RE: FW from Chip Lupu: Elane Photography
I'd appreciate an explanation of why the house photography case is harder if the refusal to photograph rests on a religious objection (for example, that one's religious beliefs require that one not facilitate the economic flourishing of gays). Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 12/17/2009 3:40 PM To: 'Law Religion issues for Law Academics' Subject: RE: FW from Chip Lupu: Elane Photography If a photographer refused to photograph a bar mitzvah because he disapproved of its religious content, he should be free not to create such expression - and not be forced to pay for the exercise of this First Amendment right. If the photographer refused to photograph something simply because of the identity of the commissioning people, and not because of the content of the work that would be created (e.g., a photographer refused to photograph a lesbian's house because the client is a lesbian), then we might have a potentially tougher question; I'm not sure. But that's not this case, because here Elaine Huguenin stressed that her objection was to the content of the ceremony that she is being compelled to photograph, and not just to the identity of the payer. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, December 17, 2009 12:35 PM To: Law Religion issues for Law Academics Subject: Re: FW from Chip Lupu: Elane Photography What if it were not a wedding ceremony (legally recognized or not)? But a Valentine's Day party or a New Year's Eve Party that the gay couple wanted memorialized? Or the couple's child's birthday party or bar mitzva? Could the photographer then refuse? On what grounds? This is pure status discrimination. Is that allowed for freedom of conscience reasons? Or freedom from compelled speech (implied endorsement of the subject of the photographs) grounds? Is this any different from a gay wedding ceremony? Is pay to not play an appropriate accommodation of the claimed 1st amend rights? Steve On Thu, Dec 17, 2009 at 3:22 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: -Original Message- From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edumailto:icl...@law.gwu.edu] Sent: Thursday, December 17, 2009 12:19 PM To: Volokh, Eugene Subject: Elane Photography Eugene: I'm at a computer from which I cannot post to the list. But here's one question about your compelling interest argument re: New Mexico RFRA -- What difference does it make that NM does not legally recognize same-sex marriage? The claim here is about the refusal of a commercial photographer to perform her offered professional service at a ceremony. It happens to be a wedding ceremony, but its legal significance (or absence of legal significance) has absolutely nothing to do with the claim. The state protects gays and lesbians against discrimination in private markets for goods and services, and this claim arises in one of those markets. Chip Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Conflicts between religious exefcise and gay rights
In connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony
RE: Sorry, wrong link to the homeschooling case
Mightn't this be an ordinary sincerity case? Mark Tushnet William Nelson Cromwell Professor of Law 223 Areeda Hall Harvard Law School Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, March 05, 2008 3:49 PM To: Law Religion issues for Law Academics Subject: Sorry, wrong link to the homeschooling case It should be http://www.courtinfo.ca.gov/opinions/documents/B192878.DOC Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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: IIED and vagueness
If the actual spatial relation between the location of the activity and those who are offended by it matters, it might be helpful for people to look at a map of Walter Reed Hospital, where the Code Pink demonstratins occurred, and compare the location to that in the funeral case. (The Code Pink demonstratinos occurred, as I recall, at the Georgia Avenue entrance to the Walter Reed grounds, and if so, they occurred at a location rather far removed from any building in which resturned soldiers stayed as a regular matter; the entrance is a bit closer to some outbuildings on the grounds, the functions of which I am ignorant.) Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) From: [EMAIL PROTECTED] on behalf of Esenberg, Richard Sent: Fri 11/2/2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof
Re: Christian Skating Time
This is a puzzlement about the whole thread, not David's posting. How -- legally -- is the skating rink's position different from one that featured a Celebrate Being White night (or, to give a precise parallel in advertising, a White Night at the Rink), advertising that there'd be music from identifiably white performers and no rap or hip-hop (which I in my ignorance will assume are roughly correlated with non-white performers, Eminem to the contrary notwithstanding)? Is the thought that the proprietor in that case would indeed have just as strong a constitutional claim (a right of expressive association claim, I would think) as the proprietor here? Or that the state's interest in addressing perceived racial discrimination is demonstrably greater than its interest in addressing perceived religious discrimination (on the assumption, which seems correct, that in neither case would non-Christians or non-whites respectively be denied entry were they to show up)? If the latter, what's the warrant for a court's displacement of the legislative judgment that both forms of perceived discrimination are worth legal response? (Or, if you don't like the legislative judgment in that sentence, substitute a version that invokes Chevron-like deference to legal interpretations proferred by administrative agencies.) -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting David Cruz [EMAIL PROTECTED]: On Mon, 3 Jul 2006, Paul Finkelman wrote: [snip] The other difference, of course, is that one IS religious and the other is not. It was not Catholic night at the ball park and I bet there were few priests bringing their sunday school class in for Polish Catholic night. If Paul's point is that religious sense's (or realities) of exclusion are different from non-religious ones, that's contestable. Legally, however, exclusion based on Polishness could well be ancestry or national origin discrimination prohibited by some publica accommodations laws. In California, in order to make their Mother's Day promotions survive state public accommodations law, baseball stadia have taken to noting in fine print that the frilly pink Mother's Day tote would be available to the first X number of patrons not just mothers. And one of the ACLU state affiliates argued that a business owner had a First Amendment right to put of a clearly exclusionary message as long as he did not actually discriminate on that basis. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 ___ 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: Christian Skating Time
Let me express my doubts about this assertion -- No one would doubt that a Christian music concert could be held (and advertised) -- where the presenter is a for-profit business. (A genuine question: How do for-profit concert promoters advertise concerts by Christian rock groups?) -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting Scarberry, Mark [EMAIL PROTECTED]: The music is a substantial part of the skating experience. No one would doubt that a Christian music concert could be held (and advertised). Does the combination of a physical activity (skating) with the playing of music deprive the business owner of the free speech rights that a concert promoter would have? Suppose the owner of the rink decided to have a global warming evening featuring the audio from Vice President Gore's movie. Would that be permitted, even though a lot of people would choose not to come to the rink in order to avoid what they would perceive as propaganda? If it would be permitted, then doesn't the NY law discriminate against religious speech? And if, as I think someone suggested, a spiritual evening would be permitted, so long as it was inclusive by not focusing on any particular religious tradition, then isn't this a matter of viewpoint discrimination? Mark S. Scarberry Pepperdine University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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: Christian Skating Time
This isn't an area of my speciality, but it seems to me that, simply as a matter of positive law, the relevant decided cases -- that is, the decided cases dealing more or less directly with the asserted conflict between free speech and antidiscrimination law -- weigh strongly against Eugene's assertion. (After all, he's written quite a few articles pointing out how wrong the lower courts are.) Maybe the law should be as Eugene describes it -- although on that see below -- but it's not at all clear to me that it is that. (And, as a jurisprudential matter, it seems to me, one ought to take decided cases into account, along with general principles of course, in figuring out what the law is and what it should be. The common lawyer in me thinks that judges with responsibility for deciding actual cases might develop principles more attuned to the problems they see before them than they -- or we -- would by reflecting on First Amendment generalities. Common lawyers, as Louis Henkin put it, draw lines all the time -- principled lines -- informed by the particulars of the cases before them without degenerating into making ad hoc rulings on the basis of those particulars.) And, on a more normative note, I would think that a position, which seems to me Eugene's, that Lester Maddox had a valid First Amendment right to refuse service to African Americans at his restaurant (because the law requiring him to provide such service would place a substantial burden, and for viewpoint related reasons, on his right to express his deeply held racist views by means of expressive conduct) says something very bad about the state of the First Amendment law as Eugene would construct it. -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting Volokh, Eugene [EMAIL PROTECTED]: Well, if Mark is right, doesn't that say something very bad about the current state of First Amendment law? Given that for-profit speakers and speech presenters are fully protected by the First Amendment (see, e.g, the New York Times, CNN, etc.), isn't it quite clear that for-profit presentations of Christian music, racist music (whether white or black racist), anti-gay music, anti-fundamentalist-Christian music, anti-Catholic music, or whatever else should be entirely constitutionally protected, at least under current Supreme Court precedents? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet Sent: Monday, July 03, 2006 11:37 AM To: Law Religion issues for Law Academics; Scarberry, Mark Cc: Law Religion issues for Law Academics Subject: RE: Christian Skating Time Let me express my doubts about this assertion -- No one would doubt that a Christian music concert could be held (and advertised) -- where the presenter is a for-profit business. (A genuine question: How do for-profit concert promoters advertise concerts by Christian rock groups?) -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting Scarberry, Mark [EMAIL PROTECTED]: The music is a substantial part of the skating experience. No one would doubt that a Christian music concert could be held (and advertised). Does the combination of a physical activity (skating) with the playing of music deprive the business owner of the free speech rights that a concert promoter would have? Suppose the owner of the rink decided to have a global warming evening featuring the audio from Vice President Gore's movie. Would that be permitted, even though a lot of people would choose not to come to the rink in order to avoid what they would perceive as propaganda? If it would be permitted, then doesn't the NY law discriminate against religious speech? And if, as I think someone suggested, a spiritual evening would be permitted, so long as it was inclusive by not focusing on any particular religious tradition, then isn't this a matter of viewpoint discrimination? Mark S. Scarberry Pepperdine University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
Re: RE: RE: Taxpayer Standing
Just an oops from me, and a lesson to us all -- when you're away from home and your materials, be very cautious about what you write (even if you've waited, as I did, to see if anyone responds to an initial inquiry)! But at least the initial question now appears to have been answered. - Original Message - From: [EMAIL PROTECTED] Date: Friday, May 5, 2006 9:13 pm Subject: RE: RE: Taxpayer Standing Doug: Do you think that the Spending Clause/Property Clause distinction (Flast v. Valley Forge), articluated in Kendrick, *makes any constitutional sense*? Moreover, although Mark may have been wrong about the specific facts of Mitchell, he's right that the Court has recognized *state* taxpayer standing in *many* Establishment Clause cases (see, e.g., those enumerated in note 5 of Grand Rapids v. Ball), and in suggesting that there's no justification for treating state and federal taxpayers differently *for purposes of Article 3 standing.* Indeed, in light of the fact that the Court has recognized taxpayer standing in countless EC cases through the years, with nary a problem of absence-of-adversariness, case-or-controversy, concreteness of argument, etc., doesn't this demonstrate that Valley Forge may be wrong, and, more broadly, that the underlying doctrine disfavoring taxpayer standing to raise claims of unconstitutional conduct is misguided and serves little or no valid constitutional function? -- Original message -- From: Douglas Laycock [EMAIL PROTECTED] But it was federal money and a suit in federal court. I have not read the district court opinion or the sources of this standard answer, but I don't think state taxpayer standing would suffice. Isn't this on the spending clause side of the line because the government spent actual money, even though the schools received only property? Valley Forge involved surplus property that the government had long owned, not property it had just acquired for cash. Indeed, I would not be surprised to learn that the feds never owned the equipment in Mitchell even for a moment -- that the feds gave cash to the state education agency, and that it bought the equipment. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Mark Tushnet Sent: Friday, May 05, 2006 6:04 AM To: Law Religion issues for Law Academics Subject: Re: RE: Taxpayer Standing The standard answer on taxpayer standing in Mitchell is that the criteria differ for state taxpayer standing and federal taxpayer standing. The distinction goes back a long way, although I doubt that it has ever been rationalized well. Content-Type: multipart/alternative; boundary=_cf6ba300-6cc9-4fbe-9346-86e4bf77537c_ --_cf6ba300-6cc9-4fbe-9346-86e4bf77537c_ ___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Use of Religion to Achieve Secular Ends
Coming late to this thread, and noting that the discussion has gone off in a different direction, I'd simply reinforce Marty's observation that the view that 'religious transformation [and] faith' are good (when freely embraced) is a theological proposition, by noting that it's perfectly coherent (theologically) to accept the proposition that religious transformation and faith are good even when embraced as a result of coercion (though of course there may be evidentiary concerns in particular instances of whether the faith is indeed embraced in the theologically relevant sense after coercion). - Original Message - From: [EMAIL PROTECTED] Date: Friday, May 5, 2006 9:30 pm Subject: Use of Religion to Achieve Secular Ends The other day I posted about the unconstitutionality of the BOP religious-rehabilitation funding program. See http://balkin.blogspot.com/2006/04/blatantly-unconstitutional- federal.html. FYI, the Freedom from Religion Foundation has now sued to challenge the program: http://ffrf.org/legal/gonzales_complaint.html Rob Vischer and Rick Garnett have each posted thoughtful questions about my assertion that the state's interest in promoting religious transformation is an illegitimate (and troubling) governmental objective. Vischer: http://www.mirrorofjustice.com/mirrorofjustice/2006/05/government_fund.html Garnett: http://prawfsblawg.blogs.com/prawfsblawg/2006/05/religion_in_pri_1.html Rick writes, for example, the following: I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's secular ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be profoundly disturbing -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that religious transformation [and] faith are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.) Also, Marty writes, [t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. Does this mean, I wonder, that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom? To which I have posted a response that includes the following. (I'd very much appreciate reactions on, especially, the fourth and final point): 1. You ask whether my critique means that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom? No, it doesn't *entirely* mean that. One of the principal objectives of the religion clauses themselves is to encourage or require the government to act so as to eliminate *government- created obstacles* to the flourishing of religious faith and freedom. So, for example, I favor -- and have worked to enact and defend -- certain religious accommodation statutes, such as RFRA and RLUIPA. However, although the state may advance the view that religious *freedom* (including the freedom to reject religion) is a good thing in and of itself, it may not advance the view that religious *faith* is a positive good in and of itself -- or that it's the means to valuable secular ends. 2. The government is simply not capable of determining whether religious transformation [and] faith are a good thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.) And so it surely follows that government may not discriminate in favor of religion in the dispersal of funds on the basis of such judgments concerning the value of faith. 3. I think it's also troubling, and unconstitutional, for the state to conclude that religious transformation or faith is correlated with secular objectives that the state *is* entitled to promote, such as civic behavior, rehabilitation, cessation of alcohol dependence, etc. For one thing -- and this isn't a constitutional point -- as far as I can tell, it's simply not true: If anything, human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct. More to the
Re: RE: Taxpayer Standing
The standard answer on taxpayer standing in Mitchell is that the criteria differ for state taxpayer standing and federal taxpayer standing. The distinction goes back a long way, although I doubt that it has ever been rationalized well. Content-Type: multipart/alternative; boundary=_cf6ba300-6cc9-4fbe-9346-86e4bf77537c_ --_cf6ba300-6cc9-4fbe-9346-86e4bf77537c_ Content-Type: text/plain; charset=Windows-1252 Content-Transfer-Encoding: quoted-printable Now is a good time to ask a question that has bothered me for awhile: Why _= was_ there taxpayer standing in Mitchell v. Helms? I'm not talking about t= he executive/congressional distinction. I just don't know why this didn't = fall under Valley Forge rather than Flast -- the case was about property af= ter all, not funds. And, even worse for claims of taxpayer standing, the s= chools didn't even get to hold on to the property -- the state retained tit= le at all times. It may just be that I'm missing something obvious, but I = just don't see how this gets out from under Valley Forge. =20 From: [EMAIL PROTECTED]: [EMAIL PROTECTED]: Thu, 4 = May 2006 08:14:13 -0400Subject: Taxpayer Standing As many of you know, the Seventh Circuit denied the petition for rehearing = en banc in FFRF v. Chao yesterday: http://www.ca7.uscourts.gov/tmp/SM0EVXT= 9.pdf. =20 Many of the judges expressly urge the Supreme Court to hear the case in ord= er to bring some sense to its taxpayer standing jurisprudence, which Easter= brook calls arbitrary: comprehensiveness and rationality are not this d= octrine=92s hallmarks. =20 I'd advise anyone who cares about Establishment Clause doctrine -- from any= perspective -- to start boning up on standing doctrine, and to begin prepa= ring arguments to make to the SCOTUS if it should grant cert. in this case.= If the Court were, for example, to limit Flast significantly, I think tha= t could have a dramatic impact on the Executive branch's willingness to pus= h the envelope (witness the BOP prison case that I posted about last week: = In any challenge to it, the U.S. is much more likely to win on standing th= an on the merits.). =20 I have very little knowledge of the intracacies of Flast and Valley Forge, = etc. But one thing about yesterday's opinions did stand out: The dissente= rs argue that whereas there is taxpayer standing to challenge congressional= expenditures, there is no standing to challenge religion-based funding dec= isions made by the Executive branch. That can't be right, can it? If it w= ere, then the as applied challenges in cases such as Bowen v. Kendrick (o= n remand) and Mitchell v. Helms should have been dismissed on standing grou= nds. But the Court indicated that those sorts of challenges were permissib= le. =20 One other note: A reminder that the Posner distinctions in his opinion for= the panel in the FFRF v. Chao case make little sense substantively, in my = view. This is what I posted back in January: =20 A divided panel of the U.S. Court of Appeals for the Seventh Circuit issued= a somewhat interesting opinion today affirming taxpayer standing for a FFR= F suit challenging conferences organized by the Administration's Centers fo= r Community and Faith-Based Initiatives: =20 http://www.ca7.uscourts.gov/tmp/PJ17J3CP.pdf =20 I must confess that the intracacies of the taxpayer standing doctrine make = my eyes glaze over, and my head hurt; but for those of you who are interest= ed in such things, the opinions appear to be a treasure trove . . .=20 =20 I have a question, however, about an incidental discussion in Posner's majo= rity opinion about the merits of the EC claim: =20 FFRF alleges that CFBI Conferences are designed to promote religious commu= nity organizations over secular ones. In other words, the complaint appar= ently is not about CFBI social-service funding decisions, but about the con= ferences themselves, and the allegation that at such conferences the CFBI C= enters promote religious organizations over nonreligious organizations. = Here's the curious passage in the Posner opinion: The complaint=97all we have to go on at this stage=97is wordy, vague, and i= n places frivolous, as where it insinuates that the President is violating = the establishment clause by =93tout[ing] the allegedly unique capacity of f= aith-based organizations to provide effective social services=94=97 as if t= he President were not entitled to express his opinion about such organizati= ons. But the complaint is not entirely frivolous, for it portrays the confe= rences organized by the various Centers as propaganda vehicles for religion= , and should this be proved one could not dismiss the possibility that the = defendants are violating the establishment clause, because it has been inte= rpreted to require that the government be neutral between religion and irre= ligion as well as between sects. What distinction is Posner trying to draw here? If a presidentially create= d program holds
Re: St. Paul City Office Boots Easter Bunny
I can't tell from the news story whether the bunny was part of the secretary's personal space or whether it was in a space concededly under the control of the city council, although the story suggests the latter (it appears that the city council president directed that the bunny be removed, not that she directed the secretary to remove the bunny). But, if the latter, it seems to me that the legal issue here is simple: The city council has no obligation to display anything at all, and [subject to Pico- like questions about motivation, here of anti-religious animus] removing something out of concern, perhaps ill-founded or over- sensitive, about causing offense would not seem to raise any serious legal question. - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] Date: Tuesday, March 28, 2006 1:23 am Subject: St. Paul City Office Boots Easter Bunny The AP reports, http://www.beliefnet.com/story/188/ story_18830_1.html: A small Easter display was removed from the City Hall lobby on Wednesday out of concern that it would offend non-Christians. The display -- a cloth Easter bunny, pastel-colored eggs and a sign with the words 'Happy Easter' -- was put up by a City Council secretary.They were not purchased with city money. Tyrone Terrill, the city's human rights director, asked that the decorations be removed. Terrill said no citizen had complained to him In 2001, red poinsettias were briefly banned from a holiday display [in City Hall] because they were associated with Christmas. I should mention that Human Rights Director Terrill also filed a complaint against the St. Paul Press newspaper claiming that a raciallythemed cartoon created a hostile public accommodations environment, but eventually dropped it as a result of public pressure. See Charge of Discrimination, Terrill v. Saint Paul Pioneer Press, case no. A-3497 (St. Paul Dep't of Hum. Rts. docketed June 7, 1999); Charles Laszewski,Human Rights Complaint Against Newspaper Appears to Be a First, ST. PAUL PIONEER PRESS, June 11, 1999, at 4D; Charles Laszewski, Terrill Says He Will Drop Newspaper Bias Charge, ST. PAUL PIONEER PRESS, June 23, 1999,at 6B. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Sabbatarians and deadlines
This isn't the kind of thing I think about a lot, but I wonder what (if any) assumptions are made -- in the question anjd by the hypothesized state institution -- about the category Sabbatarians. I think the usual definition is those who obserfve their holy day on Saturday, and if that's right, what does the state do about or assume about those who observe their holy day on Sunday? Or is it that the category really isn't Sabbatarians but those whose religious beliefs require that they abstain from certain activities, a category that encompasses the activities at issue here, on their holy day whenever it occurs? - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] Date: Friday, March 24, 2006 7:57 pm Subject: Sabbatarians and deadlines Thinking about some of our UCLA Law School assignments, especially ones that have relatively short deadlines, led me to ask this: Do public universities in states with accommodation regimes (under RFRA or under Sherbert/Yoder-based state Free Exercise Clause rules) have an obligation to extend some deadlines for Sabbatarians? The law review competition, for instance, starts Thursday afternoon and ends Wednesday afternoon; it's generally believed that many students really do need all six days to do a good job. Say the competition was conducted by school (which it isn't, but say it was). Sabbatarians would have only five days on which they could do the competition, but others have six; would the school have an obligation to give Sabbatarians an extra day? What if this were a 72-hour take home exam, given Friday morning and due Monday morning? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Research question
Thanks. Marc Stern wrote: Mark: I would add something about gay rights and probably something about prayer-even Cvhritisn prayer in public spaces including public schools. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Mark Tushnet Sent: Tuesday, March 07, 2006 9:27 AM To: Law Religion issues for Law; Law Religion issues for Law Academics Subject: "Research" question I'm writing something in which I try to describe (in as neutral a way as I can) the litigation goals likely to be sought in the foreseeable (mid-range) future by (and here it's hard to offer a neutral characterization, but) what I describe as the politically mobilized Christian evangelical movement. Here's my list. Additions and amendments (not all of which I'll accept, of course) welcome: Few of the issues of interest to the politically mobilized Christian evangelical movement are off the wall, [1] and a fair number are close to acceptance already. (1) Obviously, the overruling of Roe v. Wade, but not . . . the adoption of a constitutional requirement that abortion be lawful only under quite restricted conditions. (2) Acknowledgment by government of the (essential) role of Christianity in the creation of the United States , and in embedding basic values in American political culture. (3) Extension of public support for faith-based institutions, including religiously affiliated schools, whether through vouchers or direct grants. (4) Protection from the application of anti-discrimination laws to those whose decisions, otherwise covered by such laws, rest on religious grounds. (5) A cluster of issues related to the teaching of the Darwinian theory of evolution in public schools: (a) Establishing the proposition that it is constitutionally permissible to characterize that theory as a mere theory; (b) allowing public schools to teach alternatives to Darwinian theory even though those alternatives can be characterized as religious; (c) requiring public schools to reach such alternatives. (6) Again, a cluster of issues aimed at eliminating some regulations imposed on religiously affiliated schools. The only one I can think of is the possibility that governments could issue declarations that the United States is a Christian nation, and it is not clear to me that there is any real (as distinct from rhetorical) interest in the movement in seeing that legislatures adopt such declarations. -- Mark Tushnet GeorgetownUniversity Law Center 600 New Jersey Ave. NW Washington , DC 20001 202-662-9106 (voice) 202-662-9497 (fax) ___ 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. -- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax) ___ 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.
Research question
I'm writing something in which I try to describe (in as neutral a way as I can) the litigation goals likely to be sought in the foreseeable (mid-range) future by (and here it's hard to offer a neutral characterization, but) what I describe as the politically mobilized Christian evangelical movement. Here's my list. Additions and amendments (not all of which I'll accept, of course) welcome: Few of the issues of interest to the politically mobilized Christian evangelical movement are off the wall,[1] and a fair number are close to acceptance already. (1) Obviously, the overruling of Roe v. Wade, but not . . . the adoption of a constitutional requirement that abortion be lawful only under quite restricted conditions. (2) Acknowledgment by government of the (essential) role of Christianity in the creation of the United States, and in embedding basic values in American political culture. (3) Extension of public support for faith-based institutions, including religiously affiliated schools, whether through vouchers or direct grants. (4) Protection from the application of anti-discrimination laws to those whose decisions, otherwise covered by such laws, rest on religious grounds. (5) A cluster of issues related to the teaching of the Darwinian theory of evolution in public schools: (a) Establishing the proposition that it is constitutionally permissible to characterize that theory as a mere theory; (b) allowing public schools to teach alternatives to Darwinian theory even though those alternatives can be characterized as religious; (c) requiring public schools to reach such alternatives. (6) Again, a cluster of issues aimed at eliminating some regulations imposed on religiously affiliated schools. [1] The only one I can think of is the possibility that governments could issue declarations that the United States is a Christian nation, and it is not clear to me that there is any real (as distinct from rhetorical) interest in the movement in seeing that legislatures adopt such declarations. -- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax) ___ 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: Research question
A couple of questions: First, about this: "the primary litigation goal of Christian conservativesis the defense of traditional marriage, to uphold the idea that marriage is a relationship between one man and one woman, and that no substitutes for marriage should be recognized." Does this mean that the litigation goal is to establish that a statutory recognition of same-sex marriage is unconstitutional, or only that it is not constitutionally required? Second, why isn't school choice encompassed within my (3)? Certainly the Colorado Christian University case fits within it. Rick Duncan wrote: Mark: I am pretty closely connected to most of the religious liberty public interest lawyers and litigation, and I don't know what to think of your list. It doesn't sound like what I hear my friends talking about. First, I think right now the primary litigation goal of Christian conservativesis the defense of traditional marriage, to uphold the idea that marriage is a relationship between one man and one woman, and that no substitutes for marriage should be recognized. In other words, they wish to defend the line between tolerance and celebration of alternative lifestyles. Second, I think the idea of school choice is becoming more and more important to Christian conservatives. Cases like the Colorado Christian University case, in which college scholarships can be used to attendnon-pervasively sectarian, but not pervasively sectarian colleges, must be won, and Locke v. Davey needs to be reversed in! time. Long term it would be wonderful to see the Court hold that religious neutrality requires states to offer school choice to parents to enable them to protect theirchildren from being held as part of a captive audience for governmental inculcation. Third, free exercise must be protected under the First Amendment (Smith is a great threat to religious liberty and must be reversed or its exceptions must be given full force). Fourth, I think I would describe the I.D. issue as one involving greater local control over school boards. Curriculum decisions should be made in the local political process, not by a body of unelected lawyers sitting in judgment concerning people's "purposes." Of course, if weget school choice, all this matters a lot less. Fifth, Christian conservatives continue to be the leading defenders of free speech today, whether it bein Sweden in the Ake Gree! n case,in public schools defending equal access, in Locke v. Daveychallenging viewpoint discrimination in scholarships, in law schools defending the right of the CLS to meet on campus,or in front of abortion clinics defending speech in traditional public fora. I don't think anyone really wants a "Christian Nation" decision. I think my friends simply want religious speech--not just Christian speech but religious speech more generally--to be respected in the public square. In other words, public schools and local governmentsshould be as free to recognize religious holidays and symbols as they are to celebrate Earth Day, MLK Day, or Gay Pride Month. Indeed, a coercion test (as opposed to an endorsement test) under the EC would probably satisfy most Christian conservatives. If no one's liberty is substantially burdened by a Ten Commandments display or a Nativity Scene in a public park or school, there ! is no reason for courts to intervene under the EC. All dissenters need do is avert the eye. Just as the Christian must avert the eye if he is offended by a Gay Pride display, the secularist can avert the eye if he is bothered by a Ten Commandments display. Indeed, Justice Thomas' idea that the EC is incorporated only to the extent that it protects a liberty interest would be just about right. Only when someone's liberty interest under the EC is substantially burdened should federal courts intervene aginst state and local government under the incorporated EC. I hope this helps a little. I would be happy to discuss these matters with you. Rick Duncan Mark Tushnet [EMAIL PROTECTED] wrote: I'm writing something in which I try to describe (in as neut! ral a way as I can) the litigation goals likely to be sought in the foreseeable (mid-range) future by (and here it's hard to offer a neutral characterization, but) what I describe as the politically mobilized Christian evangelical movement. Here's my list. Additions and amendments (not all of which I'll accept, of course) welcome: Few of the issues of interest to the politically mobilized Christian evangelical movement are off the wall,[1]!--[endif]-- and a fair number are close to acceptan! ce already. (1) Obviously, the overruling of Roe v. Wade, but not . . . the adoption of a constitutional requirement that abortion be lawful only under quite restricted conditions. (2) Acknowledgment by government of the (essential) role of Christianity in the creation of the United States , and in embedding basi
Breaking news in federal RFRA case
the Court ruled unanimously that the government may not ban a religious from using a herbal tea that contains a substance that the government considers to be harmful. The Chief Justice wrote the opinion. Only new Justice Samuel A. Alito, Jr., did not take part. -- from SCOTUS Blog -- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax) ___ 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.
Silent Night controversy
I have no idea what the truth of the matter is, but here's a different account of what happened in connection with the Silent Night episode on which there was a post earlier today: http://thinkprogress.org/2005/12/14/silent-night-fraud begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: RE: The Holiday That Dare Not Speak Its Name
The following is not directed at any particular participant in this thread, but those who have been on this list for more than a year know that this thread repeats one from last year (and, although memory fades, probably the year before that, and the year before that ...). I wonder if those who have participated in those discussions could ask themselves, Am I about to post something that I've said before, or do I have something new to say? [Some of the posts have been genuinely new, in my judgment, but many have not been.] Otherwise, our e- mailboxes fill up rapidly, without much pay-off for being a list member. - Original Message - From: Will Linden [EMAIL PROTECTED] Date: Monday, November 28, 2005 8:24 pm Subject: RE: The Holiday That Dare Not Speak Its Name At 02:37 PM 11/28/05 -0800, you wrote: As for being offended by having someone wish me a Merry Christmas. I don't get offended. But like most people, I appreciate being positivelyacknowledged for who I am and what I believe. I don't experience that when people tell me Merry Christmas. And what gives you the impression that believing Christians experience being positively acknowledged by being told Merry Christmas by people we doubt have any appreciation of its true significance, and probably repeat empty syllables as a matter of rote? You might as well consider Godblessyou at a sneeze as a positive acknowledgement of religious convictions. (And yes, there are atheists who at least claim to be offended by THAT.) ___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Stephen Carter on what Christians should expect from the Supreme Court
Having now read the article, I think it appropriate to quote what in my view is the deepest insight I've ever heard about religion and the Constitution (an insight not inconsistent, I think, with Carter's perspective). It's from the late John Howard Yoder, the Amish theologian, and -- I think I have the words almost exactly -- it is: It's not the Christian's job to solve Satan's problems. Content-Type: multipart/alternative; boundary==_alternative 005FCD49862570AC_= --=_alternative 005FCD49862570AC_= Content-Type: text/plain; charset=US-ASCII An excellent article, in my opinion, one that those on both the right and the left would do well to consider. http://www.christianitytoday.com/ct/2005/011/18.96.html Brad --=_alternative 005FCD49862570AC_= Content-Type: text/html; charset=US-ASCII brfont size=2 face=sans-serifAn excellent article, in my opinion, one that those on both the right and the left would do well to consider./font br brfont size=2 face=sans-serifhttp://www.christianitytoday.com/ct/2005/011/18.96.html/font br brfont size=2 face=sans-serifBrad/font --=_alternative 005FCD49862570AC_=-- ___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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 lawsuit against U Cal Berkeley
I wonder whether this analysis can be reconciled (even on the level of quite plausible) with Lynch and Pinette, and the reasonable-observer-who-knows-a-fair-amount-of-the-context, etc., test for endorsement. Or, is the test for endorsement more stringent when the view endorsed is secularist as against religious? Volokh, Eugene wrote: My apologies to Ed Brayton, whose earlier posts I regrettably failed to properly grasp; I quite erroneously focused solely on the NCSEWeb site, to which the Berkeley site links, and failed to focus -- as he correctly points out we should focus -- on the context. Nonetheless, it seems to me that even if we include the context, there is still a viable (as I've said before, hardly open-and-shut, but quite plausible) endorsement objection. Here's the material from the Berkeley site: Misconception: Evolution and religion are incompatible. Response: Religion and science (evolution) are very different things. In science, only natural causes are used to explain natural phenomena, while religion deals with beliefs that are beyond the natural world. The misconception that one always has to choose between science and religion is incorrect. Of course, some religious beliefs explicitly contradict science (e.g., the belief that the world and all life on it was created in six literal days); however, most religious groups have no conflict with the theory of evolution or other scientific findings. In fact, many religious people, including theologians, feel that a deeper understanding of nature actually enriches their faith. Moreover, in the scientific community there are thousands of scientists who are devoutly religious and also accept evolution. For concise statements from many religious organizations regarding evolution, see Voices for Evolution on the NCSE Web site [linking to the site on which various groups opine on the proper interpretation of Christianity and Judaism, and conclude that this proper interpretation is consistent with evolution]. It is indeed factually true that the view that one always has to choose between science and religion is incorrect -- most claims that include the word always are incorrect. Nonetheless, it seems to me that in context a reasonable person could quite properly read these paragraphs as not just demographic reports on religious attitudes but as endorsement of one particular interpretation of Christianity and Judaism. Note how the one provided example of a religious belief that contradicts evolution is six-literal-day Creationism, an example that I'm pretty sure most readers would see as a negative one. Nothing is said of what I understand to be the much larger groups who disagree with evolution on religious grounds but don't believe the world was created in six literal days. The rest of the paragraphs is devoted to what I suspect most reasonable readers would see as positive descriptions of those religious groups that do see their religions as consistent with evolution; and then there is a link that seems pretty clearly an endorsement -- not just an objective well, here's what some people say with no positive connotation -- of those religious beliefs. There can surely be objective discussions of religious views on evolution, which aren't likely to be seen as an endorsement of some such views, and aren't likely to be intended as an endorsement of some such views. But this doesn't seem to be it. Finally, imagine a Web page maintained by a government-run institution, and aimed at supporting some curriculum that teaches students to oppose euthanasia (a view that of course public schools are constitutionally free to teach, though I'm not sure that many indeed to teach it; this page says: Of course, some religious beliefs explicitly tolerate euthanasia (e.g., the belief that there's nothing wrong with killing); however, most religious groups do not support euthanasia. In fact, many religious people, including theologians, feel that supporting a culture of life actually enriches their faith. Moreover, in the medical community there are thousands of doctors who are devoutly religious and also reject euthanasia. For concise statements from many religious organizations regarding euthanasia, see Voices for Life on the VFL Web site [linking to a site on which various groups opine on the proper interpretation of Christianity and Judaism, and conclude that this proper interpretation rejects euthanasia]. Is this an endorsement of a particular set of religious beliefs (beliefs that Christianity and Judaism, as rightly interpreted, reject euthanasia), or just a non-endorsing objective summary of facts about religious belief? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages
New lawsuit against U Cal Berkeley
Any thoughts on this: http://insidehighered.com/news/2005/10/18/evolution . It's a report of a lawsuit filed against U Cal Berkeley for maintaining a web-site designed for high school teachers seeking information on evolution (the site is http://evolution.berkeley.edu/ ). The complaint apparently alleges that including a link on the web-site to a compilation of statements by religious groups and leaders to the effect that evolution is not incompatible with religious belief violates the Establishment Clause. The compilation was assembled by the National Center for Science Education, and is available at http://www.ncseweb.org/resources/articles/7445_statements_from_religious_org_12_19_2002.asp#top. The link from the Berkeley web-site reads: What statements do different religious groups make on evolution? The National Center for Science Education has collected statements from many different denominations and groups. Read it here http://www.ncseweb.org/resources/articles/7445_statements_from_religious_org_12_19_2002.asp ___ 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 lawsuit against U Cal Berkeley
Ed Brayton's post raises what I thought was the most interesting question raised by the lawsuit: Can the inclusion of one link (to what might be a non-neutral site) produce an Establishment Clause violation -- when the complaint does not (apparently) identify (according to the report) anything else in the U Cal's web pages that makes reference to religion? Put another way, why isn't this just Lynch v. Donnelly? - Original Message - From: Ed Brayton [EMAIL PROTECTED] Date: Tuesday, October 18, 2005 6:59 pm Subject: Re: New lawsuit against U Cal Berkeley Volokh, Eugene wrote: Hmm -- when I read that page, I see lots of quotes that endorse the point of view that evolution and religious belief are compatible.I see none that take any other position or point of view on the subject. Nor do I see any quotes that fit in the some reject it camp; all seemto be of the some accept it camp. What am I missing here? Am I reading the wrong page? Depends on what you mean by that page. If you mean the NCSE page, all of those statements are from denominations that accept evolution. But that is the only point of that page, to support the descriptive and true statement that some religious groups accept evolution and do not see them as in conflict. The Berkeley page states explicitly, in the text that I copied earlier, that there are some religious positions, such as belief in a young earth, that are incompatible with the findings of science and with evolutionary theory. Then it goes on to say that not all religious groups take that position, and many of them take positions that are compatible and makes reference to an outside resource (the NCSE page) to support that descriptive statement. Ed Brayton -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.344 / Virus Database: 267.12.2/140 - Release Date: 10/18/ 05___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: RE: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
Simply on the predictive issue: (1) Does the Ninth Circuit have a related cases rule, and (2) if so, would the appeal of this decision fall within the rule? - Original Message - From: Scarberry, Mark [EMAIL PROTECTED] Date: Wednesday, September 14, 2005 11:12 pm Subject: RE: New Pledge of Allegiance Case, and precential effect of NinthCir cuit's earlier Newdow decision Let me recommend Howard Bashman's post on the precedent issue at How Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm 9/14/05 post.) He presents arguments for the following conclusion: In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after being reversed by the U.S. Supreme Court, requires the U.S. District Court for the Eastern District of California to hold that recitation of the Pledge in public schools is unconstitutional, today's ruling is really, reallywrong. Mark Scarberry Pepperdine -Original Message- From: Brad Pardee To: Law Religion issues for Law Academics Sent: 9/14/2005 8:00 PM Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge wanted to do the right thing as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, muchless a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judgerequires enough moral courage to do what your job requires of you,regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position to accurately understand his motivations based on thequoted section of the opinion, so I will look forward to reading andlearning from what I read here from the learned assemblage. Brad - Original Message - From: [EMAIL PROTECTED] ') [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu ') religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge wanted to do the right thing,I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree withhim that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally rightthing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing. However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons prettywell. Art Spitzer ATT59383.txt ___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: U.S. Denies Asylum for Persecuted Chinese Christian
Or, it had better halt the proceeding that it (at the very least) continued after the initial determination favorable to Mr. Li, and resisted on Mr. Li's appeal to the Fifth Circuit. Brad M Pardee wrote: If the present administration expects to be seen as an advocate for religious freedom, it had better intervene on behalf of Mr. Li. This story is from Christianity Today. Brad U.S. Denies Asylum for Persecuted Chinese Christian Court believes Christian's story, says China has the right to maintain social order. by Boaz Herzog | posted 09/06/2005 09:30 a.m. For more than five years, Xiaodong Li and about half a dozen friends gathered weekly in their hometown of Ningbo, China, to study the Bible and sing hymns. Then one Sunday morning in April 1995, in the middle of one of the services inside Li's apartment, three cops stormed in, handcuffed Li, and escorted him to the local police station. The officers grabbed his hair and kicked his legs, forcing him to kneel. They hit and shocked him with an electronic black baton until he confessed two hours later to organizing an underground church. Later, they locked him inside a windowless, humid cell with six other inmates until his friend and uncle bailed him out five days later. After his release, police forced him to clean public toilets 40 hours a week without pay. He lost his job as a hotel spokesman. Li, 22 at the time, likely faced two years in prison. A court hearing was set for later that year. Li began plotting an escape. He applied for a visa. Unaware of Li's looming trial, a government agency issued him a passport. And on November 4, 1995, Li left the country. Two months later, a Carnival Cruise Lines ship docked in Miami. Li, a food server on board, walked off and never returned. He moved to Houston, hoping to go back to his homeland when China's government eased religious restrictions. Instead, conditions worsened. His friend was imprisoned for participating in their underground church. And police interrogated Li's family, who still live in China, after receiving Bibles, religious magazines, and newspapers that Li had sent them. In 1999, Li applied for asylum on the grounds that the Chinese government had persecuted him for his religious beliefs. He missed the application deadline, but an immigration judge agreed with his arguments, granting him a status that allowed him to remain in the United States until conditions in China improved. But in 2003, the Board of Immigration Appeals reversed the judge's decision. It ruled that Li was punished for violating laws on unregistered churches that it said China has a legitimate right to enforce. Li, the board concluded, feared legal action or prosecution, not persecution. In August, a three-judge panel of the federal Fifth Circuit Court of Appeals affirmed the board's ruling. The decision has alarmed refugee and religious-freedom advocates. They say the ruling, unless overturned, will make it much more difficult for future asylum-seekers to prove religious persecution. The appeals court decision "sends a chilling message that the United States is beginning to turn its back on people fleeing religious persecution," said Dori Dinsmore, the former advocacy director for World Relief, an international organization that assists refugees. Last year, U.S. immigration courts completed about 65,000 applications for asylum. Of those cases, about 20 percent of the applicants were granted asylum, the plurality of which came from China. Asylum allows refugees to work in the United States and later apply for permanent residence. To gain asylum, applicants must prove they are refugees escaping persecution because of their nationality, membership in a particular social group, political opinion, race, or religion. "Ultimately," Dinsmore told CT, the Fifth Circuit's ruling means that many more asylum applicants "will be deported back into the hands of the people persecuting them." The ruling has broad implications for worshipers across the globe. Ann Buwalda, founder and executive director of human-rights group Jubilee Campaign USA, told CT that adherents of other faiths could soon be denied U.S. asylum because some of their religious practices are considered illegal in their homelands. For example, she pointed to persecuted practitioners of Falun Gong exercises in China, and Muslims who convert to Christianity in Iran. "Essentially," Buwalda said of the Fifth Circuit ruling, "you've removed religion as a basis of gaining asylum." Chris Bentley, a spokesman for the U.S. Citizenship and Immigration Services bureau, declined to comment on the impact Li's case could have on other asylum applicants. The agency is "reviewing the judges' decision, and then we'll take appropriate actions," Bentley said. Li's Houston-based attorney, Garrett White, said his client, now 32, plans to appeal, both to the full ring of Fifth Circuit
Re: UC system sued
I thank Allen for the links to the UC guide, and find particularly helpful the unapproved courses link -- http://pathstat1.ucop.edu/ servlet/StoneGround?templateName=course_descriptions/ nonapproved -- and especially the descriptions of the criminal justice and forensic research courses. Content-Type: multipart/alternative; boundary=-1125253014 ---1125253014 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit In a message dated 8/27/2005 10:11:26 PM Pacific Standard Time, [EMAIL PROTECTED] writes: As to inventing irrelevant hypotheticals, you are simply being bombastic in the hopes, I suppose, of dodging the very real and very obvious other sorts of judgments that can be justified just as equally. This is a list related to the discussion of law and religion. It is mainly populated by professors of the subject. Professors of the subject love to reason by analogy. If you think that the hypotheticals are irrelevant, you might offer some basis for saying so. I chose them because I think that they help point the way to one possible problem with the innately stupid choice made by the UC system: bias. And if you think that pedagogical value of courses is determined by employment of universally adopted approaches (the evolutionary presumption among soft sciences), how will you go about deciding the pedagogical values question in those non-ID courses, in the English literature, history, and civics courses? Underneath some of my rhetoric there is a hard edge because I know that we begin simply by adopting rules we think fairly supported by our role as guardian of public institutions. It is only later that we begin issuing bits of cloth to targeted populations to insure that our exclusion of them from public life is uniformly observed. Jim Henderson Senior Counsel ACLJ To me, this lawsuit revolves around two factual questions that, at this point, do not merit overheated rhetoric about issuing bits of cloth to targeted populations. According to _the news story I read_ (http://www.signonsandiego.com/news/education/20050827--1n27school.html) , the Calvary Chapel Christian School of Murrieta is teaching classes with titles like: Christianity's Influence on American History, Christianity and Morality in American Literature, and Special Providence: American Government. The two factual questions are: 1. Do these courses meet the _objective criteria_ (http://pathstat1.ucop.edu/servlet/StoneGround?templateName=course_descriptions/subjectapproved) of the UC system's _a-g subject matter requirements;_ (http://pathstat1.ucop.edu/ag/a-g/a-g_reqs.html) and 2. Has the UC system selectively enforced these requirements against the plaintiffs while letting similar narrowly focused courses pass. If the answer to either factual question is yes, UC should lose. But, according to _the news story I read_ (http://www.signonsandiego.com/news/education/20050827--1n27school.html) , both these factual questions are in dispute. It looks to me like these factual questions can be resolved by litigation long before anyone need worry about issuing bits of cloth to targeted populations. Allen Asch ---1125253014 Content-Type: text/html; charset=US-ASCII Content-Transfer-Encoding: quoted-printable !DOCTYPE HTML PUBLIC -//W3C//DTD HTML 4.0 Transitional//EN HTMLHEAD META http-equiv=3DContent-Type content=3Dtext/html; charset=3DUS-ASCII META content=3DMSHTML 6.00.2900.2722 name=3DGENERATOR/HEAD BODY id=3Drole_body style=3DFONT-SIZE: 10pt; COLOR: #00; FONT-FAMILY:=20= Arial=20 bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7FONT id=3Drol= e_document=20 face=3DArial color=3D#00 size=3D2 DIV DIVIn a message dated 8/27/2005 10:11:26 PM Pacific Standard Time,=20 [EMAIL PROTECTED] writes:/DIV BLOCKQUOTE=20 style=3DPADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px solid= FONT=20 style=3DBACKGROUND-COLOR: transparent face=3DArial color=3D#00 size= =3D2 DIVAs to inventing irrelevant hypotheticals, you are simply being=20 bombastic in the hopes, I suppose, of dodging the very real and very obvio= us=20 other sorts of judgments that can be justified just as equally.nbsp; This= is=20 a list related to the discussion of law and religion.nbsp; It is mainly=20 populated by professors of the subject.nbsp; Professors of the subject lo= ve=20 to reason by analogy.nbsp; If you think that the hypotheticals are=20 irrelevant, you might offer some basis for saying so.nbsp; I chose them=20 because I think that they help point the way to one possible problem with=20= the=20 innately stupid choice made by the UC system:nbsp; bias.nbsp;/DIV DIVnbsp;/DIV DIVAnd if you think that pedagogical value of courses is determined by=20 employment of universally adopted approaches (the evolutionary
Re: Findings on Hostility at Smithsonian Noted in NRO Article
Might I suggest (a) that the limited number of participants in this thread (and related ones in the recent past), and (b) the comparative advantage of most list members in law rather than the philosophy of science, indicates that perhaps the thread has played itself out? Content-Type: multipart/alternative; boundary=-1124498331 ---1124498331 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit In a message dated 8/19/2005 6:26:19 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: No textbook in the past decade, and maybe in the past 40 years, that I have found, claims ontogeny recapitulates phylogeny. It's a red herring (there are those fish again!) to claim that is an issue in evolution classes. It's not. Of course, over time the specifics change. Eventually, my professor will have gone into the land of emeriti and future generation of students taking that class will not be entertained by his misconception. But in 1980 (not 40 years ago, yet) at college in North Carolina, one dinosaur taught it just this way. Oh, and by the way, as recently as the 2003 MCAT, that gatekeeper to medical education has tested, or had as a possible subject of testing, ontogeny recapitulates phylogeny. See _http://www.aamc.org/students/mcat/studentmanual/biologicalsciences/biology.pdf_ (http://www.aamc.org/students/mcat/studentmanual/biologicalsciences/biology.pdf) . Jim Henderson Senior Counsel ACLJ ---1124498331 Content-Type: text/html; charset=US-ASCII Content-Transfer-Encoding: quoted-printable !DOCTYPE HTML PUBLIC -//W3C//DTD HTML 4.0 Transitional//EN HTMLHEAD META http-equiv=3DContent-Type content=3Dtext/html; charset=3DUS-ASCII META content=3DMSHTML 6.00.2900.2722 name=3DGENERATOR/HEAD BODY id=3Drole_body style=3DFONT-SIZE: 10pt; COLOR: #00; FONT-FAMILY:=20= Arial=20 bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7FONT id=3Drol= e_document=20 face=3DArial color=3D#00 size=3D2 DIV DIVIn a message dated 8/19/2005 6:26:19 P.M. Eastern Standard Time,=20 [EMAIL PROTECTED] writes:/DIV DIV DIV BLOCKQUOTE=20 style=3DPADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px solid= FONT=20 style=3DBACKGROUND-COLOR: transparent face=3DArial color=3D#00 size= =3D2No=20 textbook in the past decade, and maybe in the past 40 years, that I have=20 found, claims ontogeny recapitulates phylogeny.nbsp; It's a red herring=20 (there are those fish again!) to claim that is an issue in evolution=20 classes.nbsp; It's not./FONT/BLOCKQUOTE/DIV DIV/DIV DIVOf course, over time the specifics change.nbsp; Eventually, my profess= or=20 will have gone into the land of emeriti and future generation of students ta= king=20 that class will not be entertained by his misconception.nbsp; But in 1980 (= not=20 40 years ago, yet) at college in North Carolina, one dinosaur taught it just= =20 this way.nbsp;/DIV DIVnbsp;/DIV DIVOh, and by the way, as recently as the 2003 MCAT, that gatekeeper to=20 medical education has tested, or had as a possible subject of testing, ontog= eny=20 recapitulates phylogeny.nbsp; Seenbsp; A=20 href=3Dhttp://www.aamc.org/students/mcat/studentmanual/biologicalsciences/b= iology.pdfEMhttp://www.aamc.org/students/mcat/studentmanual/biologicalsc= iences/biology.pdf/EM/A./DIV DIVnbsp;/DIV DIVJim Henderson/DIV DIVSenior Counsel/DIV DIVACLJ/DIV/DIV/DIV/FONT/BODY/HTML ---1124498331-- ___ 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. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Feature films on church and state
I read the summary Rick directed us to, and I'm a bit puzzled. The doctor intervened in a situation where (the summary says) "there are only two options--surgery or death." As a result of the intervention, the alien boy's physical life is preserved, but in the end his parents kill him because, as they put it, "This was not our son. This was only a shell. There was nothing to do but end the pain of the shell." What I'm puzzled about is why Rick describes this outcome as a disaster. It turns out that the (physical) outcome was death either way. And that death resulted from the parents' acting on their beliefs at least as much as from the surgeon's intervention. I suppose this might be described as a disaster if one shared the parents' religious beliefs -- but, because they are entirely fictional, I don't see how anyone could. It would be different if some obviously bad consequences occurred by means other than the parents' choices. One could describe the episode, as summarized, as about free will and determinism, or about the bad consequences of religious fanaticism. (One thing it's not about is the bad consequences of government intervention, because the surgeon refuses to comply with the government representative's direction not to perform the surgery.) Rick Duncan wrote: Here by the way is a very nice summary of Babylon 5 "The Believers" episode. Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Start your day with Yahoo! - make it your home page ___ 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: What causes more religious strife: Government bodies posting the Ten Commandments, or courts ordering their removal?
I'm a few hours behind on these postings, so apologies in advance if this point has been made: Suppose that the inquiry into strife is not a direct touchstone, in the sense that asking whether X causes religious strife is relevant to deciding whether X is constitutional. Rather -- as I think Justice Souter argued in McCreary -- the fact that government interactions (or some other term) with religion historically did cause religious strife should guide our interpretaion of the First Amendment. He then argues that, when one considers the other relevant interpretive material, the best test that emerges is a rule of neutrality, but one could take his first point without thinking that his specific doctrinal conclusion -- drawn, again, from other interpretive material -- is the correct one. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Government criticism of the Supreme Court on religion-related materials
I haven't commented on this thread, mostly because I thought the answer was pretty straight-forward from Justice Souter's invocation of common sense as a legal technique in addressing this kind of problem. I could get fancier about this (in the initial version, what does common sense tell you about the purpose of presenting the protest in this particular form? in the revised version, what does common sense tell you about the choice of this particular form of vivid display when other vivid displays of protest are clearly possible, like displaying an Impeach Justice Souter banner?), but in some sensse that would be inconsistent with the technique. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: RE: Government criticism of the Supreme Court on religion-relatedmaterials
I suppose that Eugene's reply is a demonstration of why invoking common sense is better than trying to get fancy about it. (But, I'm puzzled at how putting up a picture is a cogent argument but putting up a banner is not; I'll give you vivid in both cases, but -- at least where I come from -- a cogent argument presents reasons for the conclusion drawn. I don't think anyone is contending that republishing Justice Scalia's dissent would violate the Establishment Clause; doing so presents an argument, the cogency of which I'll leave to others to assess. The question is about whether protesting by means of adjoining to that dissent the displays at issue in McCreary -- and, by the way, which one? the first one? the second one? the third one? (and if the display of the third one is a cogent argument, why wouldn't the display of the first one be?) -- violates the Establishment Clause becase -- once again -- common sense tells us that the (primary) reason/purpose for choosing that form of protest is one that, according to Lemon prong-one, is one on which the government cannot predicate its actions.) begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: Rick Perry and separation of church and state
So, on one side we have the sermon (personal capacity, done to curry
political favor, OK), in the middle we have the signing ceremony), and
on the other side we have the official proclamation that Texas is a
Christian state (official capacity, done to curry political favor, I
assume not-OK until Eugene explain why it's OK). The question is why
the line is drawn so that the first and second fall into a single
group, rather than the second and third. I proposed money, and then
worried about a direct-indirect distinction. Eugene proposes
"reasonable perception of endorsement," which has all the problems
associated with perception tests. Are there other candidates?
Volokh, Eugene wrote:
I agree that giving a sermon at a church isn't identical to
signing a bill at a religious gathering. But the only "official" effect
of signing a bill flows from its having been signed. Perry's signing it
at a religious gathering in no way affects the contents of the bill, or
any other legal obligation that anyone possesses. The choice of where
and how to sign the bill is a political decision, aimed at sending a
political message to a political constituency.
Both a sermon and the signing convey the impression that the
governor holds certain religious views, and thinks they are right.
Neither the sermon nor the signing should, I think, lead a reasonable
person to conclude that the State of Texas -- as an entity, as opposed
to a group of people -- holds certain religious views, whatever that
might mean. And to say that Perry is conveying the impression that he
holds certain religious views "in the course of an official act" still
seems to me unresolved: Why, as a matter of constitutional law or
constitutional spirit, should we care whether a political official is
trying to strengthen his bonds with a politically influential religious
group, in the course of a signing ceremony as opposed to in the course
of a sermon? In both instances, it seems to me, the message ("I'm a
Christian, and I'm trying to win more favor from a particular subgroup
of Christians") is the same.
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of
Steven K Green
Sent: Monday, June 06, 2005 11:51 AM
To: Law Religion issues for Law Academics
Subject: RE: Rick Perry and separation of church and state
Eugene continues to equate Perry's action with other
quasi-official/ quasi-private acts such as a governor giving
a sermon at a church or Bush speaking at a religious pro-life
rally. I agree that these latter events are of a political
nature and will usually be perceived as such. I may be
offended by them, but they are probably too close to the
partisan/private roles of an official to transgress the EC in
a real sense. But Perry's act is clearly different -- it is
primarily official, and as such, he as the chief state
official is giving the impression of favoring Christianity in
the course of an official act. So he meets Eugene's #1 and
probably #2 (as governments frequently speak through their
officials, particularly when one represents the entire state).
Steve Green
Willamette University
Sandy Levinson writes:
As to spirit, why not try "avoid using one's official position to
give needless offense to persons with different religious views by
making them feel marginal members of the community" (which
I take it
is close to, but not the same as, O'Connor's "endorsement"
position).
The problem as several postings are making clear, is what
it means to
"use one's official position." There are no bright lines,
but I find
Mark Tushnet persuasive that bill signing and the hoop-la
attached to such is more "official" than a sermon on Sunday
commenting on a bill-signing that occurred in a state
building in Austin.
Hmm -- even as spirit goes, that's a pretty amorphous
term. Many
people are offended when the government -- either the courts or
government agencies, such as (most recently) the L.A. City
Council as
to the L.A. city seal -- excises religious components from
government
speech. Some people are, I suspect, offended if it there
were a norm
that politicians could do signing ceremonies in front of
every group
with which they want to cement political bonds (feminist,
environmentalist, pro-life, pro-choice, and so on) except religious
groups.
How can these be distinguished under Sandy's
definition? One way
might b
Re: Stanford's Warning about Religion
In connection with Rick's question, you might want to look around your campus for posters/signs with headlines like "Stop Psychiatric Abuse," and for tables with banners like "Stress Management" or "Stress Reduction." Also, this story -- Andy Newman, "Bumping Up Against Subway Regulations, New York Times, March 29, 2005 -- may be instructive. (Of course, I may be particularly sensitive to this sort of thing because I teach at an institution that obviously has a pastoral mission with respect to its students.) Rick Garnett wrote: Dear all, In the course of looking into something having nothing to do with law-and-religion, I came across a web page, provided by Stanford University's Office for Religious Life, entitled "A Word of Warning." Here is a link: http://religiouslife.stanford.edu/sar/warning.html Here is the text: A Word of Warning Maintaining and nurturing your spiritual life during college and graduate school is one of the best ways to keep perspective on your studies and to avoid the isolation that is too often a part of scholarly pursuits. The Deans for Religious Life and members of SAR are committed to providing opportunities for spiritual growth, rewarding friendships and intellectual inquiry into matters of faith in a supportive environment. Unfortunately, not every religious group has your best interests at heart. Groups to avoid have some or all of the following characteristics. Pressure and Deception: They use high-pressure recruitment tactics or are not up-front about their motives when they first approach you. SAR members are required to identify themselves on all News and Publications and to be clear and forthright about their motives. Totalitarian Worldview: They do not encourage critical, independent thinking. The first goal of higher education is to enable you to think for yourself. Be aware of groups or leaders who try to control your life or who claim to possess the truth exclusively. Alienation: They want to choose your friends for you. While all religions have moral guidelines, watch out for groups that encourage you to sever ties with close friends and family who are not members. They are manipulative and extremely dangerous. Exploitation: They make unrealistic demands regarding your time and/or money. If participation in a group takes away from your study time, beware. A group or leader that cares about you understands that your studies-your future-are your first priority as a Stanford student. SAR members are strictly forbidden to require dues from student participants. If you feel you are being pursued aggressively or manipulated by a group or leader, contact any of the Deans for Religious Life or call 723-1762. * * * Now, it strikes me as reasonable and appropriate for a University like Stanford to provide (perhaps) paternalistic guidance to students on all sorts of matters involving their "personal" lives, including involvement with religious groups and activities. (I would hope that a University's willingness to provide "warning[s]" to students about the dangers posed by some religions to "critical, independent thinking" would indicate a willingness to warn about similar dangers posed by, say, political or identity-related groups). I imagine that reasonable people will disagree about what, exactly, "counts" as "claim[ing] to possess the truth exclusively" or "[dis]courag[ing] critical, independent thinking," but put that problem aside. I wonder, do any members of this list have any thoughts or views on how, if at all, the First Amendment would constrain the issuance by a state-run university of a "warning" like Stanford's? Or, approaching the matter from a broader, "religion and liberal democracy" perspective, what would we think about this "warning"? Best, Rick ___ 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: Wait, there's more: Leading ID think tank calls Dover evolution policy misguided, calls for it to be withdrawn
I'm not sure that the following intervention will be productive, but: My sense is that this discussion has reached beyond the limits of list-relevance in its discussions of the substance of ID, evolutionary theory, etc. (I remember enough about physics from college to know that the law of entropy says nothing about the possibilities of an increase in order in any subset of the universe as a whole.) Alan Leigh Armstrong wrote: Evolution appears to violate the law of entropy. That is things tend to disorder. (examples: a deck of cards, any teenagers bedroom.) Evolution assumes that things become more ordered. Physicists in industry are not going to spend the time on it because it will not help produce a product. Physicists in colleges are not looking at it because there is no grant money in it. Also would a published article on the subject help them get tenure? Alan Law Office of Alan Leigh Armstrong Serving the Family Small Business Since 1984 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714-375-1147 Fax 714 375 1149 [EMAIL PROTECTED] [EMAIL PROTECTED] www.alanarmstrong.com KE6LLN On Dec 14, 2004, at 4:56 PM, Michael MASINTER wrote: How does evolution appear to violate the laws of thermodynamics? And if it does, why haven't physicists figured it out? Michael R. MasinterVisiting Professor of Law On Leave FromUniversity of Miami Law School Nova Southeastern University(305) 284-3870 (voice) Shepard Broad Law Center(305) 284-6619 (fax) [EMAIL PROTECTED]Chair, ACLU of Florida Legal Panel On Tue, 14 Dec 2004, Alan Leigh Armstrong wrote: My training in physics was that a theory is an explanation that fits the facts. For example, the theoretical physicist comes up with a theory. The experimentalist runs the experiment and gives the results to the theoretical physicist who then modifies the theory. There are many holes in the theory of evolution. Evolution appears to violate the laws of thermodynamics. There are also many things that have been presented as evidence of evolution that have been proven false. The problems with evolution and the major schools of thought within evolution should be taught to the students. If DI has a different theory that fits the facts, it should also be taught. I tend toward the 6 days of creation with the clock counting the time being at the center of the big bang. The gravitational effect slowing down the clock so that we may still be in the seventh day. Alan Law Office of Alan Leigh Armstrong Serving the Family Small Business Since 1984 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714-375-1147 Fax 714 375 1149 [EMAIL PROTECTED] [EMAIL PROTECTED] www.alanarmstrong.com KE6LLN On Dec 14, 2004, at 3:05 PM, Steven Jamar wrote: Sandy, I agree that there is value in multiplicity in the three examples you mention, including critiques of evolution. But there is a difference between evolution (an established fact) and disagreements about the mechanism by which it works. Requiring teaching that evolution is false is not an acceptable alternative. But allowing or even requiring critiques makes a great deal of sense. Even if it is creationism light. Knowledge is not all a matter of social power. But what constitutes truth at any given time certainly is affected by social power. Steve On Tuesday, December 14, 2004, at 05:16 PM, Sanford Levinson wrote: I just listened to an NPR segment quoting one of the supporters of ID saying that it is important that students be presented with alternatives to Darwinism. That is, this is an appeal to the importance of a multiplicity of points of view. Is there a principled way of deciding when that is a desiderata? Consider, e.g., the failure of American public schools to present in any serious way the propositions that a) we have quite a dysfunctional Constitution (a proposition that I personally believe) and b) there are legitimate reasons for various and sundry persons around the globe to hate us (a proposition that I also believe, but not for all of the various and sundry persons who in fact hate us, obviously). I take it that the persons who believe in multiplicity of views with regard to ID are unlikely to accept its importance with regard to my examples. But, conversely, I presume that persons who agree with my examples are likely to be hostile to presenting ID as even a possibility. Is Foucault right, that what counts as knowledge (or disputable theory) is all a matter of social power? (This is not a rhetorical question.) sandy -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ It is by education I learn to do by choice, what other men do by the constraint of fear. Aristotle
Re: The President and the Pope
I have the feeling that this thread may have played itself out, but one matter hasn't come up -- whether there's a difference between a public statement soliciting support from religious leaders, etc., and a private conversation in which such support is solicited (and whether, in a world of leaks, such a distinction is anything close to coherent). I simply report my intuition that the public statements are lower on the problematic scale than the private conversation (which is not to say that either one is high on that scale). ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The President and the Pope
My intuition is that openness matters, in constraining what a politician will say. But I agree that we're dealing with quite a marginal issue here. - Original Message - From: Richard Dougherty [EMAIL PROTECTED] Date: Monday, June 14, 2004 5:51 pm Subject: Re: The President and the Pope Mark: I would have thought that it was the other way around on the problematic score, no? If Bush is looking for electoral support, wouldn't it be more advantageous to make a public statement about the matter, rather than making what looks like a rather innocuous comment to a Vatican official in private? (About which, of course, he was perfectly accurate.) Or is your suggestion that if he does so openly then at least we know what he's up to? I suppose were Bush to make public a criticism of the Catholic bishops he might risk alienating Catholic voters? (But we should all be aware that an attempt to influence Catholic voters in America by appealing to a Vatican official in private is essentially futile.) This might be a mountain being made into a molehill. Richard Dougherty -- Original Message -- From: Mark Tushnet [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED]Date: Mon, 14 Jun 2004 15:43:05 -0400 I have the feeling that this thread may have played itself out, but one matter hasn't come up -- whether there's a difference between a public statement soliciting support from religious leaders, etc., and a private conversation in which such support is solicited (and whether, in a world of leaks, such a distinction is anything close to coherent). I simply report my intuition that the public statements are lower on the problematic scale than the private conversation (which is not to say that either one is high on that scale). __ _ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Follow up as to the baptisms in the park
I don't read the manager as saying that most public religious activities are prohibited in the park. As I read him, he's saying that such activities are allowed, but only in the shelters (as is true, as I read it, of political rallies and events by private companies [which I suppose might include annual corporation picnics and the like, but maybe this refers only to things like product release parties]). As I read the statement (not embodied in a written policy, apparently), the park is, so to speak, zoned for different activities, with some, including religious activities and political rallies, limited to the shelters, and others allowed in the common areas (as well as the shelters?). And, if that's the correct understanding, is there something impermissible about such zoning (akin to reserving Hyde Park Corner, but no other part of Hyde Park, for political speeches)? Indeed, even if I'm misunderstanding the policy, is zoning of this sort within a public park constitutionally permissible? [There's lurking here a disparate impact argument as well, of a sort that affects public forum doctrine generally, because, whatever might be said about, e.g., celebrations of the Mass, which might be performed (let me assume) in a shelter, baptisms of the sort at issue can't be.] Volokh, Eugene wrote: It looks like there is a policy of prohibiting most public religious activities in the park. Wouldn't that be unconstitutional in a traditional public forum (which the park, though not the river, likely is), even if there is no discrimination? But it would also be some evidence that there does appear to be religious discrimination even in the river use policy. Eugene http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386 . . . Some who heard about the controversy say the rule may be illegal and a form of religious discrimination. You can't treat religious expression in a public park any different from any other kinds of expression, said Kent Willis, executive director of the American Civil Liberties Union of Virginia in Richmond. Park Authority Manager Brian Robinson, who approached Pyle after Sunday's baptisms, said the agency doesn't discourage religious activities. He said religious services, political rallies and private companies that use the authority's four parks must confine their activities to a reserved shelter or room so they do not interfere with other park patrons. Active church services, such as baptisms and revivals, or anything that takes on a public persona that others would take offense or object to, are not allowed in the common areas of the parks, Robinson said. We don't have a problem with providing shelters, but we don't want others to feel forced to endure someone else's religion, he said. In addition to Falmouth Waterfront Park, the regional authority oversees St. Clair Brooks Park and Pratt Park in southern Stafford and Old Mill Park in the city. Park officials have had situations in the past where groups came in, set up tents and loud speakers for revivals and tried to promote their particular message to others, he said. Members of Cornerstone Baptist, who didn't inform park officials before the baptisms, were passing out literature Sunday, Robinson said. But the policy, which is not in writing, prompted debate last night during an emergency meeting of the Park Authority board. . . . Some board members were confused about the policy. Tom Gordon, the authority's operations supervisor, said he thought certain religious ceremonies--such as Easter sunrise services--were permitted on a case-by-case basis. Eric Olsen, the board's vice chairman, said he never understood that the Park Authority had a policy on religious activities. Olsen proposed creating a subcommittee to research the issue and report back when the board meets next month. . . . Yesterday, the ACLU wrote a Park Authority board member asking that the agency assure the group that it has no ban on religious activities and that it will allow baptisms at Falmouth Waterfront Park. . . . If a nonprofit swimming camp is doing the same thing, would it be treated differently? [U. Va. professor Robert O'Neil] asked. If it's discouraged, but not forbidden, then that's a problem. Park Authority officials say they discourage swimming in the Rappahannock River, but since the river is governed by state law, they can't prohibit people from entering the water, Robinson said. The first drowning of this year occurred Sunday, upstream from the park just hours after the baptisms. Over the years, the Rappahannock near Fredericksburg has claimed dozens of lives, including four drownings during the summer of 2002. . . . ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to
Re: RE: Medical workers who don't want to participate in abortions
I too wonder about the statutory interpretations Eugene proffers. Consider first the Illinois statute, which refers to physician, hospital, ambulatory surgical center, nor employee thereof. It seems to me to stretch this coverage language to include applicant for employment thereto. The New York statute's requirement (included as well in the Illinois statute) that the person having the objection file a prior written refusal is awkwardly phrased were it to be interpreted to apply to applicants for employment. I can imagine an applicant attaching such a refusal to his/her employment application -- or an interpretation requiring that the materials prepared to applicants to fill out have a statement with a box to be checked by applicants with the relevant objections -- but this does not seem to me the natural interpretation of the statutory language. And, finally, although the Virginia statute does refer to den[ying] employment, that reference is coupled with one to an objection, the antecedent of which is, as in the other statutes, to a prior written objection, which again raises the question of how an applicant for employment is to make such an objection. Again, I can imagine that an answer No to a question on the application form, Would you participate in performing abortions? would count as the required prior written objection. But, again, I think the more natural reading of the statutes is that they refer to present employees (and that the denial of employment in the Virginia statute should therefore be read -- admittedly, a bit awkwardly, but I think less awkward than the alternative -- to refer to denials that take the form of termination of employment). -Original Message- From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED], [EMAIL PROTECTED] Date: Sat, 15 May 2004 16:33:39 -0700 Subject: RE: Medical workers who don't want to participate in abortions I agree with Sandy that there should be no Establishment Clause problems when the law applies equally to secular conscientious objectors -- but that's because I generally think that the Establishment Clause mainly mandates a nondiscrimination rule. Yet Thornton v. Caldor (http://caselaw.lp.findlaw.com/scripts/ getcase.pl?court=usvol=472invol=703) didn't seem to be framed quite that way (except for a brief mention in footnote 9 that the law prefers religious reasons over secular reasons). Is it clear that it should be interpreted as being inapplicable when the law treats secular and religious objectors equally? As to Sandy's conjecture about hiring decisions, I'm not sure that it's quite right. I would imagine that a statute such as Illinois Statutes ch. 38 para. 81-33, 13. No physician, hospital, ambulatory surgical center, nor employee thereof, shall be required against his or its conscience declared in writing to perform, permit or participate in any abortion, and the failure or refusal to do so shall not be the basis for any civil, criminal, administrative or disciplinary action, proceeding, penalty or punishment. If any request for an abortion is denied, the patient shall be promptly notified. would apply equally to requirements in the sense of we won't hire you if you don't agree to perform abortions as well as we will fire you if you don't agree to perform abortions. Likewise, the New York statute provides that When the performing of an abortion on a human being or assisting thereat is contrary to the conscience or religious beliefs of any person, he may refuse to perform or assist in such abortion by filing a prior written refusal setting forth the reasons therefor with the appropriate and responsible hospital, person, firm, corporation or association, and no such hospital, person, firm, corporation or association shall discriminate against the person so refusing to act, which seems to encompass discrimination in hiring as well as discrimination in promotion or dismissal or discipline. The Virginia law is even more explicit: any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion, and the refusal of such person, hospital or other medical facility to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person, nor shall any such person be denied employment because of such objection or refusal. I agree that this would sometimes impose serious burdens on hospitals -- burdens that other nondiscrimination laws might deal with through a reasonable accommodation, undue hardship, or even bona fide occupational qualification analysis; but those restrictions
Re: Re: Axson-Flynn
Coming in late on this: I've gone back and forth over the years about what to do about Cohen, although now I've settled in on using the word (on the ground that -- at least with my students -- the chances of offense are quite low). (I take it that the possibility of giving offense is relevant to the pedagogic questions Sandy raises even if one thinks that the government cannot ban or regulate material simply on the ground of its offensiveness.) There's a similar problem in teaching Hess v. Indiana, which I think is a nice case to illustrate precisely what Brandenburg means by imminence. On a related topic, and along the lines of Sandy's interest in anecdotes: Obscenity/pornography is pretty clearly much more difficult than Cohen, I think. I've never displayed any materials in class. What I sometimes do is describe what Potter Stewart meant by hard-core pornography (and what is clearly prohibitable -- subject to community standards -- under Miller). The description is that Stewart meant depictions of penetration and ejaculation -- depictions, I point out, that are readily available on the Web at free sites that an untutored person can locate in about ten minutes (I used to report how long it took for me to find free Stewart-hard-core obscenity on the Web [usually, about ten minutes] but now I've pretty much memorized the easiest site's address [available on request] so I can't do that any more). Given the ready available of hard-core obscenity (in Stewart's and Miller's sense), pretty clearly the only thing worth talking about with respect to obscenity is the transformation in community standards in many places. (Interestingly, Penthouse magazine regularly carries photographs of penetration, but -- perhaps because of advice from its lawyers -- only in black-and-white photospreads, unlike the color photospreads in the rest of the magazine.) But, what remains interesting to talk about, I think, is non-obscene (in the Miller sense) sexually explicit material that offends/subordinates. And, to the extent that the concern is offense (or subordination that is itself offensive), there really is a pedagogic problem, which I've never been able to solve. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Is UCLA violating the Establishment Clause?
The About This Site section of the web page says: The Lesbian Gay Bisexual Transgender Campus Resource Center is a department in Student and Campus Life, a division of the Student Affairs Organization under the direction of Vice Chancellor Winston Doby. The quoted material is the textual portion of the sub-section of the web site under Your Needs as Homosexuality and Religion. The Your Needs section also includes material on Sexual Orientation Discrimination in the Classroom, Good Health and Playing Safe!, Housing Resources, and Legal/Political Links, along with a general Links and Resources item. - Original Message - From: Nathan Oman [EMAIL PROTECTED] Date: Tuesday, January 27, 2004 9:55 am Subject: Re: Is UCLA violating the Establishment Clause? It is not clear to me if this is from a student organization or from a part of the university. I am assuming from Eugene's comments that it is from the university. At 08:22 PM 1/26/2004 -0800, you wrote: The UCLA Lesbian Gay Bisexual Transgender Campus Resource Center -- which is apparently part of the UCLA administration, and not just a student group -- provides the material copied below, at http://www.lgbt.ucla.edu/need_religion.html; target=lhttp://www.lgbt.ucla.edu/need_religion.htmlhttp://www.lgbt.ucla.edu/need_religion.html . I assume that this is pretty clear an Establishment Clause violation, since it expresses expressly religious views, endorsing some and disapproving of others. Or am I mistaken on this? Eugene Homosexuality and Religion All of God's promises are intended for every human being, including lesbian, gay, bisexual, and transgender people. How tragic it is that many religious institutions have excluded and persecuted people who are not heterosexual. We are all created with powerful needs for personal relationships. Our quality of life depends upon the love we share with others, whether family or friends, partners or peers. Yet lesbian, gay, bisexual, and transgender people facing hostile attitudes in society often are denied access to healthy relationships. We are called upon to find ultimate meaning in life through our spiritual selves as well as our physical and emotional selves, which can bring healing and strength to all of our relationships. The issues about homosexuality are very complex and not understood by most members of religious organizations, according to Bernard Ramm of the American Baptist Seminary of the West. This evangelical authority on biblical interpretation says that, To them, it is a vile form of sexual perversion condemned in both the Old and New Testaments. But as Calvin Theological Seminary Old Testament scholar Marten H. Woudstra says, There is nothing in the Old Testament that corresponds to homosexuality as we understand it today and as Southern Methodist University New Testament Scholar Victor Paul Furnish says, There is no text on homosexual orientation in the Bible. Says Robin Scroggs of Union Seminary, Biblical judgments against homosexuality are not relevant to today's debate. They should no longer be used...not because the Bible is not authoritative, but simply because it does not address the issues involved...No single New testament author considers homosexuality important enough to write his/her own sentence about it. Evangelical theologian Helmut Thielicke states, Homosexuality...can be discussed at all only in the framework of that freedom which is given to us by the insight that even the New testament does not provide us with an evident, normative dictum with regard to this question. Even the kind of question which we have arrived at ... must for purely historical reasons be alien to the New testament. Ideas and understandings of sexuality have changed greatly over the centuries. People in biblical times did not share our knowledge or customs of sexuality; we do not share their experience. In those days there was no romantic dating as we know it today; marriages were arranged by fathers. The ancients, as MIT's David Halperin notes conceived of 'sexuality' in non-sexual terms: what was fundamental to their experience of sex was not anything we would regard as essentially sexual. Rather, it was something essentially social - namely, the modality of power relations that informed and structured the sexual act. In the ancient world, sex was not intrinsically relational or collaborative in character, it is, further, a deeply polarizing experience: It serves to divide, to classify, and to distribute its participants into distinct and radically dissimilar categories. Sex possesses this valence, apparently, because it is conceived to center essentially on, and to define itself around, an asymmetrical gesture, that of the penetration of the body
