RE: TRO against Oklahoma no use of Sharia Law
Perhaps principles from the common law of defamation can do some work in the Catholic League case -- the allegedly injured party must show that the defamatory statement was of and concerning the plaintiff (so named church officials, yes; all unnamed Catholics, no?) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Wed, 10 Nov 2010 15:25:37 -0500 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern ste...@ajc.org) Subject: RE: TRO against Oklahoma no use of Sharia Law To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu But the resolution was non-binding and unenforceable; how then, on your view of standing are they harmed? Marc D. Stern Associate General Counsel for Legal Advocacy ste...@ajc.org 212.891.1480 646.287.2606 (cell) [IMG] NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 10, 2010 3:20 PM To: Law Religion issues for Law Academics Subject: FW: TRO against Oklahoma no use of Sharia Law Well, the Catholic League minority reasoned that the parties who are personally the subjects of the resolution, such as Cardinal Levada, Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable harm, because they were singled out by name in the resolution; but that people who are simply offended by the condemnation of Catholicism do not have standing. I would think that the plaintiff in the Oklahoma case falls more in the latter category than in the former. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, November 10, 2010 11:36 AM To: 'Law Religion issues for Law Academics' Subject: RE: TRO against Oklahoma no use of Sharia Law The five judges who dissented on the standing issue stated explicitly that while the Catholic League did not have standing, the Catholic Church would have. Why isn't that caveat controlling here? Marc D. Stern Associate General Counsel for Legal Advocacy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
RE: TRO against Oklahoma no use of Sharia Law
I'm inclined to think that Eugene's original post (no standing, no ripeness) is spot-on in this case. Maybe there is an argument that anyone who resides in Oklahoma has frequent regular contact with any principle in the Oklahoma Constitution, but I wouldn't buy it. (How would we distinguish this case from any other objection, based on insult, disparagement, or offense, to a constitutional provision? Perhaps standing would be OK in any such case -- suppose the voters declared the state to be a White Supremacist state?) I think the deeper problem here -- and the reason why we have so many anomalous standing doctrines in Establishment Clause law, like taxpayer standing and observer standing -- is that the Clause primarily stands for a polity principle, and not a rights-based principle. So, for example, if Oklahoma voters had approved a provision declaring the state to have a Christian identity, we'd all know that the incorporated Establishment Clause had been violated, but we'd have the same trouble finding a proper plaintiff (one who satisfied Art. III standards) to challenge it in a federal court. Perhaps the Oklahoma state courts would be a more legally hospitable forum (though we would of course want to know more about re-elections or recall elections for state court judges in Oklahoma). Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Tue, 9 Nov 2010 14:11:32 -0800 From: religionlaw-boun...@lists.ucla.edu (on behalf of Volokh, Eugene vol...@law.ucla.edu) Subject: RE: TRO against Oklahoma no use of Sharia Law To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu A A A A A A A A A A A A A A I'm not sure whether Prof. Jamar is making a point about what standing law should be, or what it is now.A But as to the latter, as best I can tell, the Court has never held that anyone has standing to challenge a law just because the law itself endorses or disapproves of a religion.A And Newdow v. Levefre (9th Cir. 2010), http://scholar.google.com/scholar_case?case=753698042392989497, seems to hold that there is no standing in such cases: Newdow lacks standing to challenge 36 U.S.C. AS: 302, which merely recognizes In God We Trust is the national motto. Unlike AS:AS: 5112(d)(1) and 5114(b) [which provide for the placement of the motto on currency], AS: 302 does not authorize or require the inscription of the motto on any object. Without AS:AS: 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the unwelcome direct contact with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stigmatic injury upon them, an abstract stigmatic injury resulting from such outsider status is insufficient to confer standing. Other lower court cases recognizing standing to challenge monuments, city seals, and the like have likewise all stressed the objectors' frequent regular contact with the offending inscriptions and symbols.A Or am I missing something here? A A A A A A A A A A A A A A Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, November 09, 2010 2:04 PM To: Law Religion issues for Law Academics Subject: Re: TRO against Oklahoma no use of Sharia Law Simplest establishment standing case ever. Disfavoring one religion is an establishment violation -- that gives anyone standing. Of course the current court could change the rules and restrict standing in this area as they have in others. Since it is at least theoretically possible that someone in Oklahoma could suffer actual harm from this provision (enforcement of an internationally valid Will which is compliant with Hanafi or Shafai or Wahabi or other schools of Islamic jurisprudence, for example), the court could use this to trim establishment claim standing. On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: I thought I'd ask list members what they thought about this. Here's my post on the subject, in case it's of interest - I'd love to hear whether others on the list agree. http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/
Re: Principles of sincerity/credibility determination
Perhaps there is a connection between the Supreme Court's adoption in Thomas of this principle of individual self-determination of religious belief, and the almost-immediate decline of free exercise protection in the Supreme Court (Thomas, 1981; Lee, 1982; Bob Jones, 1983; Goldman, 1986; Bowen, 1986; Lyng, 1988; Jimmy Swaggart, 1990; Smith, 1990). The only exceptions to the trend are Hobbie (1987) and Frazee (1989), both in the accepted and limited context of Sabbath observance and unemployment compensation. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Tue, 26 Oct 2010 13:03:52 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: Principles of sincerity/credibility determination To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu I thought this paragraph from a post Eugene made on his blog would be a good one to discuss on the list: *** A claimant may prevail only if his beliefs are sincerely held: If a court concludes that the claimant is lying about his beliefs, then his claim will be rejected. (Courts may often be especially likely to scrutinize a claimant’s sincerity when his beliefs seem to coincide neatly with his secular interests, especially secular financial interests.) And my sense is that courts are indeed, rightly or wrongly, more likely to find a belief to be sincere if it is familiar, probably because it is shared by many of the claimant’s coreligionists. But in principle courts ought not focus on that, and should treat beliefs that are minority beliefs even in the claimant’s own denomination, or even beliefs that are highly idiosyncratic, as fully protected at the same level as standard majority Muslim, Jewish, Baptist, Methodist, etc. beliefs might be. *** What I don't understand about Eugene's statement here is what principle says that a court ought not look at whether anyone else shares a claimed religious belief in making a credibility determination about whether the belief is truly *held*. Courts are more likely to find that a Jewish inmate asking for kosher food is sincere than an Orthodox Catholic inmate asking for kosher food. Cf. Guzzi v. Thompson, 470 F.Supp.2d 17 (D. Mass. 2007). That's because the belief that Jews should keep kosher has been around for a long time--and has been adhered to as a practice in many different contexts--indicating that the belief is not contingent on the circumstances and interests of a particular person in a particular situation. That lack of historical or personal contingency is rightfully seen as an indicator of the credibility of the claim that the plaintiff holds the belief. That doesn't mean that the lack of evidence that others hold a plaintiff's idiosyncratic belief should be treated as a strike against a plaintiff's credibility. But it is a positive factor that is, and should be, available to familiar faiths. I don't think that this approach to credibility determinations is any different than those in other contexts. If I am prosecuted/sued for fraud based on my telling others that space aliens have abducted many people from Roswell, NM, my sincerity defense will definitely be helped if many other people hold the same belief, just as it will be harmed if I have a financial interest in leading others to share my claimed belief. So I think Eugene's statement mixes up the credibility determination about whether someone is truly holding a belief with a forbidden determination about whether the content of the belief is true. Courts can legitimately look at whether others hold the same belief in making the former determination, but cannot engage in the latter determination at all. And as a practical matter, the two determinations really should be kept quite separate for the practical reason that courts aren't going to want to help a cheat. Adhering to a formal rule that courts determine sincerity/credibility ensures that judges deal with that concern squarely, rather than by using other parts of the law -- say the compelling government interest test -- to ensure that plaintiffs they suspect are insincere lose in the end. The lack of reliance on sincerity ends up deforming other parts of the law. It may be that Eugene has an underlying concern about whether this approach undermines equal treatment among faiths, and if so, I would be interested to hear him articulate that concern more fully than he was able to within the confines of his post. Eric ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: N.J. public transit employee fired for blasphemy
I'm surprised no one is talking about (speech) market failure. False cries of fire in a crowded theater, incitements of your audience to imminent lawless action, and face-to-face fighting words are classic examples of likely market failure. In the Terry Jones example, the market was producing enormous volumes of speech to the effect of this guy's being a bigoted jerk; this is not the way most Americans think about Islam. If violence erupted overseas in response to a Koran burning, it couldn't have been because the market had no competing ideas in it, or because there wasn't time for those ideas to be expressed. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 16 Sep 2010 12:33:00 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf of Brownstein, Alan aebrownst...@ucdavis.edu) Subject: RE: N.J. public transit employee fired for blasphemy To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Eric is certainly correct that the First amendment protects the expression of ideas -- even if they have the tendency to make audience members so angry that will react violently to the speech. European countries are far less protective of speech. The connection between other kinds of speech and criminal conduct can get more complicated and can't be fully captured by the idea of incitement. But that's another topic. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, September 16, 2010 11:34 AM To: Law Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy The issue Alan raises has come up in the debate over defamation of religions because many European countries have laws regarding incitement to racial or religious hatred, many of which were designed during the post-war period to respond to Nazi tactics against Jewish Germans. These incitement laws would have trouble being applied in the US unless they qualified under Brandenburg. But I don't think what we are talking about with respect to defamation of religions, or burning the Koran or Talmud (apparently Pastor Jones wanted to burn both) is really incitement. There is a big difference between (1) A saying to B C is evil, C should be killedand then B goes out and tries to kill C; and (2) A saying to B your religious beliefs are wrong and B responds by trying to kill A (or innocent third parties C or D, if they happen to be closer). Situation (1) is what is typically meant by incitement and is a lot closer to conspiracy to commit a crime; one can envision some scenarios where A could be held liable. Situation (2) is what French law calls provocation; under French law (and several other Continental legal systems) such a provocation might give grounds for tort liability but it would not justify B's retaliating with violence. I don't see how in situation (2), even when B predictably riots and kills innocent third parties C or D, A can be held responsible for B's actions. B is the agent at fault, not A. There are also some interesting parallels to the crime-facilitating speech issue that Eugene has written about, though I have not really thought those through. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] Sent: Thursday, September 16, 2010 1:24 PM To: Law Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy While I believe that desecrating sacred objects is protected speech, I'm not sure that I'm persuaded by the argument that the critical issue is whether the response of the audience to speech is justifiable or not. In the South, 100 years ago, spreading a false statement that an African-American had attacked or threatened a white woman would have been understood to risk provoking a violent assault on the African-American. Is the speaker's knowingly false statement protected speech in that case because lynching is never justified. I think there are many situations in which expressing a false statement will predictably provoke acts of violence against an innocent person. I'm not convinced that all such statements are protected speech because the acts of violence are unjustified. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, September 16, 2010 9:31 AM To: Law Religion issues for Law Academics Subject: RE: N.J. public transit employee fired for blasphemy Part of the problem with the analogy is that rushing out
Public vs. Private Responsibility for Religious Speech
Several weeks ago, we had discussions on this list re: how to allocate governmental versus private responsibility for various instances of speech with religious content (e.g., whether the transfer to the VFW of the land under the cross in the Mojave Desert National Preserve cures any Establishment Clause problem). Claudia Haupt (a former student of mine, currently an International and Comparative Law Fellow at GW), has now posted on SSRN an insightful paper entitled Mixed Public-Private Speech and the Establishment Clause. Here is the link: http://ssrn.com/abstract=1616167. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 12:01:44 -0400 (EDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Christopher Lund ed9...@wayne.edu) Subject: The Theft of the Mojave Cross To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Has anyone thought about how the theft of the Mojave Cross will affect the legal issues on remand?A A Here are some recent facts-an anonymous letter now claims that the cross was taken by a Veteran who rejects Justice Kennedy's opinion and believes the cross should be removed and replaced with a more ecumenical symbol.A http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html.A (Thanks to Mary Jean Dolan for sending the link to me.) It seems to me though that the thief's actions may lead to the opposite of what they intended.A That is, I think the cross is now on a more secure footing than ever. A Remember that plaintiff's counsel at oral argument conceded that, if the cross were taken down before the land transfer, the land transfer would then be consistent with the terms of the injunction.A So now, if the VFW and the government just wait to replace the cross until after the land transfer goes through, the plaintiff would probably have no case.A I mean, I think it's possible to read the injunction (which bars the government from permitting the cross) as still inconsistent with the land transfer, but the plaintiff has already disavowed this reading and even Justice Ginsburg seemed to find it untenable. Final note:A The last line of the anonymous letter reads, Perhaps this was an inappropriate form of protest if so I humbly request your forgiveness and understanding for the actions that I have taken here.A I think the writer misunderstands the gravity of his or her actions. A I would think that, among other things, removing the cross like this at least violates 18 U.S.C. AS: 1369, which gives up to a ten year sentence to whoever willfully injures or destroys a war memorial.A Whoever did this needs to seek counsel immediately to hopefully give back the cross and negotiate a good resolution to this. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MIA 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
RE: A real-life on-campus example
Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm in principle) from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 09:35:34 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: A real-life on-campus example To: hamilto...@aol.com,Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Esenberg, Richard richard.esenb...@marquette.edu Nothing CLS has said challenges Hastings' duty to enforce rules against its own discrimination on the basis of inter alia sexual orientation or religion. As Gilmore v. City of Montgomery holds, however, a city's duty not to engage itself in (there racial) discrimination ) does not authorize it to deny non-exclusive access to public spaces to groups that engage in such discrimination. The Court held there that to enforce non-discrimination rules against such private groups (schools!) would deny the segregation academies freedom of association. Why isn't Gilmore controlling here? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, May 13, 2010 9:19 AM To: Esenberg, Richard; Law Religion issues for LawAcademics Subject: Re: A real-life on-campus example Of course the marketplace works as I described it especially in the US. Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. Groups spin off of other groups. The many religions that supported slavery and the subjection of women and children to state-sponsored patriarchal control have had to adjust or choose the sidelines. Hasn't CLS conceded that the school can enforce race discrimination laws? Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Esenberg, Richard richard.esenb...@marquette.edu Date: Thu, 13 May 2010 12:32:59 To: hamilto...@aol.comhamilto...@aol.com; Law Religion issues for LawAcademicsreligionlaw@lists.ucla.edu Subject: RE: A real-life on-campus example The right of expressive association is not a demand for government protection in the market place of ideas or a demand for government support. It is, rather, a shield against government compulsion, i.e., the demand that an organization not define itself by adherance to any particular creed or that it engage in practices
RE: A real-life on-campus example
Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 13:59:20 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 09:26:48 -0700 From: religionlaw-boun...@lists.ucla.edu (on behalf
RE: the stolen Mojave Desert cross
Some additional information re: the theft, the perpetrator, and his/her motives: http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 15:05:29 -0400 (EDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Ira (Chip) Lupu icl...@law.gwu.edu) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Thu, 13 May 2010 13:59:20 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach erassb...@becketfund.org) Subject: RE: A real-life on-campus example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip - Does the situation where the Mormon student shut down the Washburn chapter of CLS represent the sort of dynamism, openness and challenge you are talking about? (That's the real-life on-campus example you asked for earlier and was cited in Petitioner's brief at page 33.) That scenario seems to create the opposite of dynamism, by allowing one student to enlist the government in shutting down the dialogue altogether. Remember, we aren't talking about the ability to create dialogue--CLS meetings are open to all students--we are talking about the ability of one group of students to get the government to withdraw permission from another group of students to use email, bulletin boards, etc. to communicate with the rest of the student body. Conditioning permission to speak to the entire student body on relinquishing any ability to affirm a specific set of beliefs burdens freedom of association under Healy. The sort of open-source associational dynamic you describe sounds nice if you don't get too specific about how it actually works in practice, but in reality even open-source systems always need exclusionary rules for there to be a coherent dialogue. Even Wikipedia has rules against vandals. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] Sent: Thursday, May 13, 2010 1:30 PM To: Law Religion issues for Law Academics Subject: RE: A real-life on-campus example Alan asks a good question about the standard of review. This is a designated public forum. The reasonableness standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do
RE: Factual Clarification re CLS
This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can
RE: Factual Clarification re CLS
Did this attempted takeover of the anti-cult group by Scientologists happen in a law school, or other educational institution, where the cooperation incentives are maximized? If you are going to offer real examples, more details would be helpful. In the world of truly private associations (like religious congregations, or the Boy Scouts)), the right to exclude is of course a trump against any state-imposed policy of mandatory inclusion of all comers. But that doesn't mean that a state university must recognize that right to exclude when it sets a policy about access to the forum -- in that context, nondiscrimination among groups is the controlling norm. And all-comers is nondiscriminatory. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 16:49:55 -0400 From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern mst...@ajcongress.org) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu It is not true that it never happens. I think it was scientology in the late 70's or early 80's Scientology tried to take over an anti-cult group,invokng the Unruh Act. The California courts saw through the effort. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu Sent: Monday, May 10, 2010 4:41 PM To: Law Religion issues for Law Academics Subject: RE: Factual Clarification re CLS This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to all comers (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical
Re: Salazar
Marci wrote: I would not have thought it possible that a majority of the Supreme Court today would agree that white crosses are the standard marker for our diverse array of soldiers. Such an agreement did not occur in Salazar. (Of the six Justices who addressed the merits, three would have affirmed.) Justices Scalia and Thomas concurred in the judgment, on the ground that Mr. Buono lacked standing to seek what Scalia called an expansion of the injunction, to cover a display of the cross on land that the U.S. sought to transfer to a private party. Scalia may well have felt somewhat trapped by his McCreary County dissent, in which he strongly emphasized that the Ten Commandments were a text shared by western monotheists -- Jews, Christians, and Muslims. I also think Scalia may have been (appropriately) chagrined by his exchange in the oral argument in Salazar, when the ACLU counsel reminded him that Jewish cemeteries will not display crosses on gravestones. So we don't really know what Justice Scalia would say on the merits of government sponsorship of a cross as a war memorial (and perhaps he will forever argue that no one has Article III standing to ! ch! allenge such a display, so he never has to reach those merits.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 17:07:15 EDT From: religionlaw-boun...@lists.ucla.edu (on behalf of hamilto...@aol.com) Subject: Re: Factual Clarification re CLS To: religionlaw@lists.ucla.edu I think Rick misreads Justice Breyer's comments. He was playing Michael, saying, tongue-in-cheek, that it would be fantastical that there would be this open exchange between opposing views on a law school campus. Michael was resisting agreeing that such an exchange was likely or good, and so Breyer needed to bring him back to another view of the universe to get Michael to answer the question he wanted answered. Careful reading of the transcript does not support Rick's interpretation. I think a law school has a compelling interest in having an all-comers policy, because it encourages lawyers to see all sides of every issue, regardless of their existing predispositions, which is crucial to becoming a good lawyer, no? In any event, this case is not about whether or not this group can protect its associational rights to exclude certain believers and actors. It is about whether a public university law school must provide certain meeting rooms and certain bulletin boards and money to a group that insists on exclusionary practices among its voting membership and leadership. There are no rules that forbid the group from meeting or holding the beliefs it holds. It is an attempt to move Rosenberger beyond its facts. I thought Rosenberger was wrongly decided, but cleverly argued. I think the Court needs to draw the line on this foolhardy doctrine before schools are required to have to pay for all worship services, which surely is not required by the First Amendment. Only Chief Justice Roberts and Justice Alito made any real effort to defend CLS's position, which seems to me to bode well for Martinez. But I would not have thought it possible that a majority of the Supreme Court today would agree that white crosses are the standard marker for our diverse array of soldiers, so as usual, it will be interesting to see what happens. Marci In a message dated 5/10/2010 4:41:46 P.M. Eastern Daylight Time, icl...@law.gwu.edu writes: This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to invade and destroy the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on
RE: Factual Clarification re CLS
I was at the oral argument in CLS v. Hastings. I think Marci's interpretation of Breyer's questions and comments is quite right. We'll know soon enough, but (from his questions, tone, and facial expression -- the latter two don't come through in a transcript -- at argument) I will be very surprised if Breyer joins an opinion that says an all-comers policy in this context is unconstitutional. If social liberals join a conservative Christian group, and succeed in changing the message, conservative Christians can leave and form a new, conservative Christian group. Do list members think the socially liberal Christians will just keep hunting down and infiltrating such groups? This seems fantastical (and slightly paranoid) to me. I'm still waiting for real-life, on-campus examples of such behavior. To Art Spitzer's question -- I don't know how you can say the purpose of an all-comers policy is fully served by allowing dissenters to attend meetings, but not vote or hold office. This is a matter of degree -- the more that dissenters can exercise political influence in the group, the more the interchange within the group may be open, dynamic, and non-dogmatic. Those may not be purposes that religious congregations may prefer, but the law school can have its own, independent purposes for insisting on access to full membership for all comers. (Whether anyone at Hastings LS really thought all of this through is another question, but CLS did stipulate that all comers is among the relevant policies.) Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 14:45:10 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Perhaps democrats will not attempt to take control of the Young Republicans. But I think there is a good chance that socially liberal Christians may take control of a conservative Christian group that can't protect its doctrinal beliefs through its membership policy. By the way, it is clear that the CLS allows all comers to attend its meetings. This case is strictly about who can control an organization's beliefs and speech, not about who may attend meetings. I have read the oral argument transcript several times. And it is clear to me that Breyer believes an all comers membership policy is silly and completely inconsistent with a marketplace of ideas in which many groups with different beliefs debate and express different ideas from very different perspectives. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
RE: Factual Clarification re CLS
Rick writes If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression. But this is more fantasy and fear. Students do and will self-select. The moderate feminists group will not take over the radical feminists group. The Republicans and Democrats will not co-opt each other and form the single political group of the mushy middles. Groups can form and reform at will (most schools require only a very small number of students to form a new, recognized group.) What some on the list seem concerned about is a group's right to maintain a constant and religiously orthodox message. Congregations have every right to insist on that, and to chose members, leaders, and even attendees at worship or lectures accordingly. But state schools do not have to support a structure that protects religiously orthodox messages. The forum can have many purposes, including not only diversity (which Hastings and others will inevitably have), but the opportunity for students to join a group and challenge its orthodoxy (however infrequently that happens, because of self-selection, exit options, and mutual forbearance). It's that right to join and challenge purpose that the all-comers policy may advance. And that purpose -- quite legitimate in this context -- is in perfect tension with the right to exclude that CLS advances in this case. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law 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 Original message Date: Mon, 10 May 2010 15:28:12 -0700 (PDT) From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan nebraskalawp...@yahoo.com) Subject: RE: Factual Clarification re CLS To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Alan asks a great question: I understand that the facts of CLS v. Martinez case are limited to voting membership and eligibility for leadership positions. But if the foundation of the CLS claim is that it is being required to sacrifice its freedom of association rights to obtain access to a designated public forum, why wouldn’t those associational freedom rights also extend to deciding to who may attend meetings and participate in discussions? Just asking. I think the essence of expressive association is that an expressive group speaks through its leaders, and leaders are elected by voting members. Hastings has created a limited public forum for the express purpose of creating a diverse marketplace of ideas. Even if the all comers policy is viewpoint neutral, Hastings reason for excluding a student group from its forum must be reasonable in light of the purpose of the forum. This policy is not reasonable in light of the purpose of the forum; it is destructive of a marketplace of ideas, of a forum in which groups with diverse beliefs come together to debate and express very different views about the good life and what is true, what is good, and what is beautiful. If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression. Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to
Re: Bowman v. U.S.
Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip Original message Date: Mon, 4 May 2009 09:41:16 -0700 From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years of service needed to obtain a full twenty-year military retirement. But the program excludes participation in activities of organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization (as well as in activities of for-profit businesses, labor unions, and partisan political organizations). Thus, for instance, if someone were volunteering to teach in a school program aimed at spreading various controversial views on environmental responsibility, or social justice, or civil liberties, that would presumably count. But if someone were volunteering to teach in a school program aimed at spreading religious views, that would not count. The Sixth Circuit upheld this against a Free Exercise Clause challenge, citing Locke v. Davey. Is that right? What should the result have been under the Free Speech Clause, if such a claim had been made (presumably relying on Rosenberger)? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Bowman v. U.S.
And how would you, Rick, analyze the free speech issue if the the exclusion covered: participation in activities of organizations teaching about, counseling, advocating, or performing abortions? In Locke, and in the abortion case, and in your hypothetical, the government must only have a non-arbitrary reason for the exclusion. In Locke, the non-arbitrary reason had to do with not funding the training of clergy; in my hypothetical, the reason would be just like that in Rust v. Sullivan and its progeny (that the government is pro-life, and does not want its resources to support a certain cause, thought immoral by many citizens). Perhaps your hypothetical would similarly be OK, particularly on the gay marriage point. Excluding organizations that teach about the need to reduce global warming is a bit tougher, but not much -- the cause is controversial, and the state does not want to be creating incentives for people to advance that cause. They remain free to advance it with their own resources. In Bowman, the non-arbitrary reason for exclusion is not so easy to find, but perhaps it is designed to keep the government away from the question of whether a particular religious organization serves any public good (the organization might get a tax exemption, but those who help it can't get this sort of credit toward a military pension). If all religions must be included in the retirement credit system, perhaps the government would be a bit stingier in recognizing a religion for tax exemption purposes. That doesn't sound to me like a healthy constitutional trade-off. The rule upheld in Bowman is a product of a now abandoned constitutional regime, which is why Bob Tuttle and I were surprised that DoD still had this rule, and that DOJ defended it. But its provenance does not make it unconstitutional, especially in light of Locke. Chip Original message Date: Mon, 4 May 2009 12:38:43 -0700 (PDT) From: Rick Duncan nebraskalawp...@yahoo.com Subject: Re: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu How would you all analyze the Free Speech Clause issue in a case that was like Bowman except ? Would it violate the Free Speech Clause to allow military service personnel to accumulate pension rights via volunteer service in all non-profits except those excluded in the hypo above? If so, don't we have the same free speech issue when the exclusion concerns volunteering for schools teaching from a religious perspective? Again, if the dictum in Locke v. Davey applies, it applies to these secular speech exclusions as well, since Rehnquist merely concluded that a scholarship is not a forum triggering the Free Speech Clause. So, under Davey, a scholarship exclusion for students majoring in gender studies from a feminist perspective would also have failed to trigger the Free Speech Clause. If this seems wrong, it is because it does indeed implicate the FSC to take the viewpoint of the major into account when awarding scholarships such as the Promise Scholarship. The Rehnquist dictum in Davey is both unreasoned and wrong. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 9:41 AM Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years of
RE: Using religion for government purposes
Eugene has been criticizing arguments, including some of mine, without offering any affirmative account of his own as to whether the Constitution imposes any limits on government religious speech. Let me offer a few more comments, and then put the matter back to him: 1. I never suggested that divisiveness is a useful test. It's not. For reasons to which Doug alludes, it is a justification for some restrictions, but it's much stronger in some cases (sectarian legislative prayer; the cross on the roof of City Hall) than others (school vouchers that can be used at any private school). It was not strong either way (as a reason for courts to remove the monument, or as a reason for courts to refuse to remove the monument)in Van Orden. 2. My reference to totalitarianism was not meant to equate Chanukah menorahs on City Hall lawn with the repressive practices of Nazi Germany or Soviet Russia. It was meant to suggest a theory of the penultimacy of the American state. Totalitarian states co-opt or outlaw religion because they seek to establish the state as an object of veneration or worship; curbing that tendency should be an aim of Establishment Clause jurisprudence (as John Ely once wisely wrote, the Establishment Clause is a separation of powers provision). 3. That governments frequently ignore the Madisonian injunction not to use religion as an instrument of social policy doesn't make such a practice normatively acceptable. Governments frequently try to repress dissent, too. Any such instrumental use is bound to produce religious favoritism. 4. No one has yet formulated a good and simple test in this area. The no-endorsement test is a failure because it asks the wrong question (i.e., who might be made to feel excluded and why), because it is infinitely manipulable, because the qualities of the reasonable observer are doing all the work, and because the back and forth among O'Connor, Blackmun, and Brennan with respect to the Christmas tree, the Chanukah menorah, and the peace sign in Allegheny County made the whole enterprise into a bad joke. 5. My own view (talking and writing with Bob Tuttle has helped me greatly on this, but this post is entirely my own)) is that religious speech by government should be limited to 1) accommodation of the needs of those under substantial government control (e.g., prisoners, members of armed forces); 2) ceremonial acknowledgments (e.g., God save this Honorable Court), which to preserve their ceremonial character should be as non-sectarian as possible; and 3) historical acknowledgments (names of cities, perhaps others as well). Cultural acknowledgments (Merry Christmas!) are on the borderline, because they can shade into what I would definitely rule out -- government-sponsored veneration of a deity, and government assertions of theological truths. Those kinds of statements do tend to be the most inclined to involve the state in religious conflict (and therefore to be divisive), to make the state a partner in ultimate claims, and to establish an official faith. So the permanent cross on the roof of City Hall is a very easy case for me, because it cannot be explained in our culture as anything but a veneration of Christianity and/or a symbolic proclamation of Christian truth and authority. How about for you, Eugene? Are you with Rick Duncan in saying that decisions about governmental sponsorship of such a symbol should be left to local politics? Or, if you think such a cross is not constitutionally acceptable, what test are you applying? Chip Original message Date: Sun, 29 Mar 2009 16:09:56 -0700 From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: Using religion for government purposes To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu As I understand it, throughout American history the government has repeatedly, in a vast range of contexts, invoked a particular conception of God -- one God, who created the world, who sets a moral code for us, who judges us (the Supreme Judge of the world), and who may protect us in certain situations (a firm reliance on the protection of Divine Providence). This is a pretty broadly ecumenical conception of God, but it is still one view of God. So I don't really see how history supports rejection of the continued use of this conception in government speech. Likewise, while there is some strand of constitutional case law that would condemn every government reference to that conception of God, the case law is pretty clear deeply mixed, with the bottom line supporting the constitutionality of at least some such reliance (see Marsh and Van Orden). So I'm not sure that arguments based on constitutional case law on balance support rejection of the continued use of this conception in government speech. Finally, while there has been an evolving cultural commitment in favor of religious inclusivity, my sense is that the acceptance
RE: Summum
Rick likes to call the restriction on government religious speech a heckler's veto, because that's a pejorative. And I must say that the endorsement approach, and a focus on offense taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be under God, not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S. Rick keeps harping on liberty and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says Christians welcome here? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical). Chip Original message Date: Thu, 26 Mar 2009 20:00:19 -0700 (PDT) From: Rick Duncan nebraskalawp...@yahoo.com Subject: RE: Summum To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu I agree with Doug that unlike political issues, we don't need to vote to determine what religion we are. But much govt speech is not about political issues and elections. A lot of government speech endorsing religion has to do with govt recognizing religious holidays and recognizing religious cultural subgroups in the community or as part of the community's history. If the EC endorsement test only prohibited government speech taking an official position on religious doctrines such as the doctrine of election or the divinity of Christ, I would not be too concerned (although I might still wonder how anyone has a liberty interest to justify such a claim under the incorporated EC). And frankly, the political process is almost always a sufficient check on govt endorsing specific religious doctrines. But, of course, much govt religious speech is of the cultural type--Christmas displays or Ten Commandment displays and the like. In other words, it is not about elections, but about recognizing we are a nation of many different communities with many different cultures, including religious subgroups and religious cultures, and religious history. Religious subgroups are part of the culture as well--if a public school may celebrate Gay Pride Week and Black History Month and Earth Day and Cinco de Mayo, there is no reason to forbid it from recognizing Christmas. Those who are offended by any of these displays can avert their eyes. There is no liberty to silence govt speech recognizing religious holidays and religious subgroups as part of a pluralistic community. Liberty is best served by protecting the right of the govt to recognize that religion is part of the culture and by protecting the right to receive govt speech of those who wish to view religious displays as part of the govt's recognition of our culture and pluralism. The heckler's veto created by the endorsement test is a liberty-restricting, not a liberty-protecting, interest. It is a right to control what kind of govt expression a willing audience can view, even though the only burden on the Pl is the burden of averting the eye. This is the kind of issue I love discussing in class. And my students understand that the solution is not as simple as saying that religious speech is different from secular speech under the First Amendment. Sometimes it is, and sometimes it isn't. Rick Duncan Welpton Professor of Law
RE: Summum
I can see that Rick just doesn't accept the idea that religion is constitutionally distinctive for purposes of non-coercive government support. And, without an Establishment Clause, I suppose it's not. So, in some towns, we'll get crosses on City Hall and Christians welcome signs. (Recall that in my hypo, no one was told they were unwelcome, homophobes or not.) I don't want to live in a town that would put a cross (or a Star of David, or other sectarian symbol) on City Hall, so I'm quite glad that the Estab Clause does apply to the states. And once we return to the legal status quo, we're back to the question of religious distinctiveness. As Doug says, the government may (sometimes must) have policies on war vs. peace, or civil rights of gays. There is no reason for government to have a religious view. Religious people are not silenced by this; they are free in the private sector to express their view. But they don't get government amplification. Eugene suggests that the endorsement test causes divisiveness. I'm no fan of the test, but it's obvious that all Religion Claus litigation causes divisiveness; what does that prove? Fighting in court over religion clause limits sees far less destructive of the polity than fighting in politics over whose faith gets amplified by the government. I noticed that no one wanted to take on the idea that government is under God, and not one with God, nor is it free to claim the loyalties associated with God. That's the core here, not the idea of offense, to which Rick endlessly returns. Chip Original message Date: Fri, 27 Mar 2009 08:22:09 -0700 (PDT) From: Rick Duncan nebraskalawp...@yahoo.com Subject: RE: Summum To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu I think Eugene makes a great point about the divisiveness caused by the endorsement test. When you enjoin a governmental religious display (such as the Nativity scene I keep harping about), you don't merely silence the govt. You also impose silence on the willing audience (private citizens who wish to see the display). These are many of the same people who were told to avert their eyes when they were offended by the Gay Pride display. This adds insult to injury, and results in people reasonably feeling like outsiders who must play a heads you win tails we lose game with their secular counterparts in the marketplace of ideas. Rick Duncan ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
RE: Using religion for government purposes
Perhaps it would be useful to quote the following from Madison's Memorial and Remonstrance (a document that some would claim has constitutional significance, though of course that is contested): 5. Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation. Chip Original message Date: Fri, 27 Mar 2009 09:51:06 -0700 From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: Using religion for government purposes To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Whether or not that distinction is sound as an empirical matter – and, given the tradition of using religious invocations for ceremonial purposes, for national mourning, and other similar reasons, it’s hard to see all or most political use of religious talk as “crassly instrumental [and] low-political” – I take it that this is not a distinction that constitutional law can easily draw, no? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Friday, March 27, 2009 9:37 AM To: religionlaw@lists.ucla.edu Subject: Re: Using religion for government purposes May I respectfully suggest that one difference between Lincoln and perhaps) all of his successors is that he was a profoundly serious man who was not using religion for crassly instrumental low-political purposes. Sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: An Interesting Govt School Censorship Case
I appreciate Rick's calling our attention to this case, and I deeply appreciate Allen's amplification of the historical record. I forwarded Rick's post yesterday to several students who are writing papers for me on issues related to this case, but I warned them not to take the ADF release at face value. I of course forwarded Allen's post to those students this morning. Chip Original message Date: Wed, 4 Mar 2009 10:46:42 EST From: aa...@aol.com Subject: Re: An Interesting Govt School Censorship Case To: religionlaw@lists.ucla.edu Although I'm not claiming the school was correct in this instance, there is a context to the case that the ADF press release completely leaves out. I used to be surprised at the dishonesty of these ADF press releases, but now I see them as puzzles where the challenge is to find the actual facts. From this press release, for example, you'd never know that the ACLU successfully challenged several practices in this school district that violated the Establishment Clause. The closest the press release comes to revealing that information is the two sentence paragraph: The American Civil Liberties Union previously sued the school to stop it from recognizing such events, including “See You at the Pole” and the National Day of Prayer. In May 2008, a federal judge refused to grant the ACLU’s request. Now, if you follow that link, it leads to an ADF page that, again, never mentions the school's Establishment Clause violations and describes the May 2008 result like this: “This is a win for religious freedom and, if not a total loss for the ACLU, certainly a hollow, shallow victory. Even worse, that ADF page provides a link to the ACLU complaint that starts on page 19, again cutting out the most pertinent facts. Similarly, the link to the judge's decision on that page leads to another ADF page that includes only the order, cutting out the memorandum describing in detail the school's Establishment Clause violations. The full judge's decision is included in the May 30, 2008, ACLU press release on the Wilson County case at: http://www.aclu.org/religion/schools/35742prs20080530.html Here are five pertinent paragraphs: The lawsuit, Doe v. Wilson County School System, filed by the American Civil Liberties Union of Tennessee (ACLU-TN) charged that a variety of religious activities occurring at Lakeview Elementary School in Mt. Juliet, including praying during school hours by a group of parents who then distributed fliers in classrooms informing individual students they had been prayed for, were unconstitutional. In a strongly worded 59-page decision, the Judge ruled that school officials were engaged in a systematic pattern of religious violations and that the school supported and tolerated religious activities taking place on its campus, said Hedy Weinberg, ACLU-TN Executive Director. After nearly two years of litigation, the Court ruled that Lakeview Elementary School administrators can not continue to give preferential treatment to a religious group called the Praying Parents. In the past, this religious group was given nearly unfettered access to students and faculty to promote Christianity and prayer. In finding that these activities violated the First Amendment, the Court found that the effect of the group's predominant religious purpose was to advance Christianity at Lakeview. The school administration apparently agreed with the group's purpose and activities and did not properly monitor and supervise their activities on school property, and, by allowing these activities, the school tacitly or overtly endorsed the group's activities. By doing so the school became excessively entangled with the group's religious activities, and abandoned the school's constitutional obligation to maintain strict neutrality toward religion. The Court issued an injunction preventing any group from being given preferential treatment and ordering that all individuals and groups requesting access to the school request permission and be treated equally. The Court also admonished the school for allowing teachers and administrators to be active participants in religious activities at the school, for displaying the Ten Commandments in the school hallway and for allowing the distribution of Gideon's Bibles to students. One reason I've been such a loyal member of the ACLU for so long is because I've always been impressed with the way the ACLU sticks to its principles and sticks to the truth. I've seen occasional errors in ACLU press releases, but never the dishonesty with the facts that I habitually find in these ADF ones. Ironically, this press release
Re: An Interesting Govt School Censorship Case
Equal access does not mean the school must be totally indifferent to the content of the posters and flyers. Especially in a context in which the school has a history of Establishment Clause violations, it should have some discretion to make certain that it does not violate court orders or invite a new lawsuit. The posters for See You at the Pole were allowed. Mentioning that what will happen at the Pole is group prayer among students should also be allowed. And we can all see that censoring In God We Trust is foolish and unnecessary. But the Establishment Clause interdicts some religious speech by government (that is, religious speech does not get equal access in the competition for what government may promote), and government (especially with this sort of history) has to have some room to ensure that it is not complicit in another violation. Does Rick or others think that students in this school (or any other) have a 1st A right not simply to advertise the event, but to add to their posters All those who seek salvation through Jesus are welcome? Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Statue of Jesus and the FHA
Micah's post below suggests the problem analogous to that sometimes raised under RFRA or RLUIPA -- may the state accommodate by statute a religious message, but not its secular analogue? The standard answer is that the appropriate remedy is to extend the right to all, rather than to strike the accommodation, in large part because the secular expression has its own First Amendment provenance. When the accommodation does not involve constitutional rights (e.g., exemption for religious use of peyote, and others want to use peyote for non-religious reasons), the argument for remedy by extension is frequently more troublesome. Original message Date: Thu, 6 Nov 2008 12:55:33 -0500 From: Micah Schwartzman [EMAIL PROTECTED] Subject: Statue of Jesus and the FHA To: religionlaw@lists.ucla.edu In response to Bloch v. Frischholz (7th Cir. 2008), which held that residents were not entitled under the Fair Housing Act (FHA) to post mezuzahs, Congress has been considering legislation to amend the FHA to protect religious symbols. Here is the text of the proposed amendment, titled the Freedom of Religious Expression in the Home Act of 2008 (H.R. 6932): Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by adding at the end the following: (g) To establish a rule or policy that prevents a person from displaying, on the basis of that person's religious belief, a religious symbol , object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship. Suppose this amendment to protect religious symbols is passed. What would be the legal status of non-religious displays? If a homeowners' association adopts a policy barring all forms of displays (as was the case in Bloch), and if the FHA creates an accommodation for religious expression, would someone who wants to post a non-religious display have grounds to object? Suppose a resident posts a sign saying, God loves McCain. Now another resident posts a sign that says Vote Obama. The homeowners' association removes both signs. The McCain supporter makes a claim under the amended FHA to protect his religious expression. What about the Obama supporter? Here are a couple possibilities: (1) The Obama supporter might have an Establishment Clause challenge to the FHA amendment. The claim would be that the amendment is an accommodation that burdens non-beneficiaries. Citizens whose political views are religiously informed gain an advantage over citizens who aren't religious (or whose political views aren't religiously informed). (2) Perhaps the Obama supporter could also claim that the amendment in effect creates a public forum by restricting homeowners' associations from preventing certain forms of speech. But if that's the case, the amendment is viewpoint discriminatory, because it only protects religious speech. Any thoughts about those possible challenges? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Virginia ban on state troopers mentioning Jesus Christ in public prayers
Chaplains speaking at public events are not ministering to the particular religious needs of state troopers (in that private context, chaplains can pray in ways that accommodate and facilitate the beliefs of those to whom they are ministering). At public events, open to all (and sometimes mandatory) chaplains are the voices of the state, and should be limited to ceremonial, non-sectarian prayer. Bob Tuttle and I discuss this question in our paper on the military chaplaincy, 110 W. Va. L. Rev. 89, 148-159 (2007). There is lurking here a prior question of whether the government should be free to appoint chaplains in the first place for police officers, firefighters, or public employees generally (as Indiana recently did, only to back down in the face of a lawsuit). Police officers and firefighters, unlike prisoners and members of the armed forces, are not under the care and control of the government. Why is government ministering to police officers and firefighters, who are free to seek their own private, spiritual counsel? Original message Date: Fri, 26 Sep 2008 11:21:42 -0500 From: Christopher Lund [EMAIL PROTECTED] Subject: Re: Virginia ban on state troopers mentioning Jesus Christ in public prayers To: religionlaw@lists.ucla.edu A necessary travesty? More proof that religious liberty and legislative prayer are like Harry Potter and Voldemort - neither can live while the other survives? Best, Chris __ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 [EMAIL PROTECTED] 9/26/2008 10:08 AM Thoughts? http://www.washingtonpost.com/wp-dyn/content/article/2008/09/24/AR2008092403471.html?hpid=sec-religion -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
summer seminar in law and religion
The Institute for Constitutional Studies (directed by Maeva Marcus) at George Washington University Law School is sponsoring a seminar this summer on law and religion. The seminar - which is primarily for grad students junior faculty - is being led by Judge Michael McConnell and Professor Mark Noll. The details are here: http://docs.law.gwu.edu/ics/Religion%20and%20Constitution%20Announcement.pdf Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: summer seminar in law and religion
Follow up to my e-mail of a few moments ago with the announcement of this seminar -- there is still room in the seminar, and late applications are welcome. Original message Date: Tue, 29 Apr 2008 15:47:50 -0400 (EDT) From: Ira (Chip) Lupu [EMAIL PROTECTED] Subject: summer seminar in law and religion To: religionlaw@lists.ucla.edu The Institute for Constitutional Studies (directed by Maeva Marcus) at George Washington University Law School is sponsoring a seminar this summer on law and religion. The seminar - which is primarily for grad students junior faculty - is being led by Judge Michael McConnell and Professor Mark Noll. The details are here: http://docs.law.gwu.edu/ics/Religion%20and%20Constitution%20Announcement.pdf Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Establishment Clause and government action outside the U.S.
Eugene: The case is Lamont v. Woods, 948 F.2d 825 (1991). John Mansfield has a good article about this problem in the DePaul L Rev in 1986. And Bob Tuttle and I discuss the problem of U.S. overseas expenditures on religion in a comment, located here, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=26, on US AID participation in the faith-based initiative. Chip Original message Date: Thu, 21 Feb 2008 15:19:06 -0800 From: Volokh, Eugene [EMAIL PROTECTED] Subject: Establishment Clause and government action outside the U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu I vaguely recall that there was a case dealing with an Establishment Clause challenge to some government action outside the U.S. -- perhaps government funding of certain religious institutions or some such. But my quick searches couldn't find it; can anyone help me? Or am I just making it up? (I did find the cases challenging our reactions with the Vatican, one involving Fred Phelps of funeral picketing infamy.) Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
RE: Scalia and Motive
I think we have to go back to Prof. Finkelman's realist question: Justice Scalia has (both before and after Smith) voted to uphold Free Exercise claims (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against the government in an Establishment Clause case (including Edwards v. Aguillard, and Santa Fe Ind. School District v. Doe, which are probably the two toughest Est CL cases in which to side with the government during his tenure on the Court.) So will Justice Scalia ever see an Establishment Clause claim that he likes? Or does he just find reasons to vote against them all? I'll use this question to slide into a piece of shameless self-promotion. Gene Nichol just resigned from the William Mary presidency, in part over a controversy re: his removing a cross from its default place on the altar table in the school's chapel (the cross can be returned to the table during Christian worship). W M is a state university. Wasn't Nichol just acting as the Constitution requires in removing that cross from its permanent place on the altar table? What would Justice Scalia say if the new W M President returns the cross to that space, and the matter is litigated? Bob Tuttle and I have explored the question raised by the William Mary situation (though we of course did not focus on Scalia) in The Cross at College: Accommodation and Acknowledgment of Religion at Public Universities, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090218. I suspect that Scalia would vote to uphold such a placement of the cross in that chapel on some sort of historical acknowledgment ground, though (as we show in the piece) that argument is very weak in this case, because the Wren Chapel at W M is designed to look like an 18th century Anglican chapel, and such chapels would not have included a cross. So the cross in that chapel is, as we say in the piece, glaringly anachronistic. Original message Date: Tue, 19 Feb 2008 09:56:24 -0500 From: Douglas Laycock [EMAIL PROTECTED] Subject: RE: Scalia and Motive To: religionlaw@lists.ucla.edu Mark and Eugene have plausible theories on Tx Monthly and Smith. But no one seems to have a plausible theory on Lukumi and Kiryas Joel. The Kiryas Joel argument about motive is not just accepting existing establishment clause doctrine arguendo, because existing establishment clause doctrine was Lemon, where either a religious purpose or a religious effect or entanglement was fatal. Certainly no requirement of motive. He might have been accepting and importing equal protection doctrine, but for someone as hostile to motive as he claims to be, it makes no sense to import motive into a new doctrinal area. Quoting Volokh, Eugene [EMAIL PROTECTED]: I had thought that the Texas Monthly dissent was simply accepting the pre-Smith Free Exercise Clause caselaw, whether because Scalia at the time hadn't yet squarely focused on the question -- recall that he joined the majority in Hobbie two years before, and didn't join Rehnquist's dissent, and that he joined the unanimous Court in Frazee a month or two after Texas Monthly -- or because he thought the Court's majority still supported the Sherbert/Yoder regime and wasn't ready to go along with what eventually became his view in Smith. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, February 18, 2008 7:24 PM To: religionlaw@lists.ucla.edu Subject: RE: Scalia and Motive I certainly agree that Smith is inconsistent with his Texas Monthly dissent. There he said the the Constitution permits, and sometimes requires, exemptions for religion. Quoting Brownstein, Alan [EMAIL PROTECTED]: At least in free exercise and establishment clause cases, I have never thought it was possible to reconcile what Justice Scalia says in his various opinions. Compare his opinion in Employment Division v. Smith with his dissenting opinion in Texas Monthly, one year earlier. I thought his opinion in the Watchtower Bible Society case was inconsistent with the hybrid rights language in Smith as well. Alan Brownstein From: [EMAIL PROTECTED] on behalf of David Cruz Sent: Mon 2/18/2008 6:37 PM To: Law Religion issues for Law Academics Subject: RE: Scalia and Motive Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo,
RE: Scalia and Motive
William Mary was a private college when the chapel was first built in the 18th century. By the time the chapel was restored in the 1930's, however, W M had become a state school, though the Supreme Court had not yet held that the Estab Clause applies to the states. Once the Clause did apply, surely there was a strong question about whether it permitted such a prominent position for a cross in the college chapel (especially when the cross is only about 24 inches square, and is easily moved.) So the argument from history or tradition is a bit facile in this context. As for Mark Scarberry's comment re: the president's failure to consult -- that might have been wise for a college president in these circumstances, and it might have led to the current compromise (putting the cross in a display case, marked with a plaque containing historical info about how the cross came to be in the chapel, and placing the case against a side wall of the chapel except during Christian worship) more smoothly if he had done so. But that's an argument about institutional process, not about establishment of religion. Making Christianity the default designation of a state university chapel seems rather hard to square with any version of a non-Establishment norm, unless you believe in some sort of adverse possession theory of non-Establishment (or, like Justice Thomas, you just think the Clause doesn't apply to the states -- but that's not Scalia's position). An adverse possession! t! heory would be very convenient for Christians, and very hostile to any attempt by a faith newly prominent in the U.S. to have its symbols displayed in a privileged position by the state. Original message Date: Tue, 19 Feb 2008 09:34:26 -0800 From: Volokh, Eugene [EMAIL PROTECTED] Subject: RE: Scalia and Motive To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Not having read your article, I can't say much on the subject. For everyone on the Court (except Justice Thomas) context -- especially the historical meaning -- seems to matter, so one would need to know more of the details. The presence of a 200+-year-old chapel on campus would pretty clear be constitutional even for the Ten Commandments majority, and possibly also for Justice O'Connor and perhaps Souter, Ginsburg, and Breyer. The question is whether the same would apply to a cross that had been there for 70 years (is that right?), and which way the liturgical inconsistency you describe with traditional Anglicanism, but the broader consistency between chapels and a cross, cuts. That's hard to tell without focusing a lot more on the historical details. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ira (Chip) Lupu Sent: Tuesday, February 19, 2008 9:29 AM To: Law Religion issues for Law Academics Subject: RE: Scalia and Motive So what do you expect Scalia would say about the default placement of that cross on the altar table in the chapel at Willima Mary? Original message Date: Tue, 19 Feb 2008 09:21:31 -0800 From: Volokh, Eugene [EMAIL PROTECTED] Subject: RE: Scalia and Motive To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip Lupu writes: I think we have to go back to Prof. Finkelman's realist question: Justice Scalia has (both before and after Smith) voted to uphold Free Exercise claims (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against the government in an Establishment Clause case (including Edwards v. Aguillard, and Santa Fe Ind. School District v. Doe, which are probably the two toughest Est CL cases in which to side with the government during his tenure on the Court.) So will Justice Scalia ever see an Establishment Clause claim that he likes? Or does he just find reasons to vote against them all? I take it that Justice Scalia simply has a substantively very narrow view of the Establishment Clause, such as (for instance) Justices Stevens, Souter, Ginsburg, and Breyer have a substantively very narrow view of the judicially enforceable article I section 8 constraints on fedearl power. I don't see why we should cast this as [the Justices] find reasons to vote against [all or nearly all the claims] -- they *have* reasons, flowing from their understanding of the substantive scope of the constitutional right. Likewise, Justice Stevens has generally taken a very broad view of the Establishment Clause; he has occasionally voted to reject an Establishment Clause claim that has reached the Court, but quite rarely (and the only cases that come to mind, at least recently, have been unanimous or nearly-unanimous decisions, such as Witters, Widmar, and Lamb's Chapel). That doesn't mean that he just finds reasons to vote [for] them all -- only that his understanding
RE: Scalia and Motive
Bob Tuttle has asked me to forward this response to Eugene's post: Eugene, The point is not about the age of the chapel or cross, but rather what message the government is sending through maintenance of the particular religious display. If the message is Jesus Christ should be venerated, then there's a problem (even to Scalia, at least if the limit he accepted in McCreary County applies). But if the message is religion was an important part of the history of this place, then the display seems to be an appropriate acknowledgment - in a detached sense - of religion's signficance, rather than a government call to worship. So we argue that the Wren Chapel at WM could survive scrutiny as an acknowledgment, because it's restored to look like the mid-18th century, which Williamsburg and WM both celebrate (or fetishize). But placement of an early 20th century cross in that space loses the message of acknowledgment conveyed by the rest of the chapel; it has no connection to the history otherwise reflected in the space, but represents only a claim ! th! at this is a Christian worship space. In other words, no one's trying to celebrate the status of the college in 1907 (the vintage of the cross - coincidentially when WM became a state school), or 1940, when the cross was donated to WM. That's why I think the college could have had the Lord's Prayer or Ten Commandments displayed behind the altar (a common practice during the relevant era), because such a display would place the religious message in historical context, but the cross lacks that context. Acknowledgment needs to mean something other than just antiquity. Bob Original message Date: Tue, 19 Feb 2008 09:34:26 -0800 From: Volokh, Eugene [EMAIL PROTECTED] Subject: RE: Scalia and Motive To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Not having read your article, I can't say much on the subject. For everyone on the Court (except Justice Thomas) context -- especially the historical meaning -- seems to matter, so one would need to know more of the details. The presence of a 200+-year-old chapel on campus would pretty clear be constitutional even for the Ten Commandments majority, and possibly also for Justice O'Connor and perhaps Souter, Ginsburg, and Breyer. The question is whether the same would apply to a cross that had been there for 70 years (is that right?), and which way the liturgical inconsistency you describe with traditional Anglicanism, but the broader consistency between chapels and a cross, cuts. That's hard to tell without focusing a lot more on the historical details. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ira (Chip) Lupu Sent: Tuesday, February 19, 2008 9:29 AM To: Law Religion issues for Law Academics Subject: RE: Scalia and Motive So what do you expect Scalia would say about the default placement of that cross on the altar table in the chapel at Willima Mary? Original message Date: Tue, 19 Feb 2008 09:21:31 -0800 From: Volokh, Eugene [EMAIL PROTECTED] Subject: RE: Scalia and Motive To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Chip Lupu writes: I think we have to go back to Prof. Finkelman's realist question: Justice Scalia has (both before and after Smith) voted to uphold Free Exercise claims (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against the government in an Establishment Clause case (including Edwards v. Aguillard, and Santa Fe Ind. School District v. Doe, which are probably the two toughest Est CL cases in which to side with the government during his tenure on the Court.) So will Justice Scalia ever see an Establishment Clause claim that he likes? Or does he just find reasons to vote against them all? I take it that Justice Scalia simply has a substantively very narrow view of the Establishment Clause, such as (for instance) Justices Stevens, Souter, Ginsburg, and Breyer have a substantively very narrow view of the judicially enforceable article I section 8 constraints on fedearl power. I don't see why we should cast this as [the Justices] find reasons to vote against [all or nearly all the claims] -- they *have* reasons, flowing from their understanding of the substantive scope of the constitutional right. Likewise, Justice Stevens has generally taken a very broad view of the Establishment Clause; he has occasionally voted to reject an Establishment Clause claim that has reached the Court, but quite rarely (and the only cases that come to mind, at least recently, have been unanimous or nearly-unanimous decisions, such as Witters, Widmar, and Lamb's Chapel). That doesn't mean that he just finds reasons to vote [for] them all -- only that his understanding of the breadth of the Establishment Clause
Re: InnerChange Litigation
PFM was not a state actor just because it accepted the state's money to run this program; many private grantees take government money, and don't thereby become state actors. Ordinarily, private grantees are not even defendants in these sorts of cases; only state officials are sued. But here PFM was effectively running a wing of the prison (general administrative responsibilities, including discipline). The state cannot escape constitutional restrictions (8th A, 14th A, here the Establishment Clause) by delegating power to run prisons to private parties. That delegation is what makes PFM a state actor, liable in the same ways as the state (and probably without any of the immunities). And that's why (contrary to its press release) PFM can't keep running this particular program, even if no money changes hands between the state and PFM. Original message Date: Tue, 04 Dec 2007 12:05:05 -0600 From: Christopher Lund [EMAIL PROTECTED] Subject: Re: InnerChange Litigation To: religionlaw@lists.ucla.edu There's one thing that I feel like I'm missing, although (forgive me, moderator) it may be more of a con law or remedies question than a First Amendment question. I understand that PFM is a state actor, because its actions are attributable to the state and the state is therefore responsible for PFM's conduct. But I don't really understand how PFM could itself be liable here or how they could be forced to pay money damages or enjoined. I mean, PFM can't itself violate the Establishment Clause. And when we say that PFM's acts are really attributable to the state, that just means that they are also really Iowa's actions. So Iowa could be liable for them, could be forced to pay for them, or could be enjoined from allowing them to continue in the future. But saying Iowa is responsible for PFM's actions is completely different from saying that PFM is responsible for Iowa's actions (which is what I think what the Court is doing when it makes PFM liable). And I wonder if the Eighth Circuit feels this way at least implicitly. By denying the reimbursement remedy, the Eighth Circuit punishes Iowa, but lets InnerChange off the hook with just a stern warning. Finally, if PFM here can be liable here (which would be not only for damages but also things like attorneys' fees), then doesn't that have far-reaching consequences? The student speaker in Santa Fe v. Doe, the rabbi in Lee v. Weisman - are they all really individually liable for money damages and attorneys' fees? I just feel like there's something about the Court's state-action jurisprudence that I'm not getting. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) [EMAIL PROTECTED] 12/4/2007 10:51 AM Pretty devastating for the future of faith-intensive prison programs of this kind. But not unexpected, of course -- there really wasn't much of an argument on the other side. (For my previous thoughts on the case, see here (http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html) and here (http://balkin.blogspot.com/2006/06/trial-court-enjoins-unconstitutional.html). The reversal on the reimbursement remedy is based on the notion that although everyone knew damn well this was illegal, they were well-motivated. I'm dubious about such logic, but I'm not surprised the court reversed on the remedy -- the precedent set by the decision itself is a sufficient deterrent to all such programs going forward. The most important aspect of the case is the holding that the PFM was itself a state actor, given the prison setting and the control they had over the prisoners. I've argued that this follows fairly easily from West v. Atkins, but many were dubious. Thus, even if there were no state funding, as such, such a program could not continue within the prison. It might be a different story if a prison simply allowed many outside groups to come into the prison occasionally to lead rehab programs. But that's a far cry from these sorts of programs. -- Original message -- From: Christopher Lund [EMAIL PROTECTED] Attached is a copy of the opinion in Americans United v. Prison Fellowship Ministries, which was issued yesterday. The Eighth Circuit affirmed the district court's finding of unconstitutionality, but modified the injunction so that PFM now doesn't have to pay back the $1.5 million it received from the state under its contract before the finding of unconstitutionality. Thoughts? http://www.ca8.uscourts.gov/opndir/07/12/062741P.pdf Christopher C. Lund
Re: InnerChange Litigation
Following up on Steve Green's answer, I would say that PFM was an agent of the
state of Iowa in the administration of the faith-based program. If prison
guards can be sued for their actions (e.g., beating a prisoner)as state agents,
why not PFM likewise?
Most Establishment Clause cases do not involve money damages. But here the
plaintiffs sought recoupment. An unusual remedy, to be sure, but on a theory
that taxpayers have been wronged by the expenditure, forced recoupment puts the
money back into the state treasury, even if the state hasn't asked for it. And
naming PFM as a defendant is necessary if recoupment is among the remedies
being sought. If all the plaintiff seeks is an injunction, suing only the
official defendants makes sense (in the student prayer case, the offending
students will be gone by the time the case is decided). Perhaps one could
recover attorneys' fees against students who pray as agents of the school,
but no plaintiffs' group is going to make that move -- it would seem cruel to
recover the fees from students, who perhaps cannot be expected to know better,
especially if they are being encouraged by school personnel (who can be
expected to know better).
Original message
Date: Tue, 04 Dec 2007 14:44:26 -0600
From: Christopher Lund [EMAIL PROTECTED]
Subject: Re: InnerChange Litigation
To: religionlaw@lists.ucla.edu
Maybe I can explain what I'm missing a bit better.
You say, The state cannot escape constitutional
restrictions (8th A, 14th A, here the Establishment
Clause) by delegating power to run prisons to
private parties. That delegation is what makes PFM
a state actor, liable in the same ways as the state
(and probably without any of the immunities).
I have no question about the first part of this (up
until the part I've boldfaced). Iowa cannot escape
its constitutional obligations by getting PFM to run
its prisons. The state is accountable for what PFM
does - that's what we mean when say PFM is a state
actor, when we say that PFM's actions are
attributable to the state. And because Iowa is
responsible for what PFM does, PFM's religious
programming is the state's religious programming,
and the state having this sort of religious
programming violates the Establishment Clause under
Mitchell v. Helms and the rest.
But while this explains why Iowa should be liable
(for both its own actions and for PFM's), it does
not explain or justify why PFM itself should be
liable. I get that PFM's actions are attributable
to the state. That's what PFM being a state
actor means. But why is the state's constitutional
duty attributable to PFM?
I am definitely open to the possibility that I'm
missing something big.
Best,
Chris
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS 39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
[EMAIL PROTECTED] 12/4/2007 12:31 PM
PFM was not a state actor just because it accepted
the state's money to run this program; many private
grantees take government money, and don't thereby
become state actors. Ordinarily, private grantees
are not even defendants in these sorts of cases;
only state officials are sued. But here PFM was
effectively running a wing of the prison (general
administrative responsibilities, including
discipline). The state cannot escape constitutional
restrictions (8th A, 14th A, here the Establishment
Clause) by delegating power to run prisons to
private parties.
That delegation is what makes PFM a state actor,
liable in the same ways as the state (and probably
without any of the immunities). And that's why
(contrary to its press release) PFM can't keep
running this particular program, even if no money
changes hands between the state and PFM.
Original message
Date: Tue, 04 Dec 2007 12:05:05 -0600
From: Christopher Lund [EMAIL PROTECTED]
Subject: Re: InnerChange Litigation
To: religionlaw@lists.ucla.edu
There's one thing that I feel like I'm missing,
although (forgive me, moderator) it may be more
of a
con law or remedies question than a First
Amendment
question. I understand that PFM is a state
actor,
because its actions are attributable to the
state
and the state is therefore responsible for PFM's
conduct. But I don't really understand how PFM
could itself be liable here or how they could be
forced to pay money damages or enjoined.
I mean, PFM can't itself violate the
Establishment
Clause. And when we say that PFM's acts are
really
attributable to the state, that just means
that
they are also really Iowa's actions. So Iowa
could
be liable for them, could be forced to pay for
them,
or
Re: 7th Circuit Taxpayer Standing Decision
Dan Conkle's post, about the 7th Circuit's application of Hein v. FFRF to Hinrichs v. Indiana House Speaker, legitimates my shamless plug for a piece about Hein that Bob Tuttle and I have now posted on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1022398 Several things are striking about Hinrichs: 1. Neither majority nor dissent really wrestles with questions of how Flast v. Cohen (with all its emphasis on Art. I, taxing and spending) should apply to state taxpayers; 2. As the dissent in Hinrichs points out, Hein emphasized executive branch discretion -- but Hinrichs is entirely about legislative branch behavior (Indiana House Rules, practices, and budget); and 3. The expenditures alleged in Hinrichs are flimsy (thank you notes, and photos for invited clergy, none of which are necessary for the practice of prayer). But it is quite apparent that an observer of legislative prayer would have standing to challenge it, and, indeed, Hinrichs had alleged observer standing (he was a lobbyist) but had dropped that basis for standing along the way. So we can now expect a new lawsuit, with an observer-plaintiff -- seems like quite a waste re: the efforts in this litigation, though Bob and I speculate in our paper that Hein may be the first step toward getting rid of observer standing in Establishment Clause cases as well. In any event, the 7th Circuit has side-stepped a difficult case (because of the highly sectarian quality of many of the prayers) about the merits of prayer practices in the Indiana House. Original message Date: Tue, 30 Oct 2007 15:09:57 -0400 From: Conkle, Daniel O. [EMAIL PROTECTED] Subject: 7th Circuit Taxpayer Standing Decision To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu The 7th Circuit, 2-1 (majority opinion by Judge Ripple, joined by Judge Kanne), has extended Hein v. Freedom from Religion Foundation to a case involving a claim of *state* taxpayer standing. The case involves a taxpayer challenge to sectarian legislative prayer in the Indiana House of Representatives. The plaintiffs earlier had won a district-court injunction against this practice, and the 7th Circuit had tentatively agreed in denying a stay, but the 7th Circuit now concludes that Hein, combined with DaimlerChrysler Corp. v. Cuno, calls for dismissal for lack of standing. Judge Wood dissents, arguing that the majority misreads Hein. Judge Wood also suggests that proper plaintiffs would not be difficult to find, based on more direct encounters with the prayers, etc., but she argues that the existing taxpayer plaintiffs should themselves have been permitted to proceed. Hinrichs v. Speaker of the House of Representatives, http://www.ca7.uscourts.gov/tmp/7S0THZZJ.pdf Daniel O. Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University School of Law 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Religious Freedom Moot Court Competition
George Washington University Law School will be hosting the 2nd Annual National Religious Freedom Moot Court Competition. Last year's competition was a great success, due primarily to very hard work by GW law students and a very impressive cadre of judges (well-versed in the law of religious freedom). Bob Tuttle and I are continuing to serve as advisors in the preparation of this year's problem. The competition will be limited to 24 teams. The registration deadline is October 12, 2007. The oral arguments will be held Feb. 22-23, 2008, here in Washington, DC. More information is available at http://www.religiousfreedommootcourt.org/, or by e-mail at [EMAIL PROTECTED] Please pass this on to those at your school who may be interested. Many thanks. Chip Lupu Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University School of Law 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Church-State Fellowship position at the Pew Forum
Set forth below is an announcement of a job search for a position as Research Fellow in Religion and Law at the Pew Forum on Religion Public Life (www.pewforum.org) in Washington, D.C. I pass this along to list members for several reasons: 1. The Forum is a highly-respected organization that does excellent work as a non-partisan distributor and producer of information about a wide variety of issues pertaining to religion and public life (doemestic and foreign, legal and political); and 2. My colleague Bob Tuttle and I have an ongoing relationship with the Forum. We will thus be working with the Fellow in many aspects of his or her job, and we have a vested interest in attracting a talented person to the position. The position would be ideal for a relatively recent law school graduate with some background in church-state law, and an interest in remaining in that field (perhaps in the academy, in other aspects of the non-profit world, in journalism, or in future law practice). Contact information is at the bottom of the notice. Thanks for passing this on to anyone who might be interested. Church-State Position The Pew Forum on Religion and Public Life is seeking a Research Fellow in Religion and Law with expert knowledge in church-state issues and excellent communications skills. The fellow will focus on such First Amendment topics as disputes over religious displays in public buildings, religion in public schools and the workplace, and the provision of public funding to religious institutions. The fellow must have significant understanding of these issue areas, acquired either through academic study or professional experience. The fellow’s primary duties include tracking a wide array of church-state issues, conducting research and writing legal backgrounders and analyses on important cases and issues, fielding press calls, and making public presentations on church-state topics to journalists, government officials and other opinion leaders. The fellow must have excellent research skills and be able to quickly master new material. He or she must be able to take complex issues and render them in clear, readable prose that helps non-experts understand the issues at hand. The fellow also must be a good speaker, who can easily convey conceptually difficult topics in a simple and clear style to both small and large groups. In keeping with the Forum’s mission of serving as a source of impartial information, the fellow must be committed to the non-partisan, non-advocacy approach that characterizes all Pew Research Center projects. The fellow will work closely with the existing senior fellow in religion and law, who focuses more on “culture war” issues such as abortion and gay marriage. He or she also will work closely with our partners at the George Washington University Law School, who conduct research and writing for the Forum on various church-state topics. CONTACT: David Masci, Senior Research Fellow, Pew Forum on Religion and Public Life, [EMAIL PROTECTED], 202-419-4566 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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. Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University School of Law 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be 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.
Re: Supreme Court Decides Hein
Marty says that Kennedy's opinion is the controlling one in Hein. But Kennedy says that he joins the Alito opinion in full, so it appears that he's not trying to narrow it in any way -- he's trying to explain it further in the context of this case. Do others think that the Alito plurality opinion is controlling in this case? Or do you think Marty is correct that Kennedy's opinion is in some way narrower than the plurality, and therefore becomes the controlling opinion? Chip Original message Date: Mon, 25 Jun 2007 15:45:30 + From: [EMAIL PROTECTED] Subject: Re: Supreme Court Decides Hein To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu,religionlaw@lists.ucla.edu Cc: Friedman, Howard M. [EMAIL PROTECTED] I jotted down these points, among others on Hein and Morse (in which Justice Alito's controlling concurrence is obviously written with an eye to protecting student religious and political expression), over at SCOTUSblog (http://www.scotusblog.com/movabletype/archives/2007/06/quick_prelimina.html): 4. The majority opinion in Hein states at one point that the expenditures at issue here were not made pursuant to any Act of Congress. That is of course, not true -- indeed, if it were true, the expendistures would be unconstitutional for that reason (a violation of the Appropriations Clause). What Justice Alito obviously means is that, in his terminology, there was no specific, direct or, especially express provision of a statute directing the religious use of the appropriations -- the expenditure was instead pursuant to a broad grant of discretion to the Executive to spend as he sees fit. I agree with Justice Scalia and the dissent (i.e., with six of the Justices) that it's hard to see why that should make any constitutional difference for purposes of Article III -- but be that as it may, that's now the test. 5. Importantly, the case is limited to taxpayer standing. As the plurality stresses (respondents make no effort to show that [other executive-initiated] abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing), in many cases involving executive expenditures for religious purposes, there may be plaintiffs with other grounds for standing, as in the countless cases challenging state government displays of creches, Ten Commandments, etc., and all of the school prayer cases. 6. Moreover, as Justice Kennedy (the controlling vote) emphasizes, just because something is nonjusticianble does not mean that the President can do it -- at least, not in an Administration that takes seriously the President's obligation to faithfully execute the law: It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations. 7. Kennedy's controlling concurrence emphasizes that the case, in his view, involved a challenge to executive branch speechmaking -- something he is loathe to allow the courts to superintend: The public events and public speeches respondents seek to call in question are part of the open discussion essential to democratic self-government. The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society. Permitting any and all taxpayers to challenge the content of these prototypical executive operations and dialogues would lead to judicial intervention so far exceeding traditional boundaries on the Judiciary that there would arise a real danger of judicial oversight of executive duties. The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information. And were this constant supervision to take place th! e court s would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold. -- Original message -- From: Friedman, Howard M. [EMAIL PROTECTED] The Supreme Court this morning decided the Hein case, holding 5-4 that taxpayers lack standing to challenge
