—perhaps she is unusually
 sensitive to egg-based vaccines or something similar—I am disinclined to be
 at all sympathetic to her argument and would regard her firing as fully for
 cause.  I think the “freedom of expression” argument in this case is wacky
 given her job and responsibility for doing no harm to the sick.  Were I to
 receive this as an answer to a final exam question, I would be inclined to
 give it a very bad grade.  I leave it to my colleagues on this list,
 including Eugene, to tell me if (and why) I am off-base in my response.



 sandy

 *From:* religionlaw-boun...@lists.ucla.edu [
 mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene
 *Sent:* Friday, June 06, 2014 10:50 PM
 *To:* Law  Religion issues for Law Academics (

 ___
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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http

Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

2014-06-08 Thread Hillel Y. Levin

I'm fairly certain that the current court would uphold the current uga
policy without extending it to secular excuses. I'm just not sure that we
can come up with a justification for it that makes any sense as a policy
matter.

On Sunday, June 8, 2014, Volokh, Eugene vol...@law.ucla.edu wrote:

I’m not positive what the right answer is (though I don’t
 agree with the Free Exercise Clause cases holding that, if the government
 provides secular exceptions, it must also provide religious exceptions).
 I’m just curious about what other people think should happen in situations
 such as the ones involved in the New Jersey case.



 As I understand it, Cutter v. Wilkinson concludes that exemptions limited
 to religious believers are generally constitutionally permissible, so the
 UGA policy you describe is sound even in the absence of comparable secular
 exemptions.  The New Jersey decision, on the other hand, seems to point in
 the opposite direction, albeit in an unusual procedural posture.  Which is
 right?



Eugene



 *From:* religionlaw-boun...@lists.ucla.edu
 javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');
 [mailto:religionlaw-boun...@lists.ucla.edu
 javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');] *On
 Behalf Of *Hillel Y. Levin
 *Sent:* Sunday, June 08, 2014 3:12 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: FW: Religious Exemption From Vaccination Policy Requires
 Acceptance of Secular Reasons As Well



 Eugene:



 Are you asking whether religion is a one way ratchet? Under at least one
 reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are
 (at least some kinds of) secular exceptions, then there must also be a
 religious exception. But if there is a religious exception, must there also
 be secular exceptions? And if so, what kinds of secular exceptions must
 there be--those that rise to the level of conscientious objection status,
 or others as well?



 For what it is worth, I get an email from UGA each year reminding me that
 it is university policy to accommodate (to the maximum degree possible,
 whatever that means) religious students' ability to miss class for
 religious observances. I do not get such an email regarding students who
 miss class because their siblings are getting married, their pets are in
 poor health, or their great aunts (who were like second mothers) died. What
 to make of that?

 On Saturday, June 7, 2014, Levinson, Sanford V slevin...@law.utexas.edu
 wrote:

 I would always want to know the rationale and why it didn't apply to the
 religious person as well. But if ever I'm disinclined to be sympathetic to
 the flat out equal treatment, it's in this instance, and I continue to
 wonder why there's a religious exemption. I presume that a religious person
 wouldn't be allowed to smoke on premises even if she belonged to a
 religious sect that commanded chain smoking. I see no difference with
 regard to the flu shot. But, by stipulation, if the rule had nothing to do
 with patients' health, then I'd be inclined to treat secular and religious
 alike.



 Sandy



 Sandy


 Sent from my iPhone


 On Jun 7, 2014, at 9:02 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

I agree entirely on the bottom line, but let me ask what
 would happen in the absence of concerns about harm to the sick.  Say an
 employer has a uniform policy that bars headgear, but exempts religious
 objectors; and say that a secular employee insists on wearing a hat to
 work, and is fired for it.  Should the employee be seen as constitutionally
 entitled to unemployment compensation, on a rationale similar to that given
 by the New Jersey appellate court?



Eugene



 *From:* religionlaw-boun...@lists.ucla.edu [
 mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson,
 Sanford V
 *Sent:* Friday, June 06, 2014 9:00 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* RE: Religious Exemption From Vaccination Policy Requires
 Acceptance of Secular Reasons As Well



 OK, I’ll bite;  Religious exemptions, at the end of the day,  honor
 beliefs that secularists by definition must regard as “irrational,” i.e.,
 incapable of being defended by reference to “standard-model” scientific
 argument.  There may be good reasons for allowing such exemption in the
 name of preserving civil peace, etc., or it



-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe

Re: Does UVA have its own Regnerus scandal?

2014-05-25 Thread Hillel Y. Levin

I don't agree with Doug's views on these issues, but this is an obscene
witch hunt.

On Sunday, May 25, 2014, jim green ugala...@gmail.com wrote:

 Too bad it took a few brave college students to do what responsible
 academics (including many on this list) have failed to do for years...


 http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html


 -
 --Jimmy Green



-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
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Re: Does UVA have its own Regnerus scandal?

2014-05-25 Thread Hillel Y. Levin

Eugene:

I take it you have no problem with Mr. Green's personal attacks on me? ;-)

On Sunday, May 25, 2014, Volokh, Eugene vol...@law.ucla.edu wrote:

Mr. Green: This is an academic discussion list, for
substantive arguments of substantive legal questions having to do with the
law of government and religion. Please focus on substantive argument,
rather than personal attacks, whether on Prof. Horwitz, Prof. Laycock, or
me, and whether on a person’s being straight, being supposedly a closet
gay, or not living up to your high standards of what a “1st tier law
professor” would be.

Eugene Volokh

*From:*
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');[mailto:
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');]
*On Behalf Of *jim green
*Sent:* Sunday, May 25, 2014 4:27 PM
*To:* Law Religion issues for Law Academics
*Subject:* Re: Does UVA have its own Regnerus scandal?

Is this the same Eugene Volokh who is obsessed with gay men converting
him? The same one who supported ex-gay conversion therapy? The same one
who claimed gay sex was inherently dangerous?

A stroll through your blog is a case study of a closet case...

---Jimmy Green

On Sun, May 25, 2014 at 7:24 PM, jim green ugala...@gmail.com wrote:

I see Horowitz is fast out of the gate defending Laycock as usual. I have
responded ad nauseum to you in your comments section of your blog but as
usual you deflect with a slew of questions as if I were your student in
some parody of The Paper Chase...

Ask me a serious question and I'll give you an answer but I'm not going to
be bullied by some 2nd tier law professor...

---Jimmy Green

On Sun, May 25, 2014 at 7:08 PM, Paul Horwitz phorw...@hotmail.com
wrote:

Could you be more specific? What is it you suppose Prof. Laycock to have
done that puts him in the same company as Regnerus? Are you suggesting that
his work fails academic standards? That any relevant work as counsel was
subject to different standards than those that apply to other lawyers? If
so, how would you apply it to the hundreds of other cases of academic
lawyers who also work as advocates? Do you see any potential problems with
requests for the compelled disclosure of emails by university professors?
Did you see any problems when similar issues came up recently in North
Carolina, Michigan, Virginia, and elsewhere? Did you see any problems with
the compelled disclosure of information, records, testimony, associations,
and other matters with respect to university professors in the 1950s, at
both the state and federal level? In thinking about these questions, do you
not see any potential problems of general application? Or do you just look
at them case by case? And if the latter, how do you distinguish among them?
Surely not on the basis of what you think about the morality of the
individual, or the individual argument, involved. What is the bravery
involved? The students making the request, and the group supporting them,
said that they were in no way attempting to interfere with academic
freedom. I take it then that you agree that using freedom of information
requests to compel the disclosure of emails by university professors raises
no questions of academic freedom. Or do you think that, sometimes, it just
might?

For what it's worth, I agree with you that this story deserves attention.
But perhaps not for the same reasons that you do.

Respectfully,

Paul Horwitz

Sent from my iPad

On May 25, 2014, at 5:42 PM, jim green ugala...@gmail.com wrote:

Too bad it took a few brave college students to do what responsible
academics (including many on this list) have failed to do for years...

http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html

*---jwg*

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Hobby Lobby transcript

2014-03-25 Thread Hillel Y. Levin

Will beat me to it. There is a category of clothes that aren't kosher
(clothes made with both linen and wool fibers). But of course this isn't a
big category of clothing!

On Tuesday, March 25, 2014, Alan Brownstein aebrownst...@ucdavis.edu
wrote:

My dad had a hardware/housewares store in the Bronx. He was not an
observant Jew. Everyone was closed on Sunday. He was open on Saturday. He
told me he did half of the week's business on Saturday and that it was
impossible to be in business and be closed both days.

Alan
--
*From:*
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');[
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');]
on behalf of Ira Lupu
[icl...@law.gwu.edujavascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu');
]
*Sent:* Tuesday, March 25, 2014 3:00 PM
*To:* Law Religion issues for Law Academics
*Subject:* Re: Hobby Lobby transcript

Braunfeld did not sell meat. From the opinion: Appellants are
merchants in Philadelphia who engage in the retail sale of clothing and
home furnishings within the proscription of the statute in issue.

On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V
slevin...@law.utexas.edu wrote:

With regard to Braunfield, given that the customers are a distinct subset
of people who want Kosher meat, isn't the argument more that they are
decidedly inconvenienced by being unable to shop on Sunday (which is just
another day to them), but NOT that they will refrain from buying kosher
meat from Braunfield. After all, no other kosher meat market will be open
on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is
(was) the argument that non-Sabbath observant Jews would no longer buy
general grocery products from Braunfield that were easily available from
Stop and Shop on Saturday? In the former case, then Braunfield's overall
income should be roughly the same even with the forced Sunday closing. Is
this even a relevant way of approaching the case, instead of being upset,
as I was almost fifty years ago when I read it, at the simple inegalitarian
aspects of Jewish butchers being forced to close two days a week (one day
by the state, one day by their !
religious duty) while (mainstream) Christians could remain open six days
a week. But, to repeat, this would be a competitive advantage only if
Jewish shoppers really didn't care that much about where they brought their
meat and other grocery products. It would be a different case, presumably,
if we were talking about, say, paint stores, where there's no category
called kosher paint.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:
religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice
Kagan invoked Braunfeld. I made a similar comparison on the listserv back
in December:

Braunfeld might support Marty's argument. The government provides an
option to all employers: (1) pay a tax, or (2) provide coverage. If (1)
doesn't burden religion, and even if it's somewhat more expensive,
Braunfeld seems to contemplate that laws will sometimes work in this way.
Provided a law doesn't directly compel anyone to violate their religious
beliefs, its imposition of additional costs on religious practice is not
sufficient to show a substantial burden.

Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on
it. And maybe there are other problems with the analogy, but I wonder if
the no employer mandate argument turns on an empirical claim, at least if
the cost differentials are not so significant as to be tantamount to
coercion -- as in the 4980D tax for failing to comply with coverage
requirements.

Here's Justice Kagan (transcript p. 24):

15 JUSTICE KAGAN: Well, let's say that that's
16 right. Let's say that they have to increase the wages a
17 little bit. I mean, still we are talking about pretty
18 equivalent numbers. Maybe it's a little bit less; maybe
19 it's a little bit more. But this is not the kind of
20 thing that's going to drive a person out of business.
21 It's not prohibitive.
22 It's like the thing that we talked about in
23 Braunfeld where we said, you know, maybe if the store
24 can't stay open 7 days a week, it makes a little bit
25 less money. But so be it, is what we said.

If it works, I do think this argument raises factual questions that would
have to be addressed on remand.

On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com
wrote:

is here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354
_5436.pdf

--
Hillel Y. Levin
Associate Professor
University of Georgia
School

Re: letter opposing Mississippi RFRA

2014-03-11 Thread Hillel Y. Levin

I'm not sure I understand. If such RFRAs are so ineffectual then why are
some people pushing so hard for them? If they aren't worth fighting
against, why are they worth fighting for?

On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote:

There is of course nothing in the actual experience of state RFRAs to
support any of the speculative fears in the letter. Litigation has been
scarce; decisions favoring religious claimants have been scarcer. RFRAs
have been significantly under enforced compared to the aspirations of their
drafters.

The recent string of wins under federal RFRA in the contraception cases
arise in a context where government attempted to override long held and
clearly stated teaching of two of the largest religious groups in the
country (Roman Catholics and evangelical Protestants). Even if those wins
hold up in the Supreme Court, which is far from assured, there is little
reason to think they would be replicated in other contexts.

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546

*From:*
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');[mailto:
religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');]
*On Behalf Of *Ira Lupu
*Sent:* Tuesday, March 11, 2014 12:21 PM
*To:* Law Religion issues for Law Academics
*Subject:* letter opposing Mississippi RFRA

A group of ten legal academics, including myself and a number of others
who post on this list, have prepared a letter urging the legislative defeat
of a proposed Religious Freedom Restoration Act in Mississippi. The letter
has recently been delivered and made publicly available. It can be found
here: http://www.thirdway.org/publications/795

Ira C. Lupu
F. Elwood Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious
People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

Re: letter opposing Mississippi RFRA

2014-03-11 Thread Hillel Y. Levin

All of this makes it apparent why RFRAs like this are poorly conceived. We
have no idea what their reach will be and how the courts will balance the
various interests involved. I have no beef with religious accommodations on
a case-by-case basis (which worked reasonably well for quite a long period
of time). Unlike RFRAs, they make it clear exactly who they apply to and
when, and they reflect reasoned judgment by legislators on terms that can
be debated by the polity.

The sort of proposal that Doug floated a while back, where supporters of
same-sex marriage and non-discrimination and supporters of religious
liberty sit down and strike a deal that gives both a lot of what they want
(but gives neither everything) seems like a reasonable approach. I don't
know whether I'd support it, candidly, but to my mind that's how politics
and legislation ought to work.

And I really can't understand Doug's position that these new RFRA
proposals--which are *clearly* meant to allow for religion-based
discrimination against gays and lesbians (including businesses), given the
context--shouldn't worry us because courts probably won't take them very
seriously. Again, if they aren't worth fighting against, then why are so
many people fighting *for* them?


On Tue, Mar 11, 2014 at 2:05 PM, Greg Lipper lip...@au.org wrote:

  Yes, indeed. And whatever substantial burden means, it most certainly
 does not mean - and could not be applied by courts, with a straight face,
 to mean - burdens with respect to long held and clearly stated teaching of
 two of the largest religious groups in the country.




  On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com
 wrote:

  To be fair to Doug and others of us who fought for RFRA and RLPA and
 RLUIPA way back when, we thought they were worth fighting for because of
 all manner of cases that *did not involve the commercial sector* --
 including, for example, Doug's prisoner case that the Court just granted.
 Doug is right that no one, back then, thought commercial sector cases could
 prevail -- because they have virtually never received so much as a vote in
 the Supreme Court.

  But that was then; this is now.  If Hobby Lobby prevails, and if these
 state laws are enacted against the backdrop of such a Supreme Court
 decision and a manifest legislative and popular intent to promote
 exemptions in the commercial sphere, well . . . that's a different
 landscape entirely, isn't it?


 On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.comwrote:

 I'm not sure I understand. If such RFRAs are so ineffectual then why are
 some people pushing so hard for them? If they aren't worth fighting
 against, why are they worth fighting for?


 On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu
 wrote:

  There is of course nothing in the actual experience of state RFRAs to
 support any of the speculative fears in the letter. Litigation has been
 scarce; decisions favoring religious claimants have been scarcer. RFRAs
 have been significantly under enforced compared to the aspirations of their
 drafters.



 The recent string of wins under federal RFRA in the contraception cases
 arise in a context where government attempted to override long held and
 clearly stated teaching of two of the largest religious groups in the
 country (Roman Catholics and evangelical Protestants). Even if those wins
 hold up in the Supreme Court, which is far from assured, there is little
 reason to think they would be replicated in other contexts.



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
 *Sent:* Tuesday, March 11, 2014 12:21 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* letter opposing Mississippi RFRA



 A group of ten legal academics, including myself and a number of others
 who post on this list, have prepared a letter urging the legislative defeat
 of a proposed Religious Freedom Restoration Act in Mississippi.  The letter
 has recently been delivered and made publicly available.  It can be found
 here:  http://www.thirdway.org/publications/795



 --

 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053

 Co-author (with Professor Robert Tuttle) of Secular Government,
 Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg



  --
 Hillel Y. Levin
 Associate Professor
 University of Georgia
 School of Law
 120 Herty Dr.
 Athens, GA 30602
 (678) 641-7452
 hle...@uga.edu
 hillelle...@gmail.com
 SSRN Author Page:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645

Re: letter opposing Mississippi RFRA

2014-03-11 Thread Hillel Y. Levin

, by a mosque to protect itself from
 indifference or cloaked discrimination that might not be reachable under
 Employment Division v. Smith--or by other religious organizations to protect
 themselves from a variety of other non-tolerant things that officials in
 Mississippi have been known to do?  (This is not a case like Arizona, where
 a state RFRA already existed; and unless I'm mistaken, Mississippi's free
 exercise clause has not been interpreted yet on the question whether claims
 of substantial burdens on religious exercise deserve any heightened
 scrutiny.)



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



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



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



 -

 Thomas C. Berg

 James L. Oberstar Professor of Law and Public Policy

 University of St. Thomas School of Law

 MSL 400, 1000 LaSalle Avenue

 Minneapolis, MN   55403-2015

 Phone: (651) 962-4918

 Fax: (651) 962-4996

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

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

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


 



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
 *Sent:* Tuesday, March 11, 2014 12:43 PM

 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: letter opposing Mississippi RFRA



 To be fair to Doug and others of us who fought for RFRA and RLPA and
 RLUIPA way back when, we thought they were worth fighting for because of
 all manner of cases that *did not involve the commercial sector* --
 including, for example, Doug's prisoner case that the Court just granted.
 Doug is right that no one, back then, thought commercial sector cases could
 prevail -- because they have virtually never received so much as a vote in
 the Supreme Court.

 But that was then; this is now.  If Hobby Lobby prevails, and if these
 state laws are enacted against the backdrop of such a Supreme Court
 decision and a manifest legislative and popular intent to promote
 exemptions in the commercial sphere, well . . . that's a different
 landscape entirely, isn't it?



 On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 I'm not sure I understand. If such RFRAs are so ineffectual then why are
 some people pushing so hard for them? If they aren't worth fighting
 against, why are they worth

Re: letter opposing Mississippi RFRA

2014-03-11 Thread Hillel Y. Levin

Thanks Brad. I'm still not sure I understand, though. You have helped me
understand why, in the *absence* of a contraception mandate a religious
employer with these beliefs would be obligated to choose not to cover
contraception. But the contraception mandate doesn't allow the employer to
choose whether contraception is covered. So in what way is the employer
fully involved in the decision of what is being covered?


On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee bp51...@windstream.net wrote:

 Because the employee's paycheck is a blank check.  The employee can do
 whatever they want with it because, as part of the salary, there are no
 limits on what the employee can or can't spend the money on.  However,
 insurance is not a blank check.  The policy specifies what it is covering
 and what it is not covering and the employer, in determining the range of
 the benefits they offer, is fully involved in the decision of what is being
 covered and is fully accountable to his or her God for that decision.



 Brad



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Tuesday, March 11, 2014 7:36 PM

 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: letter opposing Mississippi RFRA



 I have a question for those who have religious beliefs opposed to the
 contraception mandate. I do not mean this question as a provocation, but
 rather in the interest of helping me to understand the problem. Suppose a
 religious employer knows with 100% certainty that an employee will spend a
 small amount of her income on contraception. I take it that this does not
 violate a religious belief. How is that different from directing a
 percentage of the employee's salary towards health insurance, which will
 cover contraception?



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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: letter opposing Mississippi RFRA

2014-03-11 Thread Hillel Y. Levin

I have a question for those who have religious beliefs opposed to the
contraception mandate. I do not mean this question as a provocation, but
rather in the interest of helping me to understand the problem. Suppose a
religious employer knows with 100% certainty that an employee will spend a
small amount of her income on contraception. I take it that this does not
violate a religious belief. How is that different from directing a
percentage of the employee's salary towards health insurance, which will
cover contraception?


On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote:

 I can get behind liberty.  Can you (and others) get behind equality?
  Often they work together, but sometimes they are in serious conflict.
  State sanctioned liberty to exclude and discriminate against denies
 equality to some.  State sanctioned and enforced equality limits the
 liberty of some who want to be free to exclude on liberty grounds.  State
 prohibition of discrimination on the basis of race, gender, age, and
 religion mean in no small part those people are at liberty to do things and
 to participate in things they could not without the anti-discrimination
 laws -- so it increases their liberty (and equality) at the expense of some
 liberty of others who want to treat some as less equal.

 It is not an easy calculus nor is consistency possible.   But there are
 values in the constitution beyond liberty and free exercise.

 Steve


 --
 Prof. Steven D. Jamar vox:  202-806-8017
 Director of International Programs, Institute for Intellectual Property
 and Social Justice http://iipsj.org
 Howard University School of Law   fax:  202-806-8567
 http://iipsj.com/SDJ/


 I don't know whether the world is full of smart men bluffing
 or imbeciles who mean it.
 -- Morrie Brickman

 On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote:

  I indulge in the fantasy that liberty is a founding belief that we all
 can believe in and come to reasonable compromise but
 reality continuously disabuses me of the notion.



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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Mandatory Insurance Coverage of Abortion

2014-03-11 Thread Hillel Y. Levin

Thomas:

Thanks for that thoughtful analysis. I wasn't aware of that bill. I think
religious groups that oppose abortion should vigorously oppose it, and I
think they will win. It isn't easy to pass controversial legislation in the
face of focused, determined opposition, particularly concerning a political
football like abortion.

FWIW I didn't sign the Establishment clause brief, and I think the argument
you spin out helps to explain why: I'm in favor of the political process,
except where it is broken. Messy compromises are a sign that it is working.

Religious groups are natural political allies with other groups that care
about individual liberty. I fear, however, that by working stridently
against gay rights groups on these new RFRA bills they will sacrifice the
long term viability of those alliances. Sophisticated lobbying groups pick
their battles.




On Tue, Mar 11, 2014 at 8:26 PM, Berg, Thomas C. tcb...@stthomas.eduwrote:

  Hillel Levin writes: Further, I'm not moved by the argument that the
 logic for the contraception mandate could apply just as well to abortion.
 Under the Court's logic in *Sebelius*, Congress could impose a broccoli
 mandate (with a tax penalty) if it chose to, but it isn't going to because
 people aren't interested in a broccoli mandate.



 The prospect of a mandate to cover abortion is (at least in some states)
 far more likely than the broccoli-mandate notion.  The Washington state
 House just passed such a mandate on all insurers that provide coverage for
 maternity care.  Although it appears the bill will not get through the
 Senate, our recent discussions suggest that bills that pass one house of a
 state legislature are very much in political play and warrant serious
 consideration.  (I'm assuming that a mandate on insurers in Washington
 would put substantial economic pressure on many employers, including many
 religious non-profits; the self-insurance alternative might be available,
 I'm assuming--at least, under this bill, for right now--but self-insuring is
 difficult for smaller employers.)



 Text of bill (as best I can tell):
 http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/2148.pdf

 Seattle Times:
 http://seattletimes.com/html/localnews/2022845818_rpapassesxml.html



 The bill contains an exception, in section 7(a), for a religiously
 sponsored health carrier that objects to covering abortion.  But if I
 correctly understand the position of some on the list--and some briefs filed
 in Hobby Lobby--this exemption may violate the Establishment Clause, in
 their view, because it allows a religiously grounded exception, in the
 insurance market, to covering a service that the legislature has otherwise
 determined is a statutory entitlement.  Is that correct?



 I share Hillel's view that religious individuals and groups are often able
 to protect themselves in the political process (FWIW, I also share his view
 that Republicans would have done better to work with Democrats in the
 drafting of the Affordable Care Act).  But the position that exemptions in
 the for-profit sphere violate the Establishment Clause would prohibit, I
 think, a significant number of the political compromises/protections in
 which Hillel places stock.



 -

 Thomas C. Berg

 James L. Oberstar Professor of Law and Public Policy

 University of St. Thomas School of Law

 MSL 400, 1000 LaSalle Avenue

 Minneapolis, MN   55403-2015

 Phone: (651) 962-4918

 Fax: (651) 962-4996

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

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

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


 



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Tuesday, March 11, 2014 4:38 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: letter opposing Mississippi RFRA



 The Supreme Court tried to step out of the interest-balancing business in
 *Smith*, in part because it was terrible at it. We should let it get out
 of that business to the extent possible. As a religious person myself, I
 don't like it when the court decides how substantial a burden something is
 on my religious practices. How could the courts possibly assess that?



 I'd feel differently if I thought that religious groups were incapable of
 protecting their interests in the political arena. But that's hardly the
 case (before or after *Smith*). Religious rights groups have proven
 themselves quite capable of participating in the political economy just
 like every other lobbying group. But the nature of the political economy is
 that you win some and you lose some. And when it comes to balancing the
 interests in prohibiting discrimination and in women's health issues vs.
 religious liberty, I think the legislatures are at least as well

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Hillel Y. Levin

 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 viewed as 
 private.
 Anyone can subscribe to the list and read messages that are posted; people 
 can
 read the Web archives; and list members can (rightly or wrongly) forward the
 messages to others.


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  --
 Michael Worley
 BYU Law School, Class of 2014

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 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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




-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Hillel Y. Levin

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

The same sex marriage laws to which you refer do have exceptions, for
clergy, houses of worship, and (sometimes) for religious charities and
social services. Bob Tuttle and I analyze and collect some of that here:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
There is plenty of other literature on the subject.

What has happened in other states since we wrote that piece is quite
consistent with the pattern we described. These laws do NOT contain
exceptions for wedding vendors (bakers, caterers, etc.) or public employees
like marriage license clerks. Those are the efforts that have failed, over
and over.

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
hillelle...@gmail.comwrote:

Ira:

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have religious
exceptions (as does the ENDA that passed the senate not long ago, only to
die in the House). Am I mistaken? Do you (or anyone else here!) know of any
literature that canvasses the laws in this context?

Many thanks.

On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

The Kansas bill is very sex/gender specific, and it is not limited to
weddings in any way. The rights it creates appear absolute -- no interest
balancing. It would authorize all sincere religious objectors (persons and
entities, including businesses) to treat same sex marriages/domestic
partnerships, etc. as invalid, even if the 14th A required states to
license and respect such weddings. It would authorize those objectors to
refuse to provide goods and services to anyone celebrating such a wedding
or commitment, and to deny employee spousal benefits to same sex spouses.

The Arizona bill protects religious freedom generally, and the amendment
extends the coverage explicitly to corporations.The same religious
objections to same sex weddings, marriages, etc. could be made under the
Arizona bill. The AZ bill permits a compelling interest defense (therefore
more moderate?), but it also is far more sweeping because it might be
invoked to justify religious discrimination against customers for all sorts
of reasons of status and identity, not limited to sexual orientation.

Unlike federal RFRA, which was a generic response to Smith and brought
together a coalition of many faith groups and civil liberties groups, the
amendments to Arizona RFRA are driven by exactly the same political forces
as are driving the Kansas bill and others -- opposition to same sex
marriage and same sex intimacy, and an assertion of rights of some business
people to refuse to serve that population. So the good lawyers on this
list can parse the differences in the bills, and we can debate which bill
would do more harm or more good, if you think there is any good here to be
done. But no one can credibly deny that all of these current legislative
efforts are driven by the same political forces.

Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for
the past 5 years been pushing narrower versions of these bills in states
that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)
Those efforts have failed over and over again. Now that same sex marriage
seems headed for the red states, we are just seeing broader, uglier, less
nuanced versions of the same agenda. I hope and expect that Gov. Brewer
will veto the AZ bill, and it's nice to see the fierce national pushback
against these attempts to legitimate anti-gay bigotry, whatever its
religious underpinnings in some cases.

On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark
mark.scarbe...@pepperdine.edu wrote:

That should have been much more moderate/less sweeping.

Mark

Mark S. Scarberry
Pepperdine University School of y

Sent from my Verizon Wireless 4G LTE Smartphone

Original message
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

Marci's view of the rights of a Walmart under tha AZ bill, and likely
even the Kansas bill, is simply wrong.

The application in the AZ bill to private enforcement by way of
lawsuit simply prevents the state from doing indirectly what it can't do
directly, cf. NY Times v. Sullivan, and makes clear something that already
should be the case under RFRAs, properly interpreted.

It also is the case that the AZ bill is much more moderate/sweeping
than the Kansas bill.

Mark S. Scarberry
Pepperdine

Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses

2014-02-26 Thread Hillel Y. Levin

Jim is too humble to say so, but his article is required reading for anyone
interested in the Hobby Lobby, Notre Dame, and related cases.

Jim, this is necessarily speculative, but I think that some religious
traditionalists/conservatives view themselves as under attack from
secularist forces. These forces are at play in the same-sex marriage
context, but also GLBT non-discrimination laws, the contraception mandate,
and others to boot. In the face of this (real or perceived) broad-based
attack, as well as perhaps the sense that public sentiment is moving
towards secularism in general (and GLBT rights in particular), they may be
trying to plant their flag right here in places that they still have a
majority.

This could be called cynical, but it could also be called wise. After all,
it is extremely difficult to repeal a religious accommodation clause once
it is enacted, even if the majority comes to regret having enacted it.

On Wed, Feb 26, 2014 at 11:46 AM, James Oleske jole...@lclark.edu wrote:

In light of the recent discussions of this issue on the list, and in light
the various proposals percolating in the states, I've got a question for
the group and a shameless plug.

First, the shameless plug -- I've just posted a new piece on the issue to
SSRN (it won't be in print until next year, so comments and suggestions
would be very welcome):

*Interracial and Same-Sex Marriages: Similar Religious Objections, Very
Different Responses*
http://ssrn.com/abstract=2400100

The article addresses two major questions that have gone largely
unexamined in the literature to date: First, why has the legal academy been
so solicitous of religious objections to same-sex marriage when it was
never receptive to similar objections to interracial marriage? Second, if a
state were to adopt the leading academic proposal for religious
exemptions--a proposal that would allow for-profit businesses to
discriminate against same-sex couples--would the exemptions be vulnerable to
an equal protection challenge?

The leading academic proposal I discuss is the
Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal
discussion of that proposal begins on page 35 of the draft. A more general
discussion of exemptions for commercial businesses starts on page 27 of the
draft.

Second, the question for the group: What explains the recent pivot from
the marriage specific proposals (e.g., proposed amendment to Minnesota's
2012 marriage recognition legislation; proposed amendment to Washington's
2012 marriage recognition legislation; proposed 2014 ballot initiative in
Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to
the expansion of RFRA rights proposals (Arizona, Missouri)? Is it an
effort to tie into what is expected to be a victory for Hobby Lobby under
the federal RFRA?

- Jim

P.S. My understanding is the same as Chip's -- no state has yet adopted
marriage exemptions that extend to commercial vendors. Speaking of Chip,
his article with Bob on this topic is essential reading (
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp
).

On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu icl...@law.gwu.edu wrote:

That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin
hillelle...@gmail.comwrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted
the broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
hillelle...@gmail.com wrote:

Ira:

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have
religious exceptions (as does the ENDA that passed the senate not long
ago,
only to die in the House). Am I mistaken? Do you (or anyone else here!)
know of any literature that canvasses the laws in this context?

Many thanks.

On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu

Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses

2014-02-26 Thread Hillel Y. Levin

Marci:

I am not sure whether you are responding to my email, but I don't believe
that I posited such an either/or proposition.

On Wed, Feb 26, 2014 at 12:49 PM, hamilto...@aol.com wrote:

The either/or posited between secularism and faith is actually false as
a sociological matter in the United States. What is happening is that
conservative Christians and Jews who oppose gay marriage
are now facing opposition from religious believers. Secularism is a small
portion of the population. This is a fight between believers who are now
lining up on both sides of the issue. Those opposed to gay marriage are
losing ground and allies, and know statistically that the younger
generation across all faiths do not agree with them. They are trying to
co-opt the government to preserve the world they are losing, and will not
get back.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
https://www.facebook.com/professormarciahamilton?fref=ts
https://twitter.com/marci_hamilton

-Original Message-
From: Hillel Y. Levin hillelle...@gmail.com
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 12:05 pm
Subject: Re: Same-Sex Marriage and Proposed Religious Exemptions for
Businesses

Jim is too humble to say so, but his article is required reading for
anyone interested in the Hobby Lobby, Notre Dame, and related cases.

This could be called cynical, but it could also be called wise. After
all, it is extremely difficult to repeal a religious accommodation clause
once it is enacted, even if the majority comes to regret having enacted it.

On Wed, Feb 26, 2014 at 11:46 AM, James Oleske jole...@lclark.edu wrote:

In light of the recent discussions of this issue on the list, and in
light the various proposals percolating in the states, I've got a question
for the group and a shameless plug.

First, the shameless plug -- I've just posted a new piece on the issue
to SSRN (it won't be in print until next year, so comments and suggestions
would be very welcome):

*Interracial and Same-Sex Marriages: Similar Religious Objections, Very
Different Responses*
http://ssrn.com/abstract=2400100

- Jim

On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu icl...@law.gwu.edu wrote:

That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin
hillelle...@gmail.com wrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Hillel Y. Levin

Doug:

What do you mean by the following: Apart from marriage, there is no reason
to have religious exemptions for businesses from laws on sexual-orientation
discrimination.

There certainly are some religious people (I don't agree with them, but I
could give you their names and numbers) who would find it religiously
problematic to provide certain services to same-sex couples, including, for
example, renting them an apartment. Why is there no reason to accommodate
such people if you *would* accommodate the wedding photographer? Am I
misunderstanding you?

On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.eduwrote:

Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some are
broad; some are narrow. Some are well drafted; some are a mess. But they
are mostly there.

Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the
groups I have been part of has ever suggested such exemptions. Not even the
Kansas bill provides such exemptions.

Chip is correct that no state has explicitly exempted small businesses in
the wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire
elsewhere with less publicity, may indicate that such exemptions will be
hard to enact even in red states. Or maybe not, if someone offers a well
drafted, narrowly targeted bill when or after same-sex marriage becomes the
law in those states.

I agree with Alan Brownstein that part of the problem in red states is
that they want to protect religious conservatives without protecting gays
and lesbians. Not only does Arizona not have same-sex marriage; it doesn't
have a law on sexual-orientation discrimination. The blue states are mostly
the mirror image. More and more they want to protect gays and lesbians but
not religious conservatives. Hardly any political actors appear to be
interested in protecting the liberty of both sides.

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546

*From:* religionlaw-boun...@lists.ucla.edu [mailto:
religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
*Sent:* Wednesday, February 26, 2014 11:34 AM

*To:* Law Religion issues for Law Academics
*Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
wrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com
wrote:

Ira:

Many thanks.

___
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--
Hillel Y. Levin
Associate Professor

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Hillel Y. Levin

Mark:

I don't accept your account of wedding cake designers. As you surely know,
to qualify as expressive conduct, conduct must be both intended to convey a
particular message and to be interpreted by the community in such a manner.
I don't know why anyone would assume that baking a nice cake for money
amounts to a message of support for a gay marriage. It isn't quite as
articulate as burning a flag.

Further, this is commercial speech that we are talking about, which also
gets lesser protection.

And if it is expressive conduct, I don't see why the same theory shouldn't
extend to renting an apartment to a same-sex couple (or single mother). I
assume that renting an apartment expresses the same thing as baking and
decorating a cake. To me, neither one of them expresses anything, but if
either one does, then they both do.


On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edu wrote:

 There certainly is reason to give particular protection to people with
 regard to First Amendment expression, such as the creation of celebratory
 art by wedding photographers. That is not an accommodation given as a
 matter of legislative grace, at least not under any sensible approach to
 the First Amendment.



 It is a separate question whether others' religious conscience should be
 protected by accommodations under the regime created by Employment
 Division v. Smith.



 Mark



 Mark S. Scarberry

 Professor of Law

 Pepperdine Univ. School of Law







 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Wednesday, February 26, 2014 11:49 AM

 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 Doug:



 What do you mean by the following: Apart from marriage, there is no
 reason to have religious exemptions for businesses from laws on
 sexual-orientation discrimination.



 There certainly are some religious people (I don't agree with them, but I
 could give you their names and numbers) who would find it religiously
 problematic to provide certain services to same-sex couples, including, for
 example, renting them an apartment. Why is there no reason to accommodate
 such people if you *would* accommodate the wedding photographer? Am I
 misunderstanding you?



 On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu
 wrote:

 Many state laws on sexual-orientation discrimination, and most laws on
 same-sex marriage, have exemptions for religious organizations. Some are
 broad; some are narrow. Some are well drafted; some are a mess. But they
 are mostly there.



 Apart from marriage, there is no reason to have religious exemptions for
 businesses from laws on sexual-orientation discrimination. No one in the
 groups I have been part of has ever suggested such exemptions. Not even the
 Kansas bill provides such exemptions.



 Chip is correct that no state has explicitly exempted small businesses in
 the wedding industry, or in marriage counseling, from its same-sex marriage
 legislation. All those laws so far have been in blue states. The absurd
 overreach in the Kansas bill, and the resulting political reaction to the
 radically different Arizona bill, and some bills caught in the fire
 elsewhere with less publicity, may indicate that such exemptions will be
 hard to enact even in red states. Or maybe not, if someone offers a well
 drafted, narrowly targeted bill when or after same-sex marriage becomes the
 law in those states.



 I agree with Alan Brownstein that part of the problem in red states is
 that they want to protect religious conservatives without protecting gays
 and lesbians. Not only does Arizona not have same-sex marriage; it doesn't
 have a law on sexual-orientation discrimination. The blue states are mostly
 the mirror image. More and more they want to protect gays and lesbians but
 not religious conservatives. Hardly any political actors appear to be
 interested in protecting the liberty of both sides.





 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
 *Sent:* Wednesday, February 26, 2014 11:34 AM


 *To:* Law  Religion issues for Law Academics

 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
 counterexamples, I'm sure they will bring them forward to the list.



 On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 Chip:



 Thanks for the cite! I will take a look.



 And just so I understand: are you asserting that *none* have adopted the
 broader exceptions (wedding vendors, etc)?



 On Wed, Feb 26, 2014 at 11:23

Re: Notre Dame-- where's the complicit participation? Sincerity

2014-02-17 Thread Hillel Y. Levin

-cultural messages and groups (whatever may
 be the counter to the culture at the moment) - we soon may find ourselves
 living in an impoverished society that can no longer characterize itself as
 truly free.  As Learned Hand once said, the Spirit of the Liberty is the
 spirit that is not too sure that it is right.  More humility in political
 leadership and greater tolerance for others of differing political views
 could avoid many of these problems and produce creative means for solutions
 that cause less conflict.





 Gregory Sisk

 Laghi Distinguished Chair in Law

 University of St. Thomas School of Law (Minnesota)

 MSL 400, 1000 LaSalle Avenue

 Minneapolis, MN  55403-2005

 651-962-4923

 gcs...@stthomas.edu javascript:_e(%7B%7D,'cvml','gcs...@stthomas.edu');

 http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html

 Publications:  http://ssrn.com/author=44545







-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
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To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: On implausible burdens

2014-02-15 Thread Hillel Y. Levin

, February 14, 2014 3:21 PM
 *To:* conlawp...@lists.ucla.edu
 *Subject:* RE: Posner on oral advocacy in religion caseesri



 I am not sure, but is it not the case that ND's precise claim is that the
 exemption part of the form is not the problem, but the fact that the form
 is also an instrument that sets in motion the provision of contraceptive
 services by the third party?  So ND's objection is that the employee would
 not have contraceptives but for the provision of insurance by ND and its
 signing of the form.



 Scot Zentner

 Professor

 Political Science

 CSU, San Bernardino




   --

 *From:* conlawprof-boun...@lists.ucla.edu [
 conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [
 hamilton.ma...@gmail.com]
 *Sent:* Friday, February 14, 2014 12:46 PM
 *To:* Marty Lederman
 *Cc:* conlawp...@lists.ucla.edu
 *Subject:* Re: Posner on oral advocacy in religion caseesri

 I don't want to put too fine a point on this, but this entire line of
 reasoning by ND is utter insanity.   The good news is that the religious
 groups have gotten too clever by half and awakened the women and civil
 rights groups in the country who did not understand how RFRA operates
 against the vulnerable. It is, however, the natural end point of the
 likelihood that believers and institutions would try to exploit

 RFRA to its absolute maximum limits.  Every group/individual is likely to
 exploit the power they have.  That is one of the most important principles
 the US is built on.



 But the people, the Constitution, and the state constitutions are
 supposed to guard against such overreaching.  If this is what

 RFRA requires,  it is a violation of the Establishment Clause.  All that
 is left is for someone to claim that their religious

 faith is substantially burdened when they think about their
 neighbor/student/employee using a condom (preventing conception), and
 condoms should not be approved for sale by the FDA because of the burden
 they are experiencing.

  If I were on the other side in the ND case, I would suggest a sincerity
 challenge, and depositions of every higher-up at ND to find out if they
 have ever used birth control.



 Marci





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 ___
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 wrongly) forward the messages to others.




 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School

Re: On implausible burdens

2014-02-15 Thread Hillel Y. Levin

Paul:

I do think I am asking a different question from the one normally dealt
with in the literature, for the reason you note. That said, I suspect that
there is a good deal in the literature addressed to the question I pose--if
anyone has some citations, I'd be grateful.

Who are the religious experts that we outsource religious freedom
questions to? Isn't everyone an expert on her own religious beliefs
(contrary to medical questions), and (contra to medical questions again)
aren't we forbidden from seeking religious experts who would undermine the
person's religious freedom claim? That strikes me as quite a meaningful
difference between medical accommodations and religious accommodations.

I'm not ready to concede your point about speech rights functioning the
same way. The normative reasons that we privilege and protect speech are of
course debated extensively, but they all have in common (I think) that
speech rights somehow redound to the benefit of the polity. Having made
that decision in the abstract, we have to accept that we will protect some
speech that isn't particularly worthy of such protection.

In the case of religion, however, I'm asking why protecting religious
exercise ever redounds to the benefit of the polity in the first place. If
we can't identify any way in which it does, then protecting it above other
things--like dignity or personal feelings of well-being--is difficult for
me to understand.

I should add that in a society in which religion is basically necessary to
understand the way the world works, it makes sense to privilege religion
and be pluralistic about it. But in today's society, in which huge swaths
of the population find it entirely possible to explain the world (at least
well enough) without reference to the supernatural, religion seems to
me more like a personal choice akin to aesthetic preferences, a search for
inner peace or communal structure. In other words, the
increasing plausibility of atheism or agnosticism seems to me to change the
normative playing field quite a bit.

On Saturday, February 15, 2014, Paul Horwitz phorw...@hotmail.com wrote:

 The literature on this question, as a legal question. Is of course growing
 like Topsy. But I am not sure that you are asking the same question.
 Because this country does not tend to privilege conscience qua conscience
 to the same degree as religion, the question usually asked is why religion
 is special as against ostensibly similar conscience claims. But your
 question seems to apply equally to either--and may, indeed, amount to
 asking why any and every individual claim, say of autonomy or dignity, is
 not subjected to some form of consequential analysis and balancing.

 A few other observations:

 1) Along one relevant axis we do treat, eg., medical claims to
 accommodation in the same way as we treat religious accommodation claims.
 Both raise questions of the epistemic ability or legitimacy of legal
 decision-makers, and involve substantial deference to the decisions of
 outside experts, although in the case of medicine a) we are, or more often
 pretend we are, able to second-guess those claims to a greater degree, and
 b) those questions involve a less plural interpretive community.

 2) In both cases, there are underlying normative issues that cannot be
 fully answered by the expert community. Even under strict scrutiny regimes
 we may, for normatively charged reasons, prefer compelling state interests
 to religious claims. Even where there is medical or other expert
 consensus--on, say, the capacity of a fetus to live outside the womb or of
 an individual to decide whether to end his life, or the environmental risks
 presented by nuclear power--that consensus does not tell us what we ought
 to do. At best, we can more or less carefully separate the two kinds of
 questions and argue about who ought to have the authority to decide each of
 them. That, to refer back to the earlier discussion, is probably the core
 academic responsibility in this area.

 3) There are arguably some core conscience claims outside of religion that
 we do treat essentially as black box decisions, at least in individual
 cases, including many equality and speech claims. Having decided to
 privilege artistic or political speech, for instance, we don't ask why
 Andres Serrano needed Piss Christ not to be Waterlogged Christ, or rank his
 artistic impulses against those of other artists, or do much by way of
 balancing Serrano's artistic needs against the needs of the community.

 4) Having started down the normative road, we might  (and sometimes do,
 but we could always do so) just as well ask why we privilege community
 needs over individual claims, the state over other normative or
 interpretive communities, equality over liberty, ostensibly secular reasons
 over religious ones, etc.

 On Feb 15, 2014, at 7:41 PM, Hillel Y. Levin 
 hillelle...@gmail.comjavascript:_e(%7B%7D,'cvml','hillelle...@gmail.com');
 wrote:

 I have found

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