Ban on Feeding Homeless

[James Edward Maule]

For those not picking up on Philadelphia area stories, this might be of 
interest, perhaps especially to those researching and writing in the area.

For some time, religious and other organizations have been feeding homeless 
people at outdoor sites in Philadelphia. Citing public health and other 
concerns, the city banned the practice. The religious organizations have 
challenged the ban, claiming that it violates their (and their members') First 
Amendment free exercise rights ("What they will not compromise on, however, is 
what they described as a God-directed mission to minister to the needs of 
homeless people where they live - on the parkway.")

Yesterday testimony concluded, and oral argument will now take place. 
Enforcement of the ban has been stayed pending the litigation.

http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html


Jim Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule


___
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: Ban on Feeding Homeless

[James Edward Maule]

The city (in particular, the mayor) argue that operating the feeding stations 
on the parkway "could rob homeless people of dignity, spread food-borne 
disease, and degrade the park with trash and human waste." The religious 
organizations claim that this is a red herring because they have been certified 
after taking the city's food-sanitation course, and clean the area. They claim 
that the city is trying to take over the feeding by funneling the homeless into 
inside operations run by the city, but point out that the city lacks the 
necessary facilities to handle all of the homeless. The city responded with a 
proposal for a temporary transition, letting the organizations do outside 
feedings in the city hall plaza. The religious organizations reply that the 
feedings need to take place where the homeless live, and that this is a matter 
of religious principle for them.

Others - including commentators not connected with the organizations - claim 
that the entire issue is a desire by the city to move the homeless people who 
live on the parkway to other locations. The parkway, for those not familiar 
with the city, is one of two grand avenues of culture, with the Art Museum at 
the head, the Franklin Institute, the newly relocated Barnes Art Museum, 
several other museums, the Roman Catholic cathedral, etc, gracing the parkway 
(the other avenue is the Avenue of the Arts - Broad Street - with concert halls 
and some other institutions). In his testimony, the mayor denied that the 
relocation of the Barnes was a factor, claiming that his goal to end 
homelessness has existed for decades, and that feeding the homeless doesn't end 
homelessness but perhaps even enables it. During his testimony, to quote the 
article, "Nutter testified somberly and described his opposition to feeding 
homeless people in public in religious terms, as 'a calling.' " That seems to 
infuse the case with the additional question of whether the  mayor is injecting 
HIS theological beliefs (about how to deal with homelessness) into the dispute. 
That opens up interesting questions about dealing with the private theological 
beliefs of a public official that color or even morph into the official's 
political positions. Are they protected? Are they relevant to the issue?

It's unclear how the city's health and safety concerns are alleviated by moving 
the feeding areas from the parkway to city hall plaza. The only difference is 
that it relieves the parkway of trash and waste, but city officials testified 
that their goal was not to remove the homeless from the parkway.

According to another article, a pastor of one of the organizations explained in 
her testimony that the congregation holds worship services at the location 
where they subsequently feed the homeless. The ordinance bans feeding, not 
worship. But what if the feeding is considered by the religious organization to 
be part of worship? (I don't know if it so thinks or believes, and it doesn't 
appear as though that question was asked or answered.)

In some respects, the case seems to involve a variety of contested factual 
questions. What is the city's goal and purpose? Is it really trying to regulate 
public health or is it trying to accomplish something else? Is there less risk 
of food contamination if the feedings occur at city hall plaza rather than the 
parkway? How does moving the feeding locations improve the dignity of the 
homeless? That would suggest the case is one that turns on the facts.

Yet the U.S. District Judge hearing the case said, when setting oral argument 
for tomorrow, "This may be a little more complex than it seemed before." But 
that doesn't necessarily mean it's more challenging than a final exam question 
in a First Amendment course.

Jim Maule

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul 

Sent: Wednesday, July 11, 2012 10:40 AM
To: Law & Religion issues for Law Academics
Subject: RE: Ban on Feeding Homeless

Is this a standard, time, place, manner restriction with pretty standard 
"police powers" to regulate public health?
Would the church members be allowed to hold a public march on the same parkway, 
or leaflet cars on the parkway?

This story almost sounds like some final exam question in a First Amendment 
course.


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

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

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule
Sent: Wednesday, July 11, 2012 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Ban on Feeding Homeless

For those not picking up on Philadelphia area stories, this might be of 
in

RE: Ban on Feeding Homeless

[James Edward Maule]

Doug, I don't know. I tried to find the actual complaint but it's not yet 
available, as best as I can tell. The second-hand reports - in print as well as 
on radio and television - refer to "First Amendment" and I've not heard any 
reference to the Pennsylvania RFRA (but that doesn't mean it's not in the 
complaint, as it might slip by reporters or be trimmed out of a report by an 
editor).

Jim

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, July 11, 2012 12:00 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Ban on Feeding Homeless

Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA 
claim?

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule
Sent: Wednesday, July 11, 2012 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Ban on Feeding Homeless

For those not picking up on Philadelphia area stories, this might be of 
interest, perhaps especially to those researching and writing in the area.

For some time, religious and other organizations have been feeding homeless 
people at outdoor sites in Philadelphia. Citing public health and other 
concerns, the city banned the practice. The religious organizations have 
challenged the ban, claiming that it violates their (and their members') First 
Amendment free exercise rights ("What they will not compromise on, however, is 
what they described as a God-directed mission to minister to the needs of 
homeless people where they live - on the parkway.")

Yesterday testimony concluded, and oral argument will now take place. 
Enforcement of the ban has been stayed pending the litigation.

http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html


Jim Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu<mailto:ma...@law.villanova.edu>
http://vls.law.villanova.edu/prof/maule


___
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: Ban on Feeding Homeless

[James Edward Maule]

Thanks, Allen. For some reason none of my search “techniques” pulled that up.
Jim Maule

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Allen Asch
Sent: Wednesday, July 11, 2012 12:17 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Ban on Feeding Homeless

There is also a Pennsylvania RFRA claim. The ACLU's complaint is at 
http://www.aclupa.org/downloads/Chosen300Complaint.pdf<http://www.aclupa.org/downloahttp:/www.aclupa.org/downloads/Chosen300Complaint.pdfds/Chosen300Complaint.pdf>

I hope that helps,

Allen Asch

-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Jul 11, 2012 9:01 am
Subject: RE: Ban on Feeding Homeless
Jim, is this only a First Amendment claim? Or is there also a Pennsylvania RFRA 
claim?

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu?>]
 On Behalf Of James Edward Maule
Sent: Wednesday, July 11, 2012 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Ban on Feeding Homeless

For those not picking up on Philadelphia area stories, this might be of 
interest, perhaps especially to those researching and writing in the area.

For some time, religious and other organizations have been feeding homeless 
people at outdoor sites in Philadelphia. Citing public health and other 
concerns, the city banned the practice. The religious organizations have 
challenged the ban, claiming that it violates their (and their members’) First 
Amendment free exercise rights (“What they will not compromise on, however, is 
what they described as a God-directed mission to minister to the needs of 
homeless people where they live - on the parkway.”)

Yesterday testimony concluded, and oral argument will now take place. 
Enforcement of the ban has been stayed pending the litigation.

http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html


Jim Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu<mailto:ma...@law.villanova.edu>
http://vls.law.villanova.edu/prof/maule



___

To post, send message to 
Religionlaw@lists.ucla.edu<mailto: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.

Further Developments in Church-Priest Property Dispute

[James Edward Maule]

I think this case has been discussed from time to time on this list.

http://www.philly.com/philly/news/local/20110901_Defrocked_Episcopal_priest_loses_bid_to_retain_Montco_parish.html?nlid=3873958
Defrocked Episcopal priest loses bid to retain Montco parish
By David O'Reilly
Inquirer Staff Writer
A Episcopal priest defrocked by the local diocese must step down as rector of 
his Rosemont parish and vacate the premises after 21 years there, a Montgomery 
County Court judge has ruled.
* * *
With the support of his vestry, or church board, Moyer refused to step down as 
rector after his deposition and continued to preach, say Mass, administer the 
affairs of the parish, and reside in its rectory with his wife, Rita.
* * *
In February 2009, the diocese filed a motion in Montgomery County Court asking 
it to remove Moyer and the members of the vestry who refused to recognize the 
authority of the Episcopal Church as rightful owner of the property.
Ott, a judge of Orphans' Court, ruled Aug. 25 that under the laws of the 
church, parishes are the property of their dioceses and the national church.
* * *
___
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.

Go to Church or Go to Jail?

[James Edward Maule]

That's what it appears to be (sorry for cross-posting but this should be useful 
to subscribers on both lists looking for an exam question, to say nothing of 
the expected discussion).

http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2

Headline and first paragraph:

Jesus or jail? Alabama town offers options for serving 
time<http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/>

If you're charged with a nonviolent crime in one Alabama town, you might just 
have the chance to pray it all away.
Starting this week, under a new program called Operation ROC (Restore Our 
Community), local judges in Bay Minette, Alabama, will give those found guilty 
of misdemeanors the choice of serving out their time in jail, paying a fine or 
attending church each Sunday for a year.


James Edward Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule


___
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.

Driveway Fee as Tax on Churches

[James Edward Maule]

One of my readers sent this link to me. The article describes the use of a 
driveway fee (measured by estimated number of vehicle transits) to get around 
state property tax exemptions for churches. Apparently the instance described 
is not the first time this has been tried. This is new to me. It's from almost 
a year ago, but I don't recall seeing any discussion about it on this list but 
perhaps I missed it. Comments welcome.

http://www.charismamag.com/index.php/news-old/29819-kansas-town-tries-to-tax-church

Kansas Town Tries to Tax Church Attendance 

Wednesday, 22 December 2010 07:03 AM EST Jennifer LeClaire News 
 - Featured 
News 

The Kansas City of Mission is working to make sure churches in its area 
understand that there are two things certain in life: death and taxes-even in 
the sanctuary.

Mission implemented a property tax in the name of a "driveway fee" in efforts 
to evade having to grant tax exemptions to two local churches, according to the 
Alliance Defense Fund (ADF). ADF filed a suit on behalf of the churches, First 
Baptist Church of Mission and The Archdiocese of Kansas City in Kansas.
[rest of article omitted]

___
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: Driveway Fee as Tax on Churches

[James Edward Maule]

Thanks for the update.

Jim Maule

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Erik Stanley
Sent: Thursday, November 03, 2011 12:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: Driveway Fee as Tax on Churches

I litigated this case on behalf of two churches in Mission, Kansas (one Baptist 
and one Catholic).  The City recently settled the case by providing an 
exemption in the ordinance for all organizations who hold a property tax 
exemption under state law.  Here is a link to ADF's press release on the 
settlement which also contains a link to the Complaint: 
http://www.adfmedia.org/News/PRDetail/5112.  Kansas has great precedent on the 
difference between a "tax" and a "fee." This was plainly in the nature of a tax 
and the City should have provided an exemption in the first place.

Erik

  [cid:image001.jpg@01CC9A36.B5D41B70]
  Erik Stanley
  Senior Legal Counsel
  (913) 685-8000
  (913) 685-8001 (fax)
  estan...@telladf.org<mailto:estan...@telladf.org>
  www.telladf.org<http://www.telladf.org/>


"Truth is immortal" Dr. Balthasar Hubmaier, 1527



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule
Sent: Wednesday, November 02, 2011 8:24 PM
To: Law & Religion issues for Law Academics
Subject: Driveway Fee as Tax on Churches

One of my readers sent this link to me. The article describes the use of a 
driveway fee (measured by estimated number of vehicle transits) to get around 
state property tax exemptions for churches. Apparently the instance described 
is not the first time this has been tried. This is new to me. It's from almost 
a year ago, but I don't recall seeing any discussion about it on this list but 
perhaps I missed it. Comments welcome.

http://www.charismamag.com/index.php/news-old/29819-kansas-town-tries-to-tax-church

Kansas Town Tries to Tax Church Attendance 
<http://www.charismamag.com/index.php/news-old/29819-kansas-town-tries-to-tax-church-attendance>
Wednesday, 22 December 2010 07:03 AM EST Jennifer LeClaire News 
<http://www.charismamag.com/index.php/component/content/section/34> - Featured 
News <http://www.charismamag.com/index.php/news-old>

The Kansas City of Mission is working to make sure churches in its area 
understand that there are two things certain in life: death and taxes-even in 
the sanctuary.

Mission implemented a property tax in the name of a "driveway fee" in efforts 
to evade having to grant tax exemptions to two local churches, according to the 
Alliance Defense Fund (ADF). ADF filed a suit on behalf of the churches, First 
Baptist Church of Mission and The Archdiocese of Kansas City in Kansas.
[rest of article omitted]



This e-mail message from the Alliance Defense Fund and any accompanying 
documents or embedded messages is intended for the named recipients only. 
Because ADF is a legal entity engaged in the practice of law, this 
communication contains information, which may include metadata, that is 
confidential, privileged, attorney work product, or otherwise protected from 
disclosure under applicable law. If you have received this message in error, 
are not a named recipient, or are not the employee or agent responsible for 
delivering this message to a named recipient, be advised that any review, 
disclosure, use, dissemination, distribution, or reproduction of this message 
or its contents is strictly prohibited. If you have received this message in 
error, please immediately notify the sender and permanently delete the message. 
PRIVILEGED AND CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK 
PRODUCT. IRS CIRCULAR 230 DISCLOSURE: Any tax advice contained in this 
communication was not written and is not intended to be used for the purpose of 
(i) avoiding penalties imposed by the Internal Revenue Code or (ii) promoting, 
marketing, or recommending any transaction or matter addressed herein.
<>___
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 sides with church on decision to fire employee on religious grounds

[James Edward Maule]

Perhaps a comparison to the interpretation of "minister of the gospel" in 
Internal Revenue Code section 107, which provides a gross income exclusion for 
the rental value of housing provided to ministers of the gospel (the "parsonage 
exclusion") is helpful. Perhaps it raises more questions. Perhaps it is or is 
not (or will turn out to be or not to be) coterminous with the definition for 
other purposes. It is relevant to Alan's question in the sense that a gross 
income exclusion (like a tax deduction or credit) is equivalent in many ways to 
funding.

>From my BNA Tax Management, Inc., Gross Income: Overview and Conceptual 
>Aspects, two paragraphs (without footnotes) addressing the scope of the 
>exclusion in terms of who qualifies:

"Although the language of §107 refers to ministers of the gospel, the exclusion 
applies to persons who are ordained, commissioned, or licensed to perform 
substantially all the religious functions within the practice of the 
denomination. Thus, the exclusion is available for rabbis and cantors of the 
Jewish faith, ordained deacons, ordained gospel ministers who administer 
sacraments, preach, and conduct worship services, and unordained but 
commissioned or licensed members of a religious denomination who perform 
substantially all of the religious functions within the practice of the 
denomination. But the exclusion is not available to unordained, uncommissioned 
and unlicensed persons who perform nonreligious services for a church.

The §107 exclusion also applies to retired ministers of the gospel. 
Payments to surviving spouses, however, are not covered by the exclusion. Also 
not covered are payments to employees of religious organizations who are not 
ordained, commissioned, or licensed ministers and who do not perform any 
religious functions. No exclusion is available to a taxpayer whose duties as a 
religious functionary did not require performance by a person with ministerial 
authority and that were more organizational than religious in nature."

Jim Maule


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, January 12, 2012 1:01 AM
To: Law & Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on 
religious grounds

Tom,

I have long since given up trying to predict how Supreme Court justices will 
decide future cases (or to assume that there will be logical consistency or 
even intellectual integrity in all opinions.) But Justice Roberts clearly and 
repeatedly emphasizes the title, status, and acknowledged role of minister or 
clergy as significant factors in reaching his decision in this case. Why are 
you so confident that all of this language in the opinion is superflous? I 
agree that Alito and Kagan's concurrence provides more support for including 
some lay teachers in the exception. But even they say "What matters is that 
respondent played an important role as an instrument of her church's religious 
message and as a leader of its worship activities."  The words "important role" 
and "a leader" arguably mean something different than "some role" and "a 
participant."

Finally, of course, there is the question of how the understanding of who 
qualifies for the ministerial exception relates to the question of what 
positions the government can fund in religious institutions. Can the government 
fund the salary of teachers who play an important role as an instrument of 
their church's religious message and as a leader in its worship activities? If 
the answer to that question is "Yes" and it is also true that such teachers are 
enough like clergy in their religious functions to be included in the 
ministerial exception, would it follow that government can also fund the salary 
of clergy? Is it constitutionally permissible for the government to refuse to 
fund teaching positions at a religious school which refuses to hire 
African-Americans, women, and the disabled as teachers?

Alan




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Wednesday, January 11, 2012 7:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Supreme Court sides with church on decision to fire employee on
religious grounds

Alan,

I agree that the majority leaves open the issue of lay teachers.  But since 
three justices take a broader approach to defining a minister, all you need for 
a majority in a later case is two more votes, and Roberts and Scalia seem 
reasonable prospects to me in a case that presents the issue.  Thomas would 
defer heavily to the religious organization's characterization of an employee 
as a minister.  And Alito and Kagan say that ordained or "commissioned" status 
isn't crucial, that the criterion is "positions of substantial religious 
importance

RE: The contraception mandate under Empoyment Division v Smith

[James Edward Maule]

I have a question about laws of general applicability. More than a few posts 
ago, someone - I apologize for not remembering who - gave the speed limit law 
as an example of a law of general applicability. I recall the point was that 
even if a person or religious organization had a religious reason for violating 
the speed limit, the claim would fail.

Thus, I wonder about the argument being made by the Becket Fund. The speed 
limit set by the speed limit law (a) does not apply to everyone (e.g., 
emergency vehicles), (b) [can't think of an analogy], and (c) provides for a 
system of individualized exemptions in the form of permits issued to allow 
violation of the minimum speed requirement for transporting certain large 
objects (and I think there are some instances where permits can be obtained to 
exceed the stated maximum).

Thus, I wonder, are these the tests for finding a law not to be of general 
applicability?

Jim Maule

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Monday, February 13, 2012 1:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: The contraception mandate under Empoyment Division v Smith

Brad,

In the complaint filed by Belmont Abbey College challenging the contraception 
mandate, the Becket Fund argues that the contraception mandate is not a law of 
general applicability because among other things (a) it does not apply to all 
employers (for instance it does not apply to employers with fewer than 50 
employees); (b) it does not apply to certain "grandfathered" insurance plans; 
and (c) it provides for a system of individualized exemptions by allowing HHS 
the ability to grant waivers in response to individualized requests.  You can 
access the complaint here:

 
http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf)

Maybe the question to be asked is which "law" must be of general applicability? 
 In Smith, it strikes me that the peyote statute was a stand alone criminal 
law.  In this instance, I understood that the contraception mandate was just 
one component of the overall  federal healthcare reform act.  So it seems to me 
that in interpreting whether the law is one of general applicability, a court 
would be required to look at the entire healthcare reform act and determine 
what waivers and exemptions were included in it, rather than just narrowly 
focusing on the contraception mandate itself.

Thoughts?

Will


Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina


"We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light."
(Attributed to Plato, 428-345 B.C.)


--- On Sat, 2/11/12, Brad Pardee  wrote:

From: Brad Pardee 
Subject: The contraception mandate under Empoyment Division v Smith
To: religionlaw@lists.ucla.edu
Date: Saturday, February 11, 2012, 12:31 AM

I've been following the coverage of the mandate that religious organizations 
provide free contraception through their insurance plans, regardless of whether 
or not it forces them to violate the tenets of their faith.  Today's 
announcement of an accomodation notwithstanding, ,though, I'm wondering what 
the chances are that the courts would rule against the administration if the 
lawsuits that have been filed go to trial.



It's my understanding that, in Employment Division v Smith, the Court clearly 
said that a neutral law of general applicability isn't going to violate the 
Free Exercise Clause.  From what I've read, the regulation in question appears 
to be both neutral and of general applicability.  A strict adherence to Smith 
would seem to weigh against the religious freedom claims, which is the danger 
many have seen in Smith since the ruling first came out.



What is the sense here whether the Courts would adhere to Smith and uphold the 
mandate, or would the Courts see it as an opportunity to revisit Smith?  I 
don't remember that there was the same national controversy over Smith when it 
came out, but it seemed to me that, outside of legal and Native American 
circles, most folks didn't worry about it because they didn't see it as a 
ruling beyond peyote.  The contraceptive mandate has certainly gotten the 
attention of a much larger segment of society, though.  I wonder if the Court 
would see a case like this as an opportunity to restore what was lost in Smith.



Brad Pardee

-Inline Attachment Follows-
___
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

Religious Beliefs as Criminal Defense?

[James Edward Maule]

http://www.philly.com/philly/insights/20120307_Judge_did_harm_in_the_name_of_tolerance.html

Posted: Wed, Mar. 7, 2012, 3:00 AM
Judge did harm in the name of tolerance
* * * * *


Yet just last week, a state trial judge there dismissed harassment charges 
against Talaag Elbayomy, a 46-year-old Muslim immigrant so infuriated by a 
costume he saw at the Mechanicsburg Halloween parade that he felt the need to 
physically attack the man wearing it.

Ernest Perce, a member of the Parading Atheists of Central Pennsylvania, was 
dressed as "Zombie Muhammad" while a fellow nonbeliever walking alongside him 
was dressed as a "Zombie pope." Outraged by what he perceived to be an insult 
against the prophet of Islam, Elbayomy rushed Perce and then attempted to choke 
him.
* * * * *

[rather than trying to paraphrase the rest of the article, I'll suggest reading 
it for both additional facts and the commentary by the article's author]
[the case is in Cumberland Co., Pa.]

Jim Maule
Villanova University School of Law

___
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.

Announcement

[James Edward Maule]

I hope it is acceptable to share this announcement, as I think this lecture is 
of interest to many on this listserve:

Save the Date: VLS annual Donald A. Giannella Lecture: 3/21
The title of this year's Lecture is "Employment Division v. Smith in Hindsight: 
Ministers, Peyote and the Supreme Court." This year's lecturer is The Honorable 
Michael W. McConnell, Richard & Frances Mallery Professor and Director of the 
Constitutional Law Center, Stanford Law School. This lecture explores the logic 
of intermediate positions between Smith's formal neutral and the strict 
scrutiny of prior cases, and the implications of the recent decision in 
Hosanna-Tabor Lutheran Church and School v. EEOC (the "Ministerial Exception" 
Case) for the future reach of Smith and the meaning of Free Exercise of 
Religion. A complimentary reception will immediately follow.

For additional information: http://www.law.villanova.edu/events
If you have questions, please contact: 
nat...@law.villanova.edu

And I hope the links survived the copy and paste.

And I'll add, if you're able to attend, especially if you are nearby, it's also 
a chance to see our still-new building.

And please feel free to forward this to other listserves and individuals you 
think would be interested. Thanks.

Jim Maule
Villanova University School of Law
___
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.