RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

t;aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrutiny review. (And then, of course, there are 
establishment clause concerns.)


As to the policy issues raised by legislation to limit the Johnson Amendment, 
Rabbi Saperstein's arguments are persuasive, but probably understate the 
consequences of a formal change in this tax provision. Sermons are broadcast 
today. Religious groups engage in door to door proselytizing. Many houses of 
worship have large signs communicating religious messages to the community. 
Religious institutions communicate through social media to their congregants 
and to the general public. All of this is done in the ordinary course of their 
activities. All of these actions could be employed to support candidates during 
an election.


Further, there is a reason so many clergy oppose tampering with the Amendment. 
They do not want their houses of worship and institutions transformed and 
divided by partisan politics. And they know that once some congregations in 
their communities start to endorse candidates, it will be difficult for others 
to remain silent and cede the public election square exclusively to other 
faiths.


Shameless plug. 
https://www.usnews.com/opinion/debate-club/articles/2017-02-10/congress-should-think-hard-before-repealing-the-johnson-amendment<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.usnews.com%2Fopinion%2Fdebate-club%2Farticles%2F2017-02-10%2Fcongress-should-think-hard-before-repealing-the-johnson-amendment=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=DWuE11650gg5C0Ja95yI6jYlNIR70JDYURTj5wz%2FmII%3D=0>


Alan Brownstein





From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Thursday, May 4, 2017 9:05:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Johnson Amendment E.O.


Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.





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<m

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

That’s right. But an EO generates a bigger press release. Most of his EOs have 
just been instructions to others to think about something.

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 Saperstein, David
Sent: Thursday, May 4, 2017 2:54 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

But he didn't need an EO to instruct his Secretaries.

Sent from my iPhone

On May 4, 2017, at 2:50 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Agreed. There is nothing of substance here. Maybe more from the agencies down 
the road.

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] On Behalf Of Marty Lederman
Sent: Thursday, May 4, 2017 1:55 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Johnson Amendment E.O.

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

___
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.

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Agreed. There is nothing of substance here. Maybe more from the agencies down 
the road.

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 Marty Lederman
Sent: Thursday, May 4, 2017 1:55 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Johnson Amendment E.O.

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

___
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: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.


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 Marty Lederman
Sent: Thursday, May 4, 2017 11:54 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Johnson Amendment E.O.

Just came across this from David Saperstein’s 
testimony
 today.  He makes the point much better than I did--I would only add that 
virtually all of his hypos could be extended beyond the church, to countless 
activities of all 501(c)(3) organizations:
Let me offer some hypotheticals of the implications of a proposal that says any 
statement is allowed that does not involve extra expenses:

Suppose instead of one sermon, in every scheduled sermon for the half-year 
running up to the election, the pastor(s) endorses various candidates and 
reiterates those endorsements?

Suppose in every regular bulletin and regular email over those six months, the 
pastor or church leaders focus on endorsements of a party or a candidate(s)?

Suppose with the costs of local calls being de minimis these days, they allow 
their phones to be used for campaign phone banks?

Suppose a church has their congregants fill out cards for the offerings for 
later tax verification (putting their money and card in an envelope which they 
hand in) — and the church then adds envelopes and cards to fill out for 
contributions to the candidates they endorse and collect those with the 
offerings and someone from the campaign comes by every week and collects them.

Or suppose the President of Notre Dame or Catholic University adds a single 
sentence to their regular email to their scores of thousands of alumni : “I 
believe based on sound religious reasoning you should all vote for Candidate A 
and oppose Candidate B.”

Certainly de minimis but is that how tax deductible money should be used? In 
each of these there is no extra funding bulletins or emails, collecting 
offerings) what they would normally do.

Are proponents of this legislation arguing that although you might disapprove 
on other grounds, that as far as the law is concerned, this ought to be allowed 
because it really doesn’t constitute using tax exempt and tax deductible 
funding for partisan political purposes? What is the cumulative value of the 
salaries and the overhead of the congregation in making this electioneering 
possible? If the church is funded by tax deductible contributions, are not 
these contributions subsidizing this electoral activity? If the church has the 
benefit of tax exemption to support its eleomosynary work, does not the tax 
exemption support everything the church does including its endorsement 
activities? Everything about the church is subsidized by tax exempt and tax 
deductible money. And that is as true of one sermon as six months of sermons; 
of one bulletin as six months of bulletins.


___
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: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

I am not aware of anything like the ADF’s attempt to provoke a test case going 
on in the secular sector. But policy oriented 501(c)(3)s, which can engage in 
public education on their issue, probably violate the rules against implicit 
endorsements with some frequency. And they probably spend money on mass 
communications when they do it.

Maybe they avoid trouble by talking about parties or movements (the religious 
right) instead of candidates by name. But it’s hard to imagine that none of 
them made fundraising appeals based on the threat to the country posed by 
Donald Trump or Hillary Clinton.

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 Marty Lederman
Sent: Thursday, May 4, 2017 11:19 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Doug asks:  "Is there any reason to think that the IRS is pursuing cost-free 
endorsements by secular non-profits? If not, there is no discrimination to 
trigger Marty’s Establishment Clause argument about current enforcement policy. 
I have never seen any account of such a case against a secular non-profit."

I agree -- if the IRS were to look the other way whenever (c)(3)'s of all 
stripes endorse candidates, then that wouldn't violate the First Amendment.  
But is there any reason to think that other (c)(3)'s, i.e., other than 
churches, engage in such widespread, conspicuous violations of the law, let 
alone that the IRS turns a blind eye to them?  Not a rhetorical question:  I'm 
genuinely unaware of any such phenomenon, and would be grateful for any further 
information.

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Unless there has been some recent change in IRS policy that I don’t know about 
and that Marty does not suggest, the Amendment is not limited to “express” 
endorsements. The IRS jawboning, which is its only enforcement effort, 
describes many things that it views as implicit endorsements, such as voter 
guides that focus on issues of concern to the church, or comparisons of 
candidate positions to church positions. These are summarized in the CRS report 
he links to.

There is an ambiguity at the end of the paragraph that begins “notably.” 
Contributions to the 501(c)(4) would not be tax deductible. Creating the 
501(c)(4) would not change the status of the original 501(c)(3).

The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to 
political expenditures. The hard issue of cost-free endorsements in sermons was 
not presented.

Is there any reason to think that the IRS is pursuing cost-free endorsements by 
secular non-profits? If not, there is no discrimination to trigger Marty’s 
Establishment Clause argument about current enforcement policy. I have never 
seen any account of such a case against a secular non-profit.

The real problem with what Marty anticipates from the EO is this: Since the IRS 
already has an implicit policy of non-enforcement with respect to cost-free 
endorsements, the only possible effect of the EO is to direct non-enforcement 
with respect to political expenditures of money. And that would open up an 
enormous loophole in campaign finance regulation and in the rule that political 
expenditures are not tax deductible.

A House Subcommittee is holding hearings this morning on the bills to repeal or 
amend the Johnson Amendment.

Shameless plug: I wrote about the Johnson Amendment here: 
https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

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 Marty Lederman
Sent: Thursday, May 4, 2017 8:56 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937<tel:(202)%20662-9937>


___
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 can

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Unless there has been some recent change in IRS policy that I don’t know about 
and that Marty does not suggest, the Amendment is not limited to “express” 
endorsements. The IRS jawboning, which is its only enforcement effort, 
describes many things that it views as implicit endorsements, such as voter 
guides that focus on issues of concern to the church, or comparisons of 
candidate positions to church positions. These are summarized in the CRS report 
he links to.

There is an ambiguity at the end of the paragraph that begins “notably.” 
Contributions to the 501(c)(4) would not be tax deductible. Creating the 
501(c)(4) would not change the status of the original 501(c)(3).

The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to 
political expenditures. The hard issue of cost-free endorsements in sermons was 
not presented.

Is there any reason to think that the IRS is pursuing cost-free endorsements by 
secular non-profits? If not, there is no discrimination to trigger Marty’s 
Establishment Clause argument about current enforcement policy. I have never 
seen any account of such a case against a secular non-profit.

The real problem with what Marty anticipates from the EO is this: Since the IRS 
already has an implicit policy of non-enforcement with respect to cost-free 
endorsements, the only possible effect of the EO is to direct non-enforcement 
with respect to political expenditures of money. And that would open up an 
enormous loophole in campaign finance regulation and in the rule that political 
expenditures are not tax deductible.

A House Subcommittee is holding hearings this morning on the bills to repeal or 
amend the Johnson Amendment.

Shameless plug: I wrote about the Johnson Amendment here: 
https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it

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 Marty Lederman
Sent: Thursday, May 4, 2017 8:56 AM
To: Law & Religion issues for Law Academics 
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

No. But disagreements over matters related to sexual morality more broadly -- 
gay rights, abortion, contraception, sex outside marriage, in vitro 
fertilization, etc. -- explains much of the hostility to exemptions and the 
breakup of the coalition that passed RFRA.



On funding, there are many relevant changes: the decline of Protestant-Catholic 
tensions, the evangelicals switching sides, many black parents switching sides, 
the rise of the secular school choice movement. All these things both changed 
the numbers and reframed the issue.



Shameless plug: On the first point, see Sex, Atheism, and the Free Exercise of 
Religion, 88 U. Detroit Mercy L. Rev. 407 (2011). On the second, see Why the 
Supreme Court Changed Its Mind About Government Aid to Religious Institutions: 
It's a Lot More Than Just Republican Appointments, 2008 BYU L. Rev. 275.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Wednesday, April 26, 2017 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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 Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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.
--
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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 Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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: Bible classes in elementary schools

[Laycock, H Douglas (hdl5c)]

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [martin.leder...@law.georgetown.edu]
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools

Any possibility 
this
 is constitutional?
___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

And you can argue for no aid because you think it's normatively desirable -- 
although at times I have understood you to be on the other side of the issue, 
or at least to have taken a much more nuanced view.



But you cannot win the normative argument by claiming that the Founders 
decided, because they issue they decided was very different. And we should not 
exaggerate what the Supreme Court did, because for most of the last 70 years, 
it struggled with two very different understandings of the Establishment Clause.



There can be no original intent, understanding, or public meaning with respect 
to government programs to distribute funds to broad classes of beneficiaries, 
because there were essentially no such programs in 1791 or 1868.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, April 22, 2017 11:44 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Mark suggests I am advocating "disarmament for those . . . who think the 
underlying originalist principles incorporate at the very least 
non-discrimination against religious groups."  Au contraire.  To arms, Mark!  
Please suggest something -- anything -- that supports the argument that the 
original meaning of the equal protection clause, or the free exercise clause, 
supports equal treatment of religious groups in the distribution of state 
funds.  It seems to me that the evidence, from all those state constitutional 
provisions re: no funding of religion, cuts strongly the other way, but I am 
open to persuasion.

To Doug:  The Court adhered to a strong "free exercise exemption" principle 
only from 1963-1981, and Court majorities explicitly rejected that principle 
before 1963 and afterward.  You still fight for it because you think it's 
normatively desirable.  Fine.  And there has never been a repudiation by a 
majority of a "weaker" no-aid principle -- i.e., the state may not directly 
subsidize worship or religious instruction (a principle to which O'Connor 
plainly adhered, even as she wrote opinions that upheld aid for remedial 
teachers in secular subjects in religious schools, and aid for computers and 
other materials restricted to secular use).

On Sat, Apr 22, 2017 at 11:19 AM, Mark Scarberry 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_________
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, be

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

onal note, I am a strong supporter of parochial education​. I send 
both of my kids to religious schools at considerable expense. But I am 
concerned with the trending winnowing away of the religious character of these 
institutions if they begin to accept state funds and the state imposes hiring, 
curriculum, and other regulations that impinge on this character in order to 
protect the taxpayers' secular investment.

Ultimately, I do anticipate that the Court, if it reaches the merits, will find 
in favor of Trinity Lutheran and accept the school's word that the playground 
will be used for secular purposes.

Given the bakery and photographer cases, and threats to require facilities to 
be open to all comers, I think a follow-up round of litigation on usage will be 
unavoidable and given the results of the existing wedding services cases 
involving small businesses, it would seem that churches ought to be wary of 
what is lurking on the horizon if Trinity wins.

Thank you for the very informative and thoughtful points and discussion.

Michael Peabody, Esq.
President,
Founders First Freedom

On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

The funding question resolved in the founding generation was special allocation 
of public funds, not part of any broader program or category, to support the 
core religious functions of churches -- the salaries of clergy mostly, but also 
sometimes the construction of churches, or the income from glebe lands, which 
could be used for any purpose the church chose. That kind of expenditure was 
and is unconstitutional; there is no modern dispute about that.



In that environment,  the principle of no discrimination in favor of or against 
religion was entirely consistent with the principle of no funding for religion. 
There were no programs of funding broad categories of private activities.



Today's issue is nondiscriminatory funding of secular functions carried out by 
religious organizations in religious contexts. Now the principles of no 
discrimination and no funding squarely conflict, and we have to choose between 
them. And the founding generation did not make that choice.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

The funding question resolved in the founding generation was special allocation 
of public funds, not part of any broader program or category, to support the 
core religious functions of churches -- the salaries of clergy mostly, but also 
sometimes the construction of churches, or the income from glebe lands, which 
could be used for any purpose the church chose. That kind of expenditure was 
and is unconstitutional; there is no modern dispute about that.



In that environment,  the principle of no discrimination in favor of or against 
religion was entirely consistent with the principle of no funding for religion. 
There were no programs of funding broad categories of private activities.



Today's issue is nondiscriminatory funding of secular functions carried out by 
religious organizations in religious contexts. Now the principles of no 
discrimination and no funding squarely conflict, and we have to choose between 
them. And the founding generation did not make that choice.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, April 21, 2017 4:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.


___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

Advocate Health Care does not present the question Mr. Peabody raises, or at 
least not squarely. The religious hospitals there do not seek exemption under 
some general guarantee of religious liberty; they seek to enforce a specific 
exemption that Congress enacted. The case is about statutory interpretation, 
and I expect the Court to treat it as such whichever way it decides.

The pipermail link in Chris Lund's post has citations to further academic 
discussion of the basic point. The interpretation of neutrality most consistent 
with liberty for all is neutral incentives, neither encouraging nor 
discouraging religion. That sometimes aligns with neutral categories, and 
sometimes requires exceptions.

Mr. Peabody's second post asks whether the church forfeits its free exercise 
rights when it accepts government funds. That is a question of unconstitutional 
conditions. The government's funding may increase the weight of its interest 
and tip the balance against exemptions in close cases. But the government 
should not generally be able to buy up constitutional rights with its general 
welfare spending.  And there is no connection between a safer playground 
surface and requiring a church to host a religious ceremony that violates its 
core teachings about marriage or any other religious matter.

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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Thursday, April 20, 2017 11:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people insist that religious groups 

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.

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 Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):

"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.


- Jim


On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:
There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric
Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687<tel:(530)%20752-8687>

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

That Will arose in state court is probably why the Court wrote it in terms of 
who is a person. They had not yet held that the Eleventh Amendment applies in 
state court (that’s Alden v Maine, in 1997 I think). So they said that § 1983 
doesn’t create a cause of action. The metastasizing of sovereign immunity 
reaches every where.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:45 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric
Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

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] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



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] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they descri

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

But the whole point of the voluntary cessation doctrine is that a promise to 
comply in the future is not enough.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:28 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

Well if that is true, and I think it is, the state's promise to treat their 
grant applications in the future equally with all others is all they can get 
(admittedly they'd rather have an injunction) but that seems a slender reed.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:22 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.

So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.

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] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

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] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Because the Court held that neither a state, nor a state official in his 
official capacity, is a "person" within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

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 Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven't looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



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] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it's paid out, but I don't actually 
know that.



They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.



Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.



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] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Chur

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.

So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

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] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be eligible to compete, and the church is 
receiving the requested relief?

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reverse the policy change. A decision to that effect could be 
reviewed in a different lawsuit, but that is always true in voluntary cessation 
cases. If the policy is ever reversed, the court could decide about it then. 
But the voluntary cessation doctrine says that the plaintiff who has gotten 
this far is entitled to a decision now, in this case.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

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 Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be eligible to compete, and the church is 
receiving the requested relief?

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reverse the policy change. A decision to that effect could be 
reviewed in a different lawsuit, but that is always true in voluntary cessation 
cases. If the policy is ever reversed, the court could decide about it then. 
But the voluntary cessation doctrine says that the plaintiff who has gotten 
this far is entitled to a decision now, in this case.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

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 Marty Lederman
Sent: Tuesday, April 18, 2017 3:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Is Trinity Lutheran Church moot?

Answer:  Probably, but it may depend upon some still-uncertain facts:

https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html

___
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

Pleas

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reverse the policy change. A decision to that effect could be 
reviewed in a different lawsuit, but that is always true in voluntary cessation 
cases. If the policy is ever reversed, the court could decide about it then. 
But the voluntary cessation doctrine says that the plaintiff who has gotten 
this far is entitled to a decision now, in this case.

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 Marty Lederman
Sent: Tuesday, April 18, 2017 3:31 PM
To: Law & Religion issues for Law Academics 
Subject: Is Trinity Lutheran Church moot?

Answer:  Probably, but it may depend upon some still-uncertain facts:

https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html
___
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: State-sanctioned church "police force"

[Laycock, H Douglas (hdl5c)]

There is a North Carolina case a few years ago challenging the campus police 
forces of religiously affiliated universities as an Establishment Clause 
violation. The NC courts upheld the police forces. That looked more like equal 
treatment; this looks more like a special deal.

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 Paul Horwitz
Sent: Wednesday, April 12, 2017 11:04 AM
To: Law & Religion issues for Law Academics 
Subject: State-sanctioned church "police force"


Here's a story from the AP. What do you (or, to use the proper and incredibly 
useful grammar of my adopted state, "y'all") think? Is it a quasi-Grendel's Den 
case or something of the sort? A direct Establishment Clause problem insofar as 
it involves granting governmental or quasi-governmental status to a church 
itself? A Kiryas Joel-type case insofar as it grants a governmental privilege 
or status that might or might not be granted to, say, a mosque or some other 
organization? (Not that I'm crazy about that aspect of the Kiryas Joel ruling.) 
Or, insofar as state law allows the state to empower various entities to have 
police forces, is it constitutional because respectful of equal access to 
governmental benefits or privileges?



Paul Horwitz

University of Alabama School of Law


MONTGOMERY, Ala. (AP) - The Alabama Senate has voted to allow a church to form 
its own police force.
Lawmakers on Tuesday voted 24-4 to allow Briarwood Presbyterian Church in 
Birmingham to establish a law enforcement department.
The church says it needs its own police officers to keep its school as well as 
its more than 4,000 person congregation safe.
Critics of the bill argue that a police department that reports to church 
officials could be used to cover up crimes.
The state has given a few private universities the authority to have a police 
force, but never a church or non-school entity.
Police experts have said such a police department would be unprecedented in the 
U.S.
A similar bill is also scheduled to be debated in the House on Tuesday.

___
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: New Jersey RLUIPA lawsuit

[Laycock, H Douglas (hdl5c)]

The judge denied a motion to dismiss in the Culpeper case, which now appears to 
be headed for mediation.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Eric Rassbach [erassb...@becketlaw.org]
Sent: Thursday, April 06, 2017 5:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Jersey RLUIPA lawsuit



This post by Prof. Friedman is relevant to the discussion below from November. 
Also, I believe I saw elsewhere that DOJ was pushing the Culpeper mosque case 
along.


http://religionclause.blogspot.com/2017/04/doj-gives-new-emphasis-to-combating.html

DOJ Gives New Emphasis To Combating Religious Hate 
Crimes
religionclause.blogspot.com
Attorney General Jeff Sessions yesterday  issued a Memo ( full text ) to U.S. 
Attorney’s Offices and Department of Justice component heads ...






From: religionlaw-boun...@lists.ucla.edu  
on behalf of Kniffin, Eric N. 
Sent: Tuesday, November 22, 2016 6:30 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Jersey RLUIPA lawsuit


As Eric Rassbach mentioned, the Bush 43 administration brought a number of 
RLUIPA cases on behalf of Muslim religious groups. More broadly, the Civil 
Rights Division was given a leading role in the Bush administration’s tried to 
reach out to Muslim communities (and other groups mistaken for Muslims such as 
Sikhs) in the aftermath of 9/11. I was in the Civil Rights Division for parts 
of the Bush and Obama administrations and was proud to play a small part in 
these efforts.



The Civil Rights Division’s work to defend Muslims’ rights in the years after 
9/11 was celebrated in a 2011 conference, which was documented in a report 
published by the DOJ the following year: 
https://www.justice.gov/sites/default/files/crt/legacy/2012/04/16/post911summit_report_2012-04.pdf.
 Here are some highlights from the report:

Confronting Discrimination in the Post-9/11 Era 
...
www.justice.gov
Confronting Discrimination in the Post-9/11 Era: Challenges and Opportunities 
Ten Years Later . A Report on the Civil Rights Division’s Post-9/11 Civil 
Rights Summit





-  In the first few months after 9/11, DOJ leaders attended more than 
100 meetings and events with representatives from the Arab, Muslim, Sikh, and 
South Asian communities.



-  One of the initiatives that came of these meetings was a “special 
backlash crime task force,” a team of AUSAs and prosecutors in the Civil Rights 
Division that was responsible for documenting, investigating, referring, and 
prosecuting threatened and actual violence against minority religious groups.



-  In the first few months after 9/11, DOJ investigated more than 350 
backlash-related criminal complaints, resulting in more than 70 state and local 
criminal prosecutions and 12 federal prosecutions.



-  In the first six years after 9/11, DOJ investigated more than 800 
incidents involving violence, threats, vandalism, and arson against Muslims or 
those perceived to be Muslims.



-  As to RLUIPA in particular, in the period from 2000 to 2010, 14% of 
DOJ’s RLUIPA land-use investigations involved mosques or Muslim schools, though 
Muslims only comprise 1% of the US population (page 11 of the report highlights 
some of these cases).



With Eric Rassbach, I am hopeful that the incoming administration will be as 
aggressive in reaching out to and protecting the Muslim community as the Bush 
DOJ was.



Eric





Eric N. Kniffin


Of Counsel


719.386.3017 office



719.386.3070 fax


eknif...@lrrc.com


_


[cid:image003.png@01D244DD.BC150100]


Lewis Roca Rothgerber Christie LLP


90 South Cascade Avenue, Suite 1100


Colorado Springs, Colorado 80903-1662


lrrc.com













From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Tuesday, November 22, 2016 3:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Jersey RLUIPA lawsuit



Chip --



I'm afraid I don't have any crystal ball on that. It is my recollection that 
there were a number of mosque cases brought during the previous Republican 
administration. One I know about because it was our case was the Albanian 
Associated Fund mosque case in Wayne, NJ. (New Jersey seems to be a bit of a 
hotspot on these.)

Eric





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

RE: Re-upping: Sterling: A helpful test case on RFRA burdens

[Laycock, H Douglas (hdl5c)]

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA's supporters overreach on some issues does not 
change the fact that RFRA's opponents are overreaching on other issues.

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 Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Marty 
Lederman <lederman.ma...@gmail.com>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


Beautifully said Doug. I would just add that the kind of potential abuse you 
are talking about is maybe inevitable when this kind of law becomes part of the 
culture wars, and RFRA certainly has become that. Even Justice Alito has given 
speeches saying the potential non-enforcement of RFRA has become a threat to 
"religious liberty."



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Monday, February 20, 2017 3:37:26 PM
To: Law & Religion issues for Law Academics; Marty Lederman
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

This case may well be a trial lawyer's failure to put on the evidence. Lawyers 
too often think the burden on religious practice is obvious, and fail to elicit 
the testimony that would clearly explain how and why the practice is religious 
and important and the challenged rule is a substantial burden. I suspect that 
more could have been offered here, but we don't know that, and the record is 
what it is.

Passages in the Court's opinion in Hobby Lobby invite the kind of argument that 
Paul is making. But reading those passages for their maximum possible reach 
would be wholly unworkable, which is why seven of eight circuits refused to 
read it that way in the litigation that led to Zubik. The cryptic order in 
Zubik implies a four-four split, which in turn implies that four Justices were 
prepared to find a substantial burden there. I think that would have been a 
mistake, but the claimed burden there, however attenuated, at least connected 
to an important religious teaching. Far more implausible and attenuated claims 
will follow, in which religious claimants seek to govern the world by insisting 
that the way the world is currently being run burdens their religion, and no 
one can question their claim of burden. These kinds of claims will discredit 
the whole enterprise, which faces enough hostility already.





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] On Behalf Of Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D=0>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words "No weapon formed against me 
shall prosper"--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martia

RE: Re-upping: Sterling: A helpful test case on RFRA burdens

[Laycock, H Douglas (hdl5c)]

This case may well be a trial lawyer’s failure to put on the evidence. Lawyers 
too often think the burden on religious practice is obvious, and fail to elicit 
the testimony that would clearly explain how and why the practice is religious 
and important and the challenged rule is a substantial burden. I suspect that 
more could have been offered here, but we don’t know that, and the record is 
what it is.

Passages in the Court’s opinion in Hobby Lobby invite the kind of argument that 
Paul is making. But reading those passages for their maximum possible reach 
would be wholly unworkable, which is why seven of eight circuits refused to 
read it that way in the litigation that led to Zubik. The cryptic order in 
Zubik implies a four-four split, which in turn implies that four Justices were 
prepared to find a substantial burden there. I think that would have been a 
mistake, but the claimed burden there, however attenuated, at least connected 
to an important religious teaching. Far more implausible and attenuated claims 
will follow, in which religious claimants seek to govern the world by insisting 
that the way the world is currently being run burdens their religion, and no 
one can question their claim of burden. These kinds of claims will discredit 
the whole enterprise, which faces enough hostility already.





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 Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman 
Cc: Law & Religion issues for Law Academics 
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified, a "mental reminder” to her and that she did not 
intend to “send a message to anyone” else.  Paul's petition asserts, without 
citation to the record, that "[t]he conduct at issue was an undisputed exercise 
of religion by LCpl Sterling to beseech a higher power for spiritual strength 
and fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  Sterling did not testify, or otherwise 
claim, however, that her religion mandated that she post the signs, or that it 
was a common practice or tenet of her religion.  More to the point, she 
apparently did not testify about whether or why posting the signs was important 
to her, or a significant part of her religious exercise.  She did not, for 
example, explain why it would not have been just as effective for her to post 
the signs in smaller font that others would not notice, or to use other means 
of "mentally reminding" herself.

The Court of Appeals for the Armed Forces held that Sterling had failed to meet 
her RFRA burden because she did not establish either the "subjective importance 
of the conduct" to her religious exercise, or that such posting was a “tenet” 
or "precept” of her faith.

My question:  Can it really be the case that Sterling has established a 

Arlene's Flowers

[Laycock, H Douglas (hdl5c)]

Unanimous affirmance.

https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent

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

___
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.

Standing Rock

[Laycock, H Douglas (hdl5c)]

The Standing Rock Sioux’s RFRA request for a TRO is here:

https://embed.contagiousmedia.com/embed/sub/item-ol3xgp-38nio?sb=10497046=1486655474=

They claim to own the waters of Lake Oahe, thus distinguishing unsuccessful 
religious liberty claims by tribes in Lyng, Navajo Nation, and Snoqualmie. 
Beginning at p.34, they also say that Navajo Nation and Snoqualmie (and by 
clear implication Lyng, although they don’t say that) are no longer good law. 
They are inconsistent with the passage in Hobby Lobby suggesting that the 
courts cannot inquire into the substantiality of any alleged burden on the 
exercise of religion. The Eighth Circuit was the only circuit to take those 
statements literally and at full value in the litigation culminating in Zubik, 
although this brief does not cite that case.

Does anyone expect the courts in general, or the conservative Justices in 
particular, to adhere to Hobby Lobby’s view of burden in a case like this, 
where the political valences are reversed?


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

[Laycock, H Douglas (hdl5c)]

Yes. This is the closest he came to expressing an opinion that I know about.

Going into O Centro, we all wondered if those who voted for Smith would also be 
hostile to the statute. It turned out that they weren’t. I think that is a 
better indicator than Hobby Lobby,  because that had become a culture wars case 
and they all appeared to vote their political preferences.

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 Oleske
Sent: Tuesday, November 22, 2016 4:23 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Scalia's views of RFRA?

During the Holt v. Hobbs oral argument, in discussing the strict scrutiny 
standard in RLUIPA, Justice Scalia said the following:

"We’re talking here about a compelling State interest. Bear in mind I would not 
have enacted this statute, but there it is. It says there has to be a 
compelling State interest. And you’re ­­ you’re asking, well, let’s balance 
things; let’s be reasonable. Compelling State interest is not a reasonableness 
test at all." (emphasis added)

- Jim

On Tue, Nov 22, 2016 at 1:07 PM, Case, Mary Anne 
> wrote:
Other than his stray remarks at the Hobby Lobby oral argument (for example 
noting that RFRA went beyond the pre-Smith case law in mandating not just a 
compelling state interest but narrow tailoring) did Scalia ever in any venue 
set forth his views on RFRA (for example expressing disappointment that 
Congress had rejected his bid for a clear rule and sent back to judges the task 
of “weigh[ing] the social importance of all laws against the centrality of all 
religious beliefs”(Smith) or expressing satisfaction that exemptions now had 
the democratic warrant he said in Smith they needed?

___
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: Hostility vs. feeling that certain people shouldn't marry each other

[Laycock, H Douglas (hdl5c)]

It's true that sometimes we aren't sure what the defendant did. Did he fire the 
plaintiff because of race or because of bad performance? Then we have to 
inquire into motive in order to establish disparate treatment.

But there is no such ambiguity when there is a policy of disparate treatment. 
If defendant says he will hire whites but not blacks for a particular set of 
positions, or he will do opposite-sex weddings but not same-sex weddings, 
disparate treatment is established and his reasons for this unequal policy are 
irrelevant to the issue of whether there is discrimination. His reasons may be 
highly relevant to whether there is a religious liberty defense.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 4:05 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other

I'm not sure it is that easy Doug because often the difference between a 
disparate impact and disparate treatment case turns on the motives/intent of 
the decision-makers.

Mark, it is true that many of us feel that, in the context of the current 
debates over SSM, hostility to allowing gays the same economic and social 
benefits of marriage as heterosexuals cannot be meaningfully separated from 
hostility to gays and lesbians. After all, denied those benefits under the law, 
they have no where else to go to acquire them. That point of course is separate 
from whether such hostility has a remedy under the Constitution.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   We

FW: Hostility vs. feeling that certain people shouldn't marry each other

[Laycock, H Douglas (hdl5c)]

Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Volokh, Eugene >
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don't think we ever ask whether a private citizen's 
discriminatory actions were "at bottom" based on "hostility" or rather based on 
"no objection to [people's identity]" but rather a "feel[ing]" that people of 
certain identities shouldn't do something.  And I think we basically don't do 
that even as to government actors' imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
"hostility" to women or even "hostility to [women] receiving equal treatment" 
(except in the tautological sense that all decisions to treat unequally are 
based on "hostility" to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just "feel[s] they shouldn't" work outside the home when 
they have small children.  But that doesn't matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of "hostility" -- is violating Title VII.

   Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn't want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can't see how courts can distinguish 
between them on the grounds of a perception that one's discriminatory conduct 
is motivated by "hostility" and the other's is motivated by a "feeling [that 
certain people] 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

Of course many couples weddings are entirely secular; in the very large ARIS 
survey in 2008, 30% of married Americans said that they were not married in a 
religious ceremony.

But to those that believe that marriage is inherently a religious relationship, 
ordained by God and defined by religious rules no matter how the couple or the 
state may think about it, then the wedding that creates that religious 
relationship is inherently a religious ceremony. That is what I understand to 
be the position of objectors like Stutzman. It is religious for her, and 
religiously prohibited, even if it is secular for you.

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

From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Monday, October 10, 2016 9:07 PM
To: Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Doug, I think you make a good argument. I have two quibbles. The statement that 
a wedding is an "inherently religious context" does not describe my wedding or 
the weddings of millions of Americans.

We are also in a world where somehow the corporate selling of commercial goods 
by a large company has been deemed a "religious" activity so, even though that 
point is maybe not directly relevant to the issues here, I am quite fearful of 
the slippery slope of exemptions laws.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 8:59 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Eric, I agree that it is discrimination. I thought I was clear about that.



I would grant a free exercise exemption, assuming another vendor is available 
without undue difficulty, principally for two reasons. First, for believers 
like Baronelle Stutzman, a wedding is an inherently religious context, where 
the government's interest is weak and the religious interest is strong. And 
second, because the same-sex couple still gets to live their own lives and 
their own identities by their own deepest values. But if an exemption is 
denied, Stutzman does not get to do that. She must surrender her occupation or 
surrender her religious commitments. I don't begin to share her views, but the 
balance of hardships tips decidedly in her favor.


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

From: Eric J Segall [eseg...@gsu.edu<mailto:eseg...@gsu.edu>]
Sent: Monday, October 10, 2016 6:09 PM
To: Laycock, H Douglas (hdl5c)
Cc: Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
I fail to understand how "I will sell goods to gays and lesbians but I will not 
sell goods to gays and lesbians for their weddings though I will sell goods to 
the exact same weddings as long as gays are not involved" is not quite serious 
discrimination against gays and lesbians. I might be able to see some artistic 
exception on free speech grounds being possibly applicable but the distinction 
Doug suggests can't be right, as Marty persuasive argued. Discrimination can't 
be a matter of degree.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.eservices.virginia.edu%2Fowa%2Fredir.aspx%3FREF%3DzESHIygd7zmlkfgdaIUvM11xLKDn1z7py-OUslR5EL0mebILcfHTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1=01%7C01%7Cesegall%40gsu.edu%7Cdd0aab79e5a44023812708d3f171e337%7C515ad73d8d5e4169895c9789dc742a70%7C0=NTkWVSZKdZNIbVo1cC%2FUUsDNyr47w2Mw%2BiKmuLWRAZs%3D=0>>
 wrote:
I did not sign the scholars' brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie's BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie's argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


Douglas Laycock
Robert E. Scott Distinguished Professor of L

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

Eric, I agree that it is discrimination. I thought I was clear about that.



I would grant a free exercise exemption, assuming another vendor is available 
without undue difficulty, principally for two reasons. First, for believers 
like Baronelle Stutzman, a wedding is an inherently religious context, where 
the government's interest is weak and the religious interest is strong. And 
second, because the same-sex couple still gets to live their own lives and 
their own identities by their own deepest values. But if an exemption is 
denied, Stutzman does not get to do that. She must surrender her occupation or 
surrender her religious commitments. I don't begin to share her views, but the 
balance of hardships tips decidedly in her favor.



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

From: Eric J Segall [eseg...@gsu.edu]
Sent: Monday, October 10, 2016 6:09 PM
To: Laycock, H Douglas (hdl5c)
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I fail to understand how "I will sell goods to gays and lesbians but I will not 
sell goods to gays and lesbians for their weddings though I will sell goods to 
the exact same weddings as long as gays are not involved" is not quite serious 
discrimination against gays and lesbians. I might be able to see some artistic 
exception on free speech grounds being possibly applicable but the distinction 
Doug suggests can't be right, as Marty persuasive argued. Discrimination can't 
be a matter of degree.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=zESHIygd7zmlkfgdaIUvM11xLKDn1z7py-OUslR5EL0mebILcfHTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1>>
 wrote:

I did not sign the scholars’ brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie’s BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie’s argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


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

From: 
conlawprof-boun...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1>
 
[mailto:conlawprof-boun...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1>]
 On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2016 5:15 PM
To: John Q. Barrett 
<barre...@stjohns.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=d8lsaeEdZ4BK2eRtsL7wnt95qAqma7nsJ0LyFb1kzA8mebILcfHTCAFtYWlsdG86YmFycmV0dGpAc3Rqb2hucy5lZHU.>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=_BIjchWfs954joVrDmYtQdpUfySntuATY8OxyYKvkZgmebILcfHTCAFtYWlsdG86cmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.>>;
 
conlawp...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=dFcKBu5EdujZuee_qeykYx2BOOR8OVNXCJ-LEl5EQdUmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZkBsaXN0cy51Y2xhLmVkdQ..>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

In other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

As I'm sure you know, those were basically the facts in McClung itself.

___
To post, send message to 
conlawp...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=HHbLJ7pMd0b4MltW7bdJ7rziS-khkhTGcoBKOSYnbZImebILcfHTCAFtYWlsdG86Q29ubGF3cHJvZkBsaXN0cy51Y2xhLmVkdQ..>
To subscribe, unsubscribe, change options, or get password, see 
https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.uc

FW: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

I did not sign the scholars’ brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie’s BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie’s argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


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

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2016 5:15 PM
To: John Q. Barrett >
Cc: Law & Religion issues for Law Academics 
>; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

In other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

As I'm sure you know, those were basically the facts in McClung itself.

___
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: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

I did not sign the scholars’ brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie’s BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie’s argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


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

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2016 5:15 PM
To: John Q. Barrett 
Cc: Law & Religion issues for Law Academics ; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

In other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

As I'm sure you know, those were basically the facts in McClung itself.

On Mon, Oct 10, 2016 at 4:58 PM, John Q. Barrett 
> wrote:
Marty,

Many thanks – I was not familiar with this brief.

It concedes, laudably, that general refusals to serve gay customers – here, to 
sell them flower arrangements – are legally “troublesome” and “dubious.”

Given that, I don’t see why it changes anything as a legal matter when would-be 
customers want to buy flower arrangements for use at a lawful, indeed a 
constitutionally-protected, wedding.  The brief, by using the word “celebrate” 
so much and citing Wooley v. Maynard, claims that the sales would be 
unconstitutionally compelled speech, but really they’re only floral 
arrangements/this is conduct/this is commerce.  So too Justice Kennedy’s line 
in Obergefell, quoted three times in the brief, that he and the Court were not 
disparaging those who believe same-sex marriage to be wrong—that was about 
personal belief (what’s in one’s heart), not about public commerce (who get 
served in one’s store).

The amici argue that because Ms. S. serves  (gay, straight, black, 
Catholic, etc.) customers sometimes in some ways, she may [why?/based on 
what?—of course the idea is the Free Exercise Clause, but the brief doesn’t say 
that] refuse to serve them other times and in other ways, when she believes 
it’s connected to something she doesn’t like or believe in, religiously.  In 
other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

Finally, the brief’s claims about public division/impending civil war seem 
overblown to me.  We all have our experiences and anecdotes, but mine involve 
devoutly Christian, anti-same-sex marriage caterers, etc. in upstate New York 
who now are okay and better with new same-sex wedding business while holding 
onto, but perhaps with warmer hearts, their same beliefs.  To me, those seem 
the two halves of what the law protects, in the “balanced” way that the brief 
claims to desire.

Best,

John

Professor John Q. Barrett
St. John's University School of Law
www.stjohns.edu/academics/bio/john-q-barrett

"Jackson List" archive site (searchable):
http://thejacksonlist.com

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Monday, October 10, 2016 10:40 AM
To: conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics
Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 

RE: Risk of job loss to employees who avail themselves of contraception?

[Laycock, H Douglas (hdl5c)]

I doubt that any one has first-hand knowledge. But I will offer two 
suppositions with reasonably high confidence.

First, the insurer paying for contraception directly should have no greater 
confidentiality risk than the insurer paying through the insurance plan. I 
doubt that a second insurance policy would be any different, but the government 
has strongly resisted that in any event.

Second, I have never heard of a religious employer firing someone for using 
contraception. If they started doing that, who would they have left? They 
couldn’t staff their facilities. I have heard about firings over in vitro 
fertilization (where the Church believes that discarded embryos are human 
beings who are killed), and over same-sex marriages. But not over 
contraception. My failure to hear about it doesn’t mean it’s never happened. 
But it is surely rare.

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 Case, Mary Anne
Sent: Wednesday, August 24, 2016 11:24 PM
To: Law & Religion issues for Law Academics 
Subject: Risk of job loss to employees who avail themselves of contraception?

As the quixotic quest for less restrictive alternatives to the contraception 
mandate accommodation proposed by the Obama Administration continues, am I 
right to think that, from the perspective of the employee contraceptive users, 
a concern has to be confidentiality because, to the extent their employer is a 
religious non-profit opposed to contraception, they risk being fired should it 
become known they are, through their use of contraceptives, not living up to 
the tenets of their employer’s religion?  I have seen no explicit discussion of 
the effect of a less seamless coverage (for example through a separate policy 
or card such as favored by Justice Alito in oral argument) on confidentiality.  
Is there one? And if there is not one, is that because a) confidentiality can 
be legally and practically assured to the same extent in any event or b) 
because, to the extent it is legal to require these employees to abide by 
Church prohibitions on contraception, factoring into the feasibility of an 
alternative to the accommodation the degree to which the alternative 
facilitates deceiving the employer is not something that can openly and 
properly be discussed?Please forgive my ignorance if the answers to these 
questions are obvious.
___
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: Has anyone compiled the facts re Hobby Lobby type corporate ACA mandate plaintiffs?

[Laycock, H Douglas (hdl5c)]

The only piece of information I'm aware of is that one of the government's 
briefs in Zubik says there are only 87 of them.

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 Case, Mary Anne
Sent: Thursday, August 11, 2016 11:39 AM
To: Law & Religion issues for Law Academics 
Subject: Has anyone compiled the facts re Hobby Lobby type corporate ACA 
mandate plaintiffs?

Is there, as far as any of you know, any available compilation of background 
factual data concerning all of the for profit objectors to the ACA 
contraception mandate, including, for example, such information as their 
religious affiliation, their corporate form, the familial relationships of 
their shareholders, the nature of their manifestation of religion (not limited 
to their objections to the mandate), the extent of their objections to the 
mandate (e.g. all contraception or only abortifacients), etc.?
___
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: stocking rule

[Laycock, H Douglas (hdl5c)]

There are extremely detailed findings of fact that conclude exactly what Steve 
doubts and Marty appears to deny: pharmacies fail to stock or deliver drugs, 
and refer folks elsewhere, for a vast array of reasons. The district court 
further found that the Commission had never, ever, interfered with these 
practices.

The Ninth Circuit did not say that the district court was wrong about either of 
those findings. All it said was that the Commission had not formally approved 
the many referrals for business reasons, and that maybe those referrals 
actually violate the rules, even if those rules are never enforced against 
anyone but Stormans, and that if anyone ever complains about a referral with 
business motivations, maybe the Commission will do something about it.

We are now 26 years since Employment Division v. Smith made the concept of 
generally applicable law central to the Free Exercise Clause. And we still 
don’t know what that concept means. The issue is clearly cert worthy, even if 
the Court did not want to confront it short handed, and even if the Pharmacy 
Commission’s dodge of not actually writing down the rules it does and does not 
enforce muddied the record here.

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 Steven Green
Sent: Tuesday, June 28, 2016 4:39 PM
To: Law & Religion issues for Law Academics 
Subject: stocking rule

In follow-up to Marty's comments, isn't comparison to the business stocking 
rule a red herring?  As many have pointed out, pharmacies have many reasons not 
to carry every drug: supply and demand; availability; storage space, etc.  
Based on my personal experience and in having a child with a special need, 
pharmacies are always willing, if not eager for the $, to order a drug they 
don't carry.  So by not carrying a drug they are not "refusing" to do so in the 
same manner as in Stormans.  So is it accurate to say that pharmacies receive 
an exemption for business reasons that they wouldn't for religious reasons?
Steve

--
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732
___
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: Cert. Petition Filed in Pharmacy Free Exercise Case

[Laycock, H Douglas (hdl5c)]

The lack of clarity in the record arises the state’s decision to pursue its 
goals by indirection. Nothing in the text of the regulations prohibits refusals 
to stock and deliver drugs for religious, moral, or ethical reasons. Yet 
everyone understands that that is the whole point. Nothing in the text of the 
regulations either prohibits or permits refusals to stock and deliver drugs for 
business reasons. Yet nearly everyone understands that permitting the 
longstanding tradition of  refusals for many and varied business reasons was an 
equally intended part of the deal. Everything is clear to the industry, but 
nothing is written down.

The Ninth Circuit allowed this strategy to work. It accepted without question 
the unwritten ban on religious refusals, and refused to acknowledge the equally 
unwritten permission for business refusals.

The argument that it was also part of the intention to prohibit refusals for 
secular ethical reasons is like Hialeah’s argument that its ordinances would 
also apply to voodoo, and that voodoo was not a religion. One tiny application 
that is arguably secular – really just a variation on the religious objection – 
does not make a law generally applicable. And in fact, despite considerable 
effort at trial, the state could find no example of a pharmacist with secular 
moral objections to religious contraception. That appears to be an empty set in 
Washington.

The Alito dissent is apparently why the case was held so long and relisted so 
many times. And of course I like the Alito dissent. But I have to say that his 
footnote 6 is utterly shameless in light of his dissent yesterday in Woman’s 
Whole Health.  He says that of course Stormans can bring “a future as-applied 
challenge to the Board’s regulations.” But yesterday, a much less thorough 
litigation of a pre-enforcement challenge was obviously res judicata in a 
post-enforcement challenge based on actual experience. It is hard to see how he 
can have it both ways.

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 Oleske
Sent: Tuesday, June 28, 2016 11:28 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

The bulk of Justice Alito's dissent focuses on the argument Stormans made at 
the beginning of its cert petition in support of summary reversal: the pharmacy 
regulations amount to religious targeting akin to the targeting in Lukumi. 
(Marty notes below the central problem with this argument: the regulations 
actually cover all moral and ethical objections, not just religious objections. 
Thus, the pharmacy owner who has secular ethical objections to carrying drugs 
tested on animals or produced in countries with records of human rights abuses 
is no more entitled to an exemption under the regulations than are the owners 
of Stormans.)

Notwithstanding the dissent's primary focus on the religious-targeting 
argument, there is one section of the dissent (III.B) indicating how the three 
dissenting justices might come down on the broader "selective-exemption" issue 
that has split the circuits: whether, in the absence of a religious targeting, 
the inclusion of one or more secular exemptions in a law triggers a 
constitutional requirement that religious exemptions be made when requested. 
Section III.B. of the dissent indicates that three justices believe the answer 
is "yes" if the religious exemptions would not undermine the state's interest 
in the law more than the existing exemptions.

- Jim


On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman 
> wrote:
This case is very confused, and complicated, as a factual matter, by virtue of 
the interactions of two different Washington regulations--the "Stocking" rule 
and the "Delivery" rule--and the fact that the State has not enforced either 
rule against Storman's or any other religious objector.  For what it's worth, I 
believe Alito's description of the facts--his treatment of the distinct 
operations of, and practices under, the two rules--is incomplete and 
misleading, for reasons I'd be happy to discuss offline.  But that's really 
beside the point now that the Court has denied cert.  (It would have created a 
nightmare of untangling had they granted cert.)

For now, I would just point out the following:  Even on Alito's own account of 
the facts and the Washington regulations, the State does not "uniquely burden 
religiously motivated conduct."  This is the telling passage in his dissent:

While the regulations themselves do not expressly single out religiously 
motivated referrals, the Board’s guidance accompanying the regulations does: 
“The rule,” it warns, “does not allow a pharmacy to refer a patient to 

RE: CRST v. EEOC - reasonable balance or chilling effect on Title VII plaintiffs?

[Laycock, H Douglas (hdl5c)]

The Court held that a defendant is a "prevailing  party," potentially eligible 
for fees, if it prevails either on a ground going to the merits or on some 
other grounds, which here included statute of limitations and the EEOC's 
failure to properly investigate before filing suit.

The Court did not change the standard for determining when a prevailing 
defendant can actually recover fees. Whether it prevails on a merits or 
nonmerits ground, it still must show that the plaintiffs claim was "frivolous, 
unreasonable, or groundless." Justice Thomas would have rejected that rule; he 
did not get a second vote. The separate standard for plaintiffs and defendants 
is unchanged.

Few workers could ever take the risk of filing suit if they were responsible 
for the employer's attorneys' fees whenever they lost.

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


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Thursday, May 19, 2016 8:26 PM
To: Law & Religion issues for Law Academics
Subject: CRST v. EEOC - reasonable balance or chilling effect on Title VII  
plaintiffs?

Today the Court ruled in CRST Van Expedited v. EEOC  (
http://www.supremecourt.gov/opinions/15pdf/14-1375_09m1.pdf ) that
defendants don't have to prevail "on the merits" to get attorney fees
in Title VII cases. In this case, the EEOC had gotten its suit brought
by over 200 women for sexual harassment dismissed by failing to follow
protocol and doing proper investigations, follow administrative
resolution protocols, etc. CRST asked for fees as a "prevailing party"
which the lower court awarded, but the Eighth Circuit reversed saying
there had to be a judgement on the merits.  Today the Supreme Court
reversed and said that prevailing party simply means you have to win.

Until now defendants had to show that plaintiffs cases were frivolous
and completely without merit in order to get fees while plaintiffs
simply had to win some money to get fees paid.

In my humble opinion, this case balances things out and puts
plaintiffs and defendants on an equal footing (i.e. "prevailing
party") although defendants will likely only get reimbursed their fees
if they are sued by the EEOC directly since most Title VIIs aren't
exactly wealthy.  The downside is that the EEOC may be unwilling to
take on most cases itself in the future if there is a likelihood of
losing while businesses will be more willing to fight all the way
knowing that they could recover thus leading to a chilling effect on
the big Title VII EEOC cases.

I'd be interested in your thoughts on the long-term effect on this
decision on future Title VII cases.

Michael Peabody, Esq.
http://www.religiousliberty.tv
___
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: The Charlotte City Ordinance and Religious Freedom

[Laycock, H Douglas (hdl5c)]

The North Carolina legislature also used a club (or maybe a machine gun) 
instead of a scalpel. The new law goes vastly beyond fixing the problem you 
focus on, and vastly beyond shower rooms and bathrooms.

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 Will Esser
Sent: Thursday, March 31, 2016 5:22 PM
To: Paul Finkelman ; Law & Religion issues for Law 
Academics ; Eugene Volokh 
Subject: The Charlotte City Ordinance and Religious Freedom

Paul,

My main point was how truly radical the Charlotte City ordinance was in 
entirely doing away with unisex bathrooms in public accommodations.  (I trust 
you are not taking the position that it is advisable public policy to allow 
non-transgender, straight boys into the girls showers in the YMCA?)  The point 
was that the Charlotte City ordinance was entirely over the top.  People can 
have a healthy debate about whether the NC law should go farther in providing 
allowance for changes to a birth certificate, but that's a very different 
debate than entirely doing away with unisex bathrooms.  The Charlotte City 
Council used a club when they should have tried a scalpel.

To turn this back to religion and the law, let's assume that the Charlotte City 
ordinance had gone into place as drafted (i.e. a non-discrimination provision 
that does not allow discrimination on the basis of sex with no exceptions for 
bathrooms).  The YMCA is defined as a public accommodation under the ordinance 
and it is sued when it refuses to allow boys into the girls' showers.  The YMCA 
argues that it won't let the boys into the girls showers based upon its 
religious principles which flow from the Bible, including a prohibition on 
pre-marital sex and an obligation to protect youth from temptation.

How do listserv members think that comes out?  Isn't this an example in which 
the religious principles of the YMCA should clearly trump the 
non-discrimination provision?  (Again, this is not a fictional hypothetical.  
That is actually the ordinance the Charlotte City Council passed and which 
would have gone into law but for the NC legislature's action).

Will


Will Esser
___
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.

FW: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

Will, you are spouting the slogans of the people you most oppose. The Georgia 
bill was a religious freedom bill. It applied only to religious institutions 
and to people whose religious exercise was substantially burdened. For the 
second group, the government could impose the burden anyway if it had a 
compelling government interest, so it probably wasn’t going to be effective at 
addressing the wedding vendor cases. But it did not authorize discrimination in 
wholly secular contexts and where no one had a religious objection.

The NC bill says nothing about religious conscience or burdens on religion. It 
authorizes discrimination by anyone for any reason, and prevents cities from 
doing anything about it. It is not confined to religious contexts such as 
churches and weddings; it is not confined to protecting religion. It simply 
targets gays.

There are no examples of good legislative solutions to the wedding vendor 
cases, because both sides have been unwilling or unable to compromise. What we 
need are strong public accommodations laws with explicit exemptions for small 
businesses in the wedding industry. A small group of academics (of which I am a 
part) has had draft statutory language for several years. We have no 
legislative takers. The Republicans don’t want to prohibit discrimination 
against gays in any context, however secular, and the Democrats don’t want any 
religious exemptions in any context, however religious, except that they 
generally do concede that the clergy don’t have to officiate at the wedding.

There are examples in other contexts,enacted before this got so polarized. 
State laws prohibiting employment discrimination on the basis of sexual 
orientation all have exemptions, of varying scope, for religious non-profits. 
All the marriage equality legislation in blue states, pre-Obergefell, had 
religious exemptions. There are ways to do this, but we lack the political will 
to break through the polarization.

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

From: Will Esser [mailto:willes...@yahoo.com]
Sent: Tuesday, March 29, 2016 3:20 PM
To: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>; 
Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Paul Finkelman 
<paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>>
Subject: Re: Arizona, Indiana . . . and now Georgia

Doug,

I guess that just leads us to the type of impasse seen in Georgia.  Supporters 
call it a religious freedom bill, and those opposed call it an anti-gay bill 
which permits discrimination.  But we end up still asking the same question 
that has been so well discussed on this list - is there a resolution in which 
religious freedom and individual liberty to be free from unjust discrimination 
can both be protected?  I thought that a carveout on the Charlotte ordinance to 
prevent the wedding photographer / cake baker scenario from playing out in 
North Carolina was a reasonable accommodation that could have gone a long way 
to addressing the concerns on the religious freedom side, but the 
Democratically controlled City Council were not interested in considering any 
such accommodation.

If the NC bill were revised to include sexual orientation in the statewide 
non-discrimination provision, do you have any examples of other states 
non-discrimination statutes that you think do a good job of simultaneously 
protecting the significant religious freedom concerns?  I'd be interested in 
reviewing an example.

Here's hoping that more of the country can engage in the kind of thoughtful 
debate that takes place on this list on these important topics.

Will

Will Esser ---  Charlotte, North Carolina

___
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: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

Reasonable people can disagree about how to solve the bathroom issue. That 
provision is not why I called it an anti-gay bill. But the bill didn’t stop 
there. It also precludes Charlotte from prohibiting any other form of 
discrimination against gays. Gays and lesbians shall not be protected from 
discrimination in public accommodations in any place in North Carolina. Hard to 
describe that as other than an anti-gay bill.

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 Will Esser
Sent: Tuesday, March 29, 2016 2:44 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Paul 
Finkelman <paul.finkel...@yahoo.com>
Subject: Re: Arizona, Indiana . . . and now Georgia

Doug,

With all due respect, I think characterizing the North Carolina bill as an 
"anti-gay law" is inaccurate.  As a Charlotte, NC resident, I've been in the 
thick of this debate for several years now.  The NC Legislature's hand was 
forced by the insistence of the City of Charlotte to pass a local regulation 
which would have allowed men to use women's bathrooms, and vice versa.  There 
was a strong outcry regarding privacy and concern over protecting children from 
individuals who would abuse the regulation, since, among other grounds, there 
would be no realistic way to enforce the ordinance to limit the application of 
the law to those who were truly transgendered.

A significant part of the problem was that the ordinance was local to just the 
City of Charlotte.  Thus, by way of example, other smaller municipalities (such 
as the Town of Matthews also located in Mecklenburg County) would have ended up 
with differing discrimination ordinances.  There was very little discussion or 
opposition to the Charlotte ordinance on the ground that it included sexual 
orientation in the non-discrimination regulation.  (I was involved in 
requesting that the City Attorney include an exemption limited to protecting 
religious objectors from penalties for declining to participate in wedding 
ceremonies they found religiously objectionable, but that request was denied).

The main reason the legislature ended up passing the bill was to override the 
ability of local municipalities like Charlotte to pass their own 
anti-discrimination ordinances, and to simply have a statewide 
anti-discrimination statute.  Of course, it's fair to debate whether the 
legislature should have included sexual orientation in the statewide 
non-discrimination statute that they passed, but that is a very different 
debate than summarily dismissing the statute as an "anti-gay law".  There were 
any number of NC municipalities that had sexual orientation in their 
non-discrimination ordinances for a long time, and the NC Legislature never 
took any steps to override those ordinances when they were passed.  If the 
Charlotte City Council had not included the transgender bathroom provision over 
massive public protest, the NC Legislature would never have felt the need to 
pass a uniform statewide anti-discrimination provision.

(For anyone interested in a helpful FAQ on what the bill does or does not do, 
you can find that here:
Myths vs Facts: What New York Times, Huffington Post and other media outlets 
aren't saying about common-sense privacy law | State of North Carolina: 
Governor Pat 
McCrory<http://governor.nc.gov/press-release/myths-vs-facts-what-new-york-times-huffington-post-and-other-media-outlets-arent>
 )

[cid:image001.jpg@01D189C9.F802A610]

[Text Box:]



Myths vs Facts: What New York Times, Huffington Post and other media outlet...
1. Does the new bill limit or prohibit private sector companies from adopting 
their own nondiscrimination polici...





Will

Will Esser --- Charlotte, North Carolina

____________
From: "Laycock, H Douglas (hdl5c)" 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
To: Paul Finkelman <paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>>; 
Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Tuesday, March 29, 2016 10:29 AM
Subject: RE: Arizona, Indiana . . . and now Georgia

The North Carolina bill is here:

http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf

It is not in any sense a religious freedom bill. None of its provisions are 
tied in any way to religious objections. It prohibits discrimination in public 
accommodations on the basis of race, color, religion, national origin, and 
biological sex, omitting sexual orientation and gender identity, and explicitly 
preempts any local ordinances on discrimination in public accommodations. It 
requires that multiple occupancy bathrooms and changing rooms be des

New order in Zubik

[Laycock, H Douglas (hdl5c)]

The Court wants supplemental briefing on whether the government can make the 
insurance companies do this without requiring any notice or letter from the 
employer.

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


032916zr_3d9g.pdf
Description: 032916zr_3d9g.pdf
___
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: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

The North Carolina bill is here:

http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf

It is not in any sense a religious freedom bill. None of its provisions are 
tied in any way to religious objections. It prohibits discrimination in public 
accommodations on the basis of race, color, religion, national origin, and 
biological sex, omitting sexual orientation and gender identity, and explicitly 
preempts any local ordinances on discrimination in public accommodations. It 
requires that multiple occupancy bathrooms and changing rooms be designated for 
a single biological sex, and requires that all persons use the rooms designated 
for their biological sex, without regard to the sex they identify with. It 
preempts all local ordinances regulating any aspect of compensation of 
employees.

None of these provisions depends in any way on conscientious objection or 
burdens on the exercise of religion. This is an anti-gay law, not a religious 
liberty law. This actually does what people have falsely accused state RFRAs of 
doing -- it prevents the enforcement of local laws on sexual orientation 
discrimination.


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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Finkelman [paul.finkel...@yahoo.com]
Sent: Tuesday, March 29, 2016 12:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Doug:

I defer to your knowledge of RFRA law.   So, tell me if this is wrong:  The 
proposed NC law will make it a crime for a man to use a public men's room even 
if he has full ID as a man; a social security number tied to him as a man, and 
is legally male where he lives; or a woman to use a woman's room.  The cases 
are not "out there" yet because the law has not been implemented.  Other parts 
of the proposed law would allow businesses to refuse to serve people on the 
basis of gender, gender presentation, or sexual preference.

Am I wrong about this reading of the law?

If I am not wrong, then the only issue is whether this law is being passed 
under a RFRA rubric.  If it is then you are right in saying that the cases are 
not there, but clearly the cases can and will be there.

If I am wrong about this, then I defer to your more skilled reading of the 
proposed NC law.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com<redir.aspx?REF=k0qtoOe6OGlwkROQIlu9VEgOyIqTG8sfGbegGVwvLWElsz9U3VfTCAFtYWlsdG86cGF1bC5maW5rZWxtYW5AeWFob28uY29t>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





Call
Send SMS
Call from mobile
Add to Skype
You'll need Skype CreditFree via Skype


________
From: "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Monday, March 28, 2016 8:32 PM
Subject: RE: Arizona, Indiana . . . and now Georgia

The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened.

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 

RE: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

I think he means that 25 and more years ago (which just happens to be 
pre-Smith), it would have been politically unimaginable for government to 
require Catholic or Protestant religious institutions to do things that violate 
some of their core moral teachings. Those conflicts were just emerging; there 
is testimony about them in the RFRA hearings. But the problem was very new, and 
still small.

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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Monday, March 28, 2016 9:10 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

"under pre-Smith jurisprudence, a federal mandate on the topic of contraception 
would not have been dreamed of either"

I don't know what this means.  What does Free Exercise jurisprudence have to do 
with whether Congress requires health insurance plans to include preventive 
services?

On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley 
<mwor...@byulaw.net<redir.aspx?REF=-d2XbVaVEoWeeiUEqB5lUI4_cZSZIhsy2f-ByhNi6S0cL6KPb1fTCAFtYWlsdG86bXdvcmxleUBieXVsYXcubmV0>>
 wrote:
Marty makes a fair point.  But under pre-Smith jurisprudence, a federal mandate 
on the topic of contraception would not have been dreamed of either.


On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman 
<lederman.ma...@gmail.com<redir.aspx?REF=CP35mwZHm2D3dv3orFCDAgp97NtlNUVzNKmPFP_VR_ccL6KPb1fTCAFtYWlsdG86bGVkZXJtYW4ubWFydHlAZ21haWwuY29t>>
 wrote:
As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle) 
amicus brief, I have become convinced that where RFRA(s) went "wrong" is when 
advocates and judges started insisting--mistakenly, in the case of federal 
RFRA--that it is more demanding than the pre-Smith Free Exercise doctrine.  
Under that pre-Smith jurisprudence, the contraception and antidiscrimination 
cases would not be close calls.  And if the Court were to hold (as it should) 
that RFRA does incorporate the pre-Smith jurisprudence, and does not go well 
beyond that law to impose an "exceptionally demanding" test of the government 
(as the Court has suggested in Boerne and HL), then RFRA (and state RFRAs) will 
once again become far more palatable to a much broader coalition.  But of 
course, as Doug notes, if there's no prospect of prevailing in the 
contraception and discrimination cases, then there won't be much impetus for 
new RFRAs on the right.

On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<redir.aspx?REF=EulHGGyaHnZVt4A9Gqg9_YipkGo4_OgwDT7eaqqDW1EcL6KPb1fTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1>>
 wrote:
The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened.

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 
Witness, She needed a bloodless liver transplant. It was available in Omaha. It 
was even cheaper than a Kansas transplant with blood transfusions. But Kansas 
Medicaid doesn't pay for out of state medical care. Neutral and generally 
applicable rule. Kansas argued that the state constitution should be 
interpreted to mean Smith. By the time she won that lawsuit on appeal, her 
medical condition had deteriorate

RE: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened. 

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 
Witness, She needed a bloodless liver transplant. It was available in Omaha. It 
was even cheaper than a Kansas transplant with blood transfusions. But Kansas 
Medicaid doesn't pay for out of state medical care. Neutral and generally 
applicable rule. Kansas argued that the state constitution should be 
interpreted to mean Smith. By the time she won that lawsuit on appeal, her 
medical condition had deteriorated to where she was no longer eligible for a 
transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. 
App. 2011).  

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


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Monday, March 28, 2016 7:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Unfortunately, for many, the entire spectrum of "religious liberty" in
the United States appears to revolve around LGBT rights. That may, in
fact, be the case for religious "majorities" who are not otherwise
adversely affected by facially neutral state laws that infringe upon
their religious practices and who cry "persecution!" at the slightest
provocation.

But going back to the original Smith case where members of a native
American group were denied their unemployment benefits because of
peyote use, the people who could really benefit from state RFRAs
aren't just visible on the surface but are the minorities whose
situations need to be "teased out" from between the social cracks.

Certainly Antonin Scalia, lauded for his "conservative" credentials,
is often forgotten in his role of drafting the Smith decision in the
first place, although now it is the conservatives who are on the
losing end of the latest social/legal developments and who now claim
to be most in need of RFRA's protections. Nor is it lost that the
original proponents of RFRA often came from the left, and as Professor
Brownstein notes, the California RFRA was vetoed by a Republican in
1998.

RFRA exists for religious minorities such as a Sikh teacher in a
public school who wears religious garb as part of who she is, not to
proselytize. It is to protect an Orthodox Jewish person who is forced
by state law to take an exam on Saturday. And yes, it is to protect a
native American who may lose employment benefits because he uses
peyote as part of a religious ritual.

To understand the full value of RFRA, one must look to members of
religious minorities and observe when they are unintentionally
adversely affected by neutral laws. Then an effort must be made to
attempt to to try to accommodate them. These kinds of situations
normally won't make the headlines, but it is at the heart of why RFRA
matters.

Michael Peabody, Esq.
Editor
ReligiousLiberty.TV
http://www.religiousliberty.tv



___
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 

Whelan link

[Laycock, H Douglas (hdl5c)]

Ed says I should have given you a link. Here it is:

 
http://www.nationalreview.com/bench-memos/433121/laycock-retracts-little-sisters?oca7c3QJEi1vSOBr.01


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
___
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: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

Ed Whelan has now put up a post claiming that my exchanges with Eric “retract” 
the BJC brief. With respect, that is absurd.

What motivated the brief, and what is so dangerous to religious liberty, is the 
argument that courts cannot question claims of substantial burden on religion 
and the argument that narrow religious exemptions must inevitably be expanded 
to become all-inclusive religious exemptions. And if petitioners had confidence 
in their claim that the government is requiring them to authorize contraception 
coverage, they would not have had to make these far more dangerous arguments.

ERISA is not my field, and we will see what the Court says. But there is no 
language of authorization in the letter that employers must send the government 
refusing to provide contraception.

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 Kniffin, Eric N.
Sent: Wednesday, March 23, 2016 2:19 AM
To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu>
Subject: RE: Zubik / Little Sisters - testing the scope via a hypothetical

Thanks, Doug. That makes sense.

As to the nuts and bolts of how the accommodation works, I very much disagree 
with your assessment. I think it is pretty plain as a matter of ERISA law that 
the government needs the authorization from the employer to make a TPA deliver 
contraceptives, and that explains why the government is fighting so hard to get 
signatures for this. We explain the underlying law in an amicus brief I 
co-authored 
(http://www.becketfund.org/wp-content/uploads/2016/01/Catholic-Benefits-Association-LSP-Amicus.pdf).
 The brief also shows that the government prevailed below because the circuit 
courts blindly accepted the government’s unsupported (and unsupportable) claim 
that DOL has been delegated the power to unilaterally make TPAs into plan 
administrators and then force them to supply contraceptives independent of the 
employer’s plan.

Back to RFRA, if the accommodation only works if the government can force an 
employer to instruct/authorize its TPA (and I understand you don’t think this 
is so), what is the analysis a court SHOULD use to determine whether there is a 
substantial burden? I agree with you that that would be a substantial burden. I 
would reach this conclusion applying an analysis that looks like the 
petitioners': I'd look to see what is the claimed religious exercise, whether 
it is sincere and religious, and whether the government bringing serious 
pressure on the believer to give it up.

Would you apply a different test to reach that result?  I think that is what 
has me confused by your analysis--I can't figure out what you think the 
substantial burden analysis is supposed to look like when it is done properly.

Eric

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Tuesday, March 22, 2016 3:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Zubik / Little Sisters - testing the scope via a hypothetical

I think their argument that courts simply cannot question any claim that 
religious exercise is substantially burdened would, if adopted by the Court, 
discredit religious liberty claims, however this case should come out under a 
more appropriate analysis. And I think their argument that the exemption for 
churches and their integrated auxiliaries necessarily requires an exemption for 
all religious non-profits would, if accepted, make it far more difficult to 
enact religious exemptions for anybody. Those arguments are dangerous, whatever 
the result in this case.

But on the facts of this case, yes: If the religious non-profits had to 
contract with their insurance companies to provide contraception, that would 
clearly be a substantial burden in my view. If they had to instruct or 
authorize their insurance companies to provide contraception at the insurer’s 
expense, that is a closer case, but I am inclined to view that as a substantial 
burden. But after the regulations were revised in response to the stay orders 
in Little Sisters and Wheaton College, I think that neither of those things is 
going on. And I think that is pretty clear.

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] On Behalf Of Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 5:15 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Zubik / Little Sisters - testing 

PS RE: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

Let me just add that we filed the brief because of the two arguments summarized 
in my first paragraph below. That is where we see a threat to religious liberty 
protections. We would not have filed just to defend the government’s 
interpretation of its regulations. But once we decided to file, we had to take 
a position on the regulations as well. The “we” in this paragraph is not royal; 
it is me and the lawyers at the Baptist Joint Committee.

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

From: Laycock, H Douglas (hdl5c)
Sent: Tuesday, March 22, 2016 5:26 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: Zubik / Little Sisters - testing the scope via a hypothetical

I think their argument that courts simply cannot question any claim that 
religious exercise is substantially burdened would, if adopted by the Court, 
discredit religious liberty claims, however this case should come out under a 
more appropriate analysis. And I think their argument that the exemption for 
churches and their integrated auxiliaries necessarily requires an exemption for 
all religious non-profits would, if accepted, make it far more difficult to 
enact religious exemptions for anybody. Those arguments are dangerous, whatever 
the result in this case.

But on the facts of this case, yes: If the religious non-profits had to 
contract with their insurance companies to provide contraception, that would 
clearly be a substantial burden in my view. If they had to instruct or 
authorize their insurance companies to provide contraception at the insurer’s 
expense, that is a closer case, but I am inclined to view that as a substantial 
burden. But after the regulations were revised in response to the stay orders 
in Little Sisters and Wheaton College, I think that neither of those things is 
going on. And I think that is pretty clear.

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] On Behalf Of Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 5:15 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--That's a helpful clarification.  It seems to me, then, that your position 
that the Little Sisters' claim poses a serious threat to religious liberty is 
based on your view that the government is right, and the Sisters are wrong, 
about whether the government is trying to make them authorize the coverage in 
their plan.  Is that fair?

To me, that's a very important qualification to your analysis. Without it, 
people might read your argument to say that the petitioners' claims are 
dangerous even if the government is really trying to force them to authorize 
coverage.  And from your emails, it now sounds to me like that is not your 
position after all (which, at least to me, is a relief!).

Eric

On Mar 22, 2016, at 2:16 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
No, I do not think that all those people have no burdens. I filed a brief in 
support of Hobby Lobby; they were substantially burdened. They had to pay for, 
and contract for, what they reasonably believed to be abortifacients. That case 
was not about what their employees might do; it was about what Hobby Lobby and 
its owners were required to do.

There is an argument in Zubik about whether the religious employers have to 
authorize their insurance companies to provide separate coverage, but I think 
the government has much the better of that argument. The government authorizes 
the separate coverage.


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] On Behalf Of Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 3:54 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--I understand that's the line you think Congress should have adopted, but 
that seems to be more a conclusion rather than a test.  If the petitioners are 
wrong about the test for what is a substantial burden, does your brief 
articulate the correct test for courts to follow? I didn't see it in there.


The problem with your line, it seems to me, is that loads of religious people 
have religious beliefs about what they ca

RE: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

I think their argument that courts simply cannot question any claim that 
religious exercise is substantially burdened would, if adopted by the Court, 
discredit religious liberty claims, however this case should come out under a 
more appropriate analysis. And I think their argument that the exemption for 
churches and their integrated auxiliaries necessarily requires an exemption for 
all religious non-profits would, if accepted, make it far more difficult to 
enact religious exemptions for anybody. Those arguments are dangerous, whatever 
the result in this case.

But on the facts of this case, yes: If the religious non-profits had to 
contract with their insurance companies to provide contraception, that would 
clearly be a substantial burden in my view. If they had to instruct or 
authorize their insurance companies to provide contraception at the insurer’s 
expense, that is a closer case, but I am inclined to view that as a substantial 
burden. But after the regulations were revised in response to the stay orders 
in Little Sisters and Wheaton College, I think that neither of those things is 
going on. And I think that is pretty clear.

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 Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 5:15 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--That's a helpful clarification.  It seems to me, then, that your position 
that the Little Sisters' claim poses a serious threat to religious liberty is 
based on your view that the government is right, and the Sisters are wrong, 
about whether the government is trying to make them authorize the coverage in 
their plan.  Is that fair?



To me, that's a very important qualification to your analysis. Without it, 
people might read your argument to say that the petitioners' claims are 
dangerous even if the government is really trying to force them to authorize 
coverage.  And from your emails, it now sounds to me like that is not your 
position after all (which, at least to me, is a relief!).


Eric

On Mar 22, 2016, at 2:16 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
No, I do not think that all those people have no burdens. I filed a brief in 
support of Hobby Lobby; they were substantially burdened. They had to pay for, 
and contract for, what they reasonably believed to be abortifacients. That case 
was not about what their employees might do; it was about what Hobby Lobby and 
its owners were required to do.

There is an argument in Zubik about whether the religious employers have to 
authorize their insurance companies to provide separate coverage, but I think 
the government has much the better of that argument. The government authorizes 
the separate coverage.


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] On Behalf Of Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 3:54 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--I understand that's the line you think Congress should have adopted, but 
that seems to be more a conclusion rather than a test.  If the petitioners are 
wrong about the test for what is a substantial burden, does your brief 
articulate the correct test for courts to follow? I didn't see it in there.



The problem with your line, it seems to me, is that loads of religious people 
have religious beliefs about what they can or cannot help others to do, even if 
someone might characterize the other as at "arm's length."  Mr. Thomas thought 
he couldn't help make tank turrets, even though he wasn't going to shoot the 
tank's guns or send it onto the battlefield.  Many people would not sign a 
death warrant, even though others will perform the execution separately.  
Religious universities probably (hopefully!) object to allowing for a cable 
television package that includes pornography to be provided to their 
dormitories.  All of those in some way involve people who object to taking the 
action required of THEM (making turrets, signing a piece of paper, contracting 
with a cable company) because of what someone else will do based on their 
authorization.



Do you think all of those people have no substantial burden if forced to take 
those actions by large fines?



Eric


On Mar 22, 2016, at 11:08 AM, Laycock, H Douglas 

RE: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

No, I do not think that all those people have no burdens. I filed a brief in 
support of Hobby Lobby; they were substantially burdened. They had to pay for, 
and contract for, what they reasonably believed to be abortifacients. That case 
was not about what their employees might do; it was about what Hobby Lobby and 
its owners were required to do.

There is an argument in Zubik about whether the religious employers have to 
authorize their insurance companies to provide separate coverage, but I think 
the government has much the better of that argument. The government authorizes 
the separate coverage.


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 Kniffin, Eric N.
Sent: Tuesday, March 22, 2016 3:54 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--I understand that's the line you think Congress should have adopted, but 
that seems to be more a conclusion rather than a test.  If the petitioners are 
wrong about the test for what is a substantial burden, does your brief 
articulate the correct test for courts to follow? I didn't see it in there.


The problem with your line, it seems to me, is that loads of religious people 
have religious beliefs about what they can or cannot help others to do, even if 
someone might characterize the other as at "arm's length."  Mr. Thomas thought 
he couldn't help make tank turrets, even though he wasn't going to shoot the 
tank's guns or send it onto the battlefield.  Many people would not sign a 
death warrant, even though others will perform the execution separately.  
Religious universities probably (hopefully!) object to allowing for a cable 
television package that includes pornography to be provided to their 
dormitories.  All of those in some way involve people who object to taking the 
action required of THEM (making turrets, signing a piece of paper, contracting 
with a cable company) because of what someone else will do based on their 
authorization.


Do you think all of those people have no substantial burden if forced to take 
those actions by large fines?


Eric


On Mar 22, 2016, at 11:08 AM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Cases such as those Chip describes probe far too deeply into what the religious 
claimant believes. And they are not the only ones. Congress tried to address 
such cases in the RLUIPA amendments to RFRA, specifying that a religious 
practice need not be compulsory or central to be protected. The brief that the 
Baptist Joint Committee and I filed emphasizes the error of these cases, the 
danger of overly intrusive inquiries, and the need for substantial deference to 
religious understandings of what is burdensome.

But we say that such deference cannot be absolute, that it never has been 
absolute, and that if it were absolute, absurd results would follow. But 
absolute deference is what both sets of petitioners ask for. They say the 
courts can examine sincerity, and they can examine the magnitude of the penalty 
for non-compliance, but then the substantial burden inquiry is over. Courts 
cannot examine the substantiality of the burden on religion, apart from the 
penalties.

And as Marty suggested in a separate post, our brief explicitly proposes a 
bright-line test: "Religious objectors are not entitled to exemptions for 
secular entities they deal with at arm's length, or to control the government's 
regulation of such entities."

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] On Behalf Of Ira Lupu
Sent: Tuesday, March 22, 2016 12:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- 
Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones 
(Colorado); Wares v. Simmons (Kansas), 
https://casetext.com/case/wares-v-simmons-2.  Ware involved rabbinical 
testimony that certain books, desired by a prisoner, were non-essential to the 
Jewish faith.
Pre-1997 RFRA cases from prisons were thick with decisions involving the 
question of religious burdensomeness (prison officials do not want to have to 
meet the compelling interest test, even a prison-adjusted one, every time a 
prisoner asserts the religious significance of a forbidden practice.) I cite a 
number

RE: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

Cases such as those Chip describes probe far too deeply into what the religious 
claimant believes. And they are not the only ones. Congress tried to address 
such cases in the RLUIPA amendments to RFRA, specifying that a religious 
practice need not be compulsory or central to be protected. The brief that the 
Baptist Joint Committee and I filed emphasizes the error of these cases, the 
danger of overly intrusive inquiries, and the need for substantial deference to 
religious understandings of what is burdensome.

But we say that such deference cannot be absolute, that it never has been 
absolute, and that if it were absolute, absurd results would follow. But 
absolute deference is what both sets of petitioners ask for. They say the 
courts can examine sincerity, and they can examine the magnitude of the penalty 
for non-compliance, but then the substantial burden inquiry is over. Courts 
cannot examine the substantiality of the burden on religion, apart from the 
penalties.

And as Marty suggested in a separate post, our brief explicitly proposes a 
bright-line test: “Religious objectors are not entitled to exemptions for 
secular entities they deal with at arm’s length, or to control the government’s 
regulation of such entities.”

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 22, 2016 12:40 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- 
Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones 
(Colorado); Wares v. Simmons (Kansas), 
https://casetext.com/case/wares-v-simmons-2.  Ware involved rabbinical 
testimony that certain books, desired by a prisoner, were non-essential to the 
Jewish faith.
Pre-1997 RFRA cases from prisons were thick with decisions involving the 
question of religious burdensomeness (prison officials do not want to have to 
meet the compelling interest test, even a prison-adjusted one, every time a 
prisoner asserts the religious significance of a forbidden practice.) I cite a 
number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998).
RLUIPA land use cases involve questions of the religious impact of not being 
able to expand a church, add a wing for a church school, or build a parking lot.
And do you deny that Yoder invites inquiry into the religious significance or 
religious impact of a challenged policy?  That is the only "burden" inquiry in 
Yoder.
Please keep in mind that I find all of this deeply troublesome.  But RFRA 
invites it. (Thomas v. Review Board says courts cannot second guess a 
claimant's reading of Scripture. But that does not mean courts cannot question 
the religious significance of the actions forbidden or required.)

On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. 
> wrote:
Ira, I don't understand the distinction I think you are trying to make. We 
agree that sounds like a court must accept the sincere testimony of a Muslim 
prisoner who claims his faith requires him to keep a half inch beard. But you 
believe the court may instead decide that being forced to shave is, contrary to 
the prisoner's testimony, actually not that big of a deal? What cases have been 
decided on this basis?

Eric


___
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: Zubik / Little Sisters - testing the scope via a hypothetical

[Laycock, H Douglas (hdl5c)]

Some of these extreme cases will involve compelling government interests, 
including most of Paul's hypotheticals. But courts could not question the claim 
of substantial burden on religion, according to the Zubik petitioners.

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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Monday, March 21, 2016 9:27 PM
To: Law & Religion issues for Law Academics; Paul Finkelman
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical


I am asserting this only insofar as the degree of accommodation is considered 
insufficient by the individual hypothetical Adventist.  (Which is highly 
hypothetical as the vast majority gladly accept the EEOC accommodation.)

An ideal hypothetical would simply involve a federal regulation that 
unintentionally infringes on religion (in the slightest degree possible) but 
where the religious person invokes RFRA as interpreted by a pro-Zubik Supreme 
Court ruling where the religious party has the full discretion to determine 
whether the government has properly accommodated their beliefs.  In other 
words, RFRA on steroids.

The more I think of it, the more I wonder if this set of ACA cases would 
actually go as far as to address the Kim Davis accommodation scenario in which 
a county clerk sending same-sex couples to another county to get wedding 
certificates was considered the most reasonable accommodation by her attorneys. 
(As indicated in briefs, etc.) In the Davis scenario we don't have the Title 
VII issue of reasonableness, only RFRA to contend with.

On Mar 21, 2016 4:52 PM, "Paul Finkelman" 
>
 wrote:
Dear Michael:

I just want to make sure I understand your hypothetical, which is:
that this person cannot only refuse to work on Friday afternoon, but because of 
her religious beliefs, she can prevent anyone from working after sundown on 
Friday because that means she would be complicit in a sinful act by allowing 
someone who is not an Adventist, to work on Saturday.  Taken to its logical 
position an Adventist who is a supervisor in the post office would be stop all 
Saturday mail service, shut down the post office, etc. because this would be 
participation in sin.  The same would be true, I suppose, for the fire 
department, the EMT services, the hospital, etc.  And for that matter, not just 
the gift shop, but, if the Adventist was the chief ranger, the whole national 
park would be shut down on Saturday.

Is this what you are asserting in your hypothetical, or am I missing something?


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





Call
Send SMS
Call from mobile
Add to Skype
You'll need Skype CreditFree via Skype



From: Michael Peabody 
>
To: 
religionlaw@lists.ucla.edu
Sent: Monday, March 21, 2016 4:35 PM
Subject: Zubik / Little Sisters - testing the scope via a hypothetical

The Supreme Court will be hearing these cases on Wednesday and I'm
trying to figure out how broadly this may affect religious
accommodation beyond the ACA cases. Most of the briefs in favor of the
petitioners describe broad sweeping "attacks" on religious freedom
while the respondents seem to argue that the built-in accommodation
should be considered sufficient.

In an effort to try to explain this to non-lawyers (of which many are
Seventh-day Adventists) who are asking me about what this case means,
I've come up with a hypothetical that I'm
presently testing out.  In making this hypothetical, I make an
assumption that RFRA was originally intended to protect individuals
(not institutions) to avoid the post-Hobby Lobby reaction that it is
now about organizations and I am relying on a federal regulation model
to avoid jurisdictional confusion.  I do realize that my hypothetical
involves an employer-employee relationship, but I tried to manage this
angle by making the closing time a function of a bill passed by
Congress than an employee scheduling issue.

Here is the hypothetical:

A Seventh-day Adventist is a federal 

RE: landlord/tenant law and RFRA

[Laycock, H Douglas (hdl5c)]

McCready v, Hoffius was vacated on rehearing and remanded for further 
consideration of the compelling interest issue.

But I agree with Marty on the general trend. For-profit entities have not won 
exemptions from discrimination laws under the RFRA standard. Most of them 
should not win; for the few situations in which they should, specific 
exemptions are needed to provide any protection that is at all likely to work.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Thursday, February 04, 2016 8:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: landlord/tenant law and RFRA

Roberta:  This would almost certainly be exclusively a question of state law, 
wherever it arises (if it ever does).  There first would have to be a state or 
local ordinance prohibiting such discrimination; and then also a state RFRA, or 
a state constitutional free exercise provision that has been construed to be 
more restrictive than the federal FEC in Smith.  If and when a state has both 
of these sorts of state laws, and if any landlord invokes a RFRA exemption, I 
expect, based largely upon past practice, that most or all state courts would 
reject the landlords' claims.  But, of course, there might be some state 
judiciaries that go the other way, especially if the Supreme Court in Zubik 
applies RFRA's "compelling interest"/"least restrictive means" test much more 
stringently than it has construed that "test" since 1963.

Here's a quick string-cite that I recently threw together on the earlier 
landlord cases [if I missed any, please let me know]:

Landlords brought several such claims seeking religious exemptions that would 
permit them to disregard state and local laws prohibiting discrimination 
against unmarried tenants in non-owner-occupied units.  The courts typically 
rejected these claims.  See, e.g., Smith v. Fair Emp't & Hous. Comm'n, 913 P.2d 
909 (Cal. 1996) (federal RFRA); Swanner v. Anchorage Equal Rights Comm'n, 874 
P.2d 274 (Alaska 1994) (state free exercise clause); McCready v. Hoffius, 586 
N.W.2d 723, 729 (Mich. 1998) (state free exercise clause); Jasniowski v. 
Rushing, 678 N.E.2d 743, 748-51 (Ill. App. Ct. 1997) (federal RFRA).  In one 
such case, however, two judges on the U.S. Court of Appeals for the Ninth 
Circuit would have recognized an exemption if the merits of a so-called Smith 
"hybrid" claim were reached, see Thomas v. Anchorage Equal Rights Comm'n, 165 
F.3d 692 (9th Cir. 1999) (majority opinion of O’Scannlain, J., joined by 
Farris, J.), vacated on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc); 
and in another case, Justice Thomas hinted that he, too, was sympathetic to 
such claims under RFRA, see Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 
979 (1994) (Thomas, J., dissenting from denial of petition for writ of 
certiorari).  See also Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) 
(reversing summary judgment in favor of landlords and remanding for further 
hearing on state’s compelling interest under state constitutional provision).


On Thu, Feb 4, 2016 at 7:59 AM, Kwall, Roberta 
>
 wrote:
Dear colleagues-

I am working on the next edition of my property casebook and am writing to get 
some input on an issue that comes up in connection with the chapter on a 
landlord's ability to refuse occupancy by a tenant.  Although the FHA prohibits 
discrimination based on "familial status," whether a landlord can refuse 
occupancy based on marital status is governed by the states.  Courts have gone 
both ways on whether a landlord can refuse an unmarried heterosexual the 
ability to rent based on religious belief. Regarding gay couples, even before 
Obergefell, some state statutes prohibited discrimination based on civil unions 
status, domestic partnerships, gender identity, etc.

I know this this group has discussed related issues post Obergefell but I was 
wondering specifically whether anyone can speak to whether current or pending 
state RFRA Acts might be used to allow a landlord who opposed gay marriage to 
refuse to lease to a married gay couple.  I would like to include something 
brief on this in the book.

Thank you!
Bobbi



Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  

RE: landlord/tenant law and RFRA

[Laycock, H Douglas (hdl5c)]

Thanks Eugene; I had forgotten some of those cases.

For whatever reason, the litigation shifted from landlords to wedding vendors. 
And the wedding vendors have all lost, although most of those cases are still 
pending on appeal. I was reacting as much to the current hostility to such 
claims as to the track record from the 90s, when the landlord cases were being 
litigated.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, February 04, 2016 1:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA

Wasn’t Jasniowski also vacated, there by the state supreme 
court, 174 Ill. 2d 563 (1997) (“In the exercise of this Court's supervisory 
authority, the Appellate Court, First District, is directed to vacate the 
judgment entered in 287 Ill.App.3d 655, 222 Ill.Dec. 871, 678 N.E.2d 743 
(1997), to vacate the judgment entered by the circuit court in case No. 
94-CH-5546 (December 22, 1994), and to set aside the order entered by the 
Chicago Commission on Human Relations in case No. 92-H-127 (May 18, 1994).”)?  
Also, State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990), came out in favor 
of the landlord.

So, as I count it, landlords won in Illinois, Michigan, and 
Minnesota (though in Illinois and Michigan the court opinions were quite 
opaque).  In Massachusetts, the court seemed to say that the landlords could 
win if it appeared that “the rental housing policies of people such as the 
defendants can be accommodated, at least in the [local] area, without 
significantly impeding the availability of rental housing for people who are 
cohabiting or wish to cohabit.”  The landlords lost in Alaska under strict 
scrutiny.  And in Smith, the court split 3-3 in applying strict scrutiny, 
though the swing vote (Justice Mosk) concluded that the landlords should lose 
because RFRA violated the separation of powers.

I don’t quite see, then, an anti-claimant general trend in the 
marital status discrimination in housing cases.  Rather, it seems like a pretty 
mixed bag, on balance slightly in favor of the landlord claimants, though far 
from uniformly so.  Or am I missing something?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Thursday, February 04, 2016 9:29 AM
To: Law & Religion issues for Law Academics
Subject: RE: landlord/tenant law and RFRA

McCready v, Hoffius was vacated on rehearing and remanded for further 
consideration of the compelling interest issue.

But I agree with Marty on the general trend. For-profit entities have not won 
exemptions from discrimination laws under the RFRA standard. Most of them 
should not win; for the few situations in which they should, specific 
exemptions are needed to provide any protection that is at all likely to work.

From: 
religionlaw-boun...@lists.ucla.edu<redir.aspx?REF=0kHekX3XxiVvGgHALoix3toIKyWGhklW6O4mpoeOhzGFRd5zkC3TCAFtYWlsdG86cmVsaWdpb25sYXctYm91bmNlc0BsaXN0cy51Y2xhLmVkdQ..>
 [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Thursday, February 04, 2016 8:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: landlord/tenant law and RFRA
Roberta:  This would almost certainly be exclusively a question of state law, 
wherever it arises (if it ever does).  There first would have to be a state or 
local ordinance prohibiting such discrimination; and then also a state RFRA, or 
a state constitutional free exercise provision that has been construed to be 
more restrictive than the federal FEC in Smith.  If and when a state has both 
of these sorts of state laws, and if any landlord invokes a RFRA exemption, I 
expect, based largely upon past practice, that most or all state courts would 
reject the landlords' claims.  But, of course, there might be some state 
judiciaries that go the other way, especially if the Supreme Court in Zubik 
applies RFRA's "compelling interest"/"least restrictive means" test much more 
stringently than it has construed that "test" since 1963.

Here's a quick string-cite that I recently threw together on the earlier 
landlord cases [if I missed any, please let me know]:

Landlords brought several such claims seeking religious exemptions that would 
permit them to disregard state and local laws prohibiting discrimination 
against unmarried tenants in non-owner-occupied units.  The courts typically 
rejected these claims.  See, e.g., Smith v. Fair Emp't & Hous. Comm'n, 913 P.2d 
909 (Cal. 1996) (federal RFRA); Swanner v. Anchorage Equal Rights Comm'n, 874 
P.2d 274 (Alaska 1994) (state free exercise clause); McCready v. Hoffius, 586 
N.W.2d 723, 729 (Mich. 1998) (state free exercise cla

RE: Texas Cheerleaders display Bible Verses on banners

[Laycock, H Douglas (hdl5c)]

The opinion is here. There are also two concurring opinions that for some 
reason would not open.

http://www.txcourts.gov/media/1284936/140453.pdf

The merits appear not to have been litigated or decided. The court says the 
“only issue” is voluntary cessation. It looks like the school district was the 
only defendant and that it did not defend its attempt to stop the banners.

So it is hard to imagine any reason why a plaintiff with standing would be 
precluded from filing an Establishment Clause claim. Not only is there no claim 
or issue preclusion; there is not even a precedent.


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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 30, 2016 12:37 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Texas Cheerleaders display Bible Verses on banners

Following up -- This case was litigated in the state courts.  Once the 
cheerleader religious banners start flying at football games next fall (or 
basketball games right now), are there any doctrines of preclusion that would 
stop Freedom from Religion Foundation or others from litigating the 
Establishment Clause claim, against these public school districts, in the 
federal courts?  In light of Santa Fe School District v. Doe, the claim looks 
awfully strong to me.  Perhaps it would be difficult to find a plaintiff, even 
a Jane Doe plaintiff, because of fear of reprisals. But the situation seems 
constitutionally repulsive to me, and it's very sad if fear chases away all the 
potential plaintiffs.

On Sat, Jan 30, 2016 at 12:15 PM, Ira Lupu 
> wrote:
Steve Jamar is absolutely right, and the Texas Supreme Court is quite wrong.  
Cheers uttered, and banners carried, by cheerleaders during a public high 
school football game are school sponsored speech. Does anyone on the list think 
the First Amendment would bar the school from ordering cheerleaders not to 
carry a sign that said "Feel the Bern -- beat Austin HS!"?  The school is 
responsible for the content of these banners, and a school sponsored banner 
that reads "“I can do all things through Christ, who strengthens me,” as one of 
them did, is a violation of the Establishment Clause.

On Sat, Jan 30, 2016 at 11:42 AM, Steven Jamar 
> wrote:
Seems to me there is an establishment problem here.  Cheerleaders are sponsored 
by the school and are displaying religious messages to a captive audience who 
could choose to forego attending the game or else putting up with the religious 
banners.

Has the free speech approach become so dominant that stopping such displays 
becomes content-based discrimination and avoiding establishing religion doesn’t 
meet strict scrutiny as a reason to infringe on such speech?

https://www.washingtonpost.com/national/texas-top-court-sides-with-cheerleaders-in-bible-banner-suit/2016/01/29/0939bbce-c6b7-11e5-b933-31c93021392a_story.html
--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

Two quotes from Louis Armstrong:
"You blows who you is."
"If ya ain't got it in ya, ya can't blow it out."


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



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

RE: Excluding religious institutions from public safety benefits

[Laycock, H Douglas (hdl5c)]

I am juggling multiple deadlines and will not be responding to responses to 
this post or participating in a continuing debate. But the principle of neutral 
government incentives can largely reconcile recognizing the church’s right to  
funds in cases like Trinity Lutheran with its right to regulatory exemptions 
for religious practice.

First, the issue in the founders’ time was whether government could or should 
provide special funding – funding not available to secular activities – for the 
religious activities of churches. The answer was no, and that remains settled. 
None of the current disputes involve that question.

The modern question is whether government can provide neutral funding on 
nondiscriminatory criteria for secular services – education in secular 
subjects, health care, social services of various kinds – delivered in a 
religious environment by a religious institution. Money has the same value to 
everyone, so the only way to maintain religiously neutral incentives, with 
government neither encouraging nor discouraging individuals or organizations to 
become more or less religious, is to fund everybody or nobody – or to choose on 
objective and religiously neutral criteria. I agree with Marty that subjective 
criteria open the door to discrimination.

If government says it will fund secular services in a religious environment but 
not a secular environment, or vice versa, it powerfully encourages providers to 
qualify for the funding by making themselves more or less religious as 
government demands. Organizations that are fully committed one way or the other 
cannot switch and will suffer the resulting discrimination. But organizations 
near the line can make themselves more or less religious in order to qualify, 
and we see examples of this in the reported cases.

The same analysis applies to tax exemption for religious and secular 
non-profits.

The same analysis applies to regulatory exemptions when religious practice 
aligns with secular self interest. If a religious objection to tax on secular 
income – salaries, investment income, etc. – entitled the objector to a tax 
exemption, the anti-tax religion would draw millions of real or feigned 
adherents. But that is not the typical exemption case. Most religious practices 
are meaningless apart from the religious belief that gives them meaning, and 
many are personally burdensome from a secular perspective. Unlike money, the 
exemption does not have the same value for everyone.

Making a religious practice illegal, threatening practitioners with jail, 
fines, or loss of civil benefits, powerfully discourages that religious 
practice. But exempting the religious practice from regulation generally does 
not encourage others to adopt it. If I have no desire to practice someone 
else’s religion, that fact that an exemption means I could do so without 
penalty does not create any desire to practice that other person’s religion.

Of course there are line drawing issues around each of these points, but they 
are broadly applicable. Penalizing religion discourages it; exempting it from 
regulation generally does not encourage it. Funding secular providers but not 
religious providers discourages religion; funding them equally generally does 
not encourage it.

This also helps explain why religious and secular private speech should receive 
equal treatment, and why government speech should not take positions on 
religious questions, either promoting or attacking religious answers to those 
questions. Government silence is as close to neutral as we can come.

I first set out these propositions in Religious Liberty as Liberty, 7 J. 
Contemp. Legal Issues 349-52 (1996). I elaborate them more discursively in 
Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51 (2007).

And as Texas lawyers are still prone to saying at the end of affidavits:  
Further deponent sayeth not.



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 Marty Lederman
Sent: Monday, January 18, 2016 9:23 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits

Mark, this is certainly true, and important:

"The Remonstrance was written at a time when states did not provide extensive 
benefits to most people or at least was not omnipresence in all aspects of 
their lives.  Not a penny shall go to a church is a lot harder to figure out 
when lots of government pennies go to lots of different things."

And that's why almost everyone -- including on this list -- would not have much 
trouble with religious organizations receiving entitlements that are available 
to everyone, with police and fire protection being the canonical example.  The 
difficulties, however, are (at least)