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

[Marty Lederman]

Paul Clement's reply brief
<http://www.scotusblog.com/wp-content/uploads/2017/05/16-814-pet-cert-reply.pdf>.
Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman <lederman.ma...@gmail.com
> > wrote:
>
>> For purposes of a project I'm currently working on, I'm genuinely curious
>> whether any readers on the list think that there was a substantial

Re: Johnson Amendment E.O.

[Marty Lederman]

Never mind!:

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

On Thu, May 4, 2017 at 11:53 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Just came across this from David Saperstein’s testimony
> <https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf>
> today.  He makes the point much better than I did--I would only add that
> virtually all of his hypos could be extended beyond the church, to
> countless activities of *all *501(c)(3) organizations:
>
> Let me offer some hypotheticals of the implications of a proposal that
> says any statement is allowed that does not involve extra expenses:
>
> Suppose instead of one sermon, in every scheduled sermon for the half-year
> running up to the election, the pastor(s) endorses various candidates and
> reiterates those endorsements?
>
> Suppose in every regular bulletin and regular email over those six months,
> the pastor or church leaders focus on endorsements of a party or a
> candidate(s)?
>
> Suppose with the costs of local calls being de minimis these days, they
> allow their phones to be used for campaign phone banks?
>
> Suppose a church has their congregants fill out cards for the offerings
> for later tax verification (putting their money and card in an envelope
> which they hand in) — and the church then adds envelopes and cards to fill
> out for contributions to the candidates they endorse and collect those with
> the offerings and someone from the campaign comes by every week and
> collects them.
>
> Or suppose the President of Notre Dame or Catholic University adds a
> single sentence to their regular email to their scores of thousands of
> alumni : “I believe based on sound religious reasoning you should all vote
> for Candidate A and oppose Candidate B.”
>
> Certainly de minimis but is that how tax deductible money should be used?
> In each of these there is no extra funding bulletins or emails, collecting
> offerings) what they would normally do.
>
> Are proponents of this legislation arguing that although you might
> disapprove on other grounds, that as far as the law is concerned, this
> ought to be allowed because it really doesn’t constitute using tax exempt
> and tax deductible funding for partisan political purposes? What is the
> cumulative value of the salaries and the overhead of the congregation in
> making this electioneering possible? If the church is funded by tax
> deductible contributions, are not these contributions subsidizing this
> electoral activity? If the church has the benefit of tax exemption to
> support its eleomosynary work, does not the tax exemption support
> everything the church does including its endorsement activities? Everything
> about the church is subsidized by tax exempt and tax deductible money. And
> that is as true of one sermon as six months of sermons; of one bulletin as
> six months of bulletins.
>
>
>
> On Thu, May 4, 2017 at 11:29 AM, Marty Lederman <Martin.Lederman@law.
> georgetown.edu> wrote:
>
>> I'm afraid I don't quite understand Doug's other point, which appears to
>> be that the no-political-activity condition should not be construed to
>> extend to sermons (or Congress should amend the law to exclude sermons)
>> because churches don't spend money on sermons.  But of course churches
>> spend money on sermons--indeed, that is among the functions *for which* *they
>> are afforded tax benefits*.  The government subsidizes the "religious"
>> activities of churches, for the reasons described in *Walz *(i.e.,
>> they're presumptively analogous to the also-benefited charitable,
>> educational, etc., activities of other organizations within the class).
>> Paying for clergy is certainly within that category of activities that are
>> afforded the tax benefits.  But Congress has decided that although it's
>> perfectly happy to pay for other sermons by clergy--just as it pays for
>> plenty of speech by other nonprofits--it doesn't want to subsidize
>> specifically partisan endorsements, by churches or any other (c)(3)s.
>>
>> On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> Unless there has been some recent change in IRS policy that I don’t know
>>> about and that Marty does not suggest, the Amendment is not limited to
>>> “express” endorsements. The IRS jawboning, which is its only enforcement
>>> effort, describes many things that it views as implicit endorsements, such
>>> as voter guides that focus on issues of concern to the church, or
>>> comparisons of candidate positions to church positions. These are
&g

Re: Johnson Amendment E.O.

[Marty Lederman]

Just came across this from David Saperstein’s testimony
<https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf>
today.  He makes the point much better than I did--I would only add that
virtually all of his hypos could be extended beyond the church, to
countless activities of *all *501(c)(3) organizations:

Let me offer some hypotheticals of the implications of a proposal that says
any statement is allowed that does not involve extra expenses:

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

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

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

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

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

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

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



On Thu, May 4, 2017 at 11:29 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I'm afraid I don't quite understand Doug's other point, which appears to
> be that the no-political-activity condition should not be construed to
> extend to sermons (or Congress should amend the law to exclude sermons)
> because churches don't spend money on sermons.  But of course churches
> spend money on sermons--indeed, that is among the functions *for which* *they
> are afforded tax benefits*.  The government subsidizes the "religious"
> activities of churches, for the reasons described in *Walz *(i.e.,
> they're presumptively analogous to the also-benefited charitable,
> educational, etc., activities of other organizations within the class).
> Paying for clergy is certainly within that category of activities that are
> afforded the tax benefits.  But Congress has decided that although it's
> perfectly happy to pay for other sermons by clergy--just as it pays for
> plenty of speech by other nonprofits--it doesn't want to subsidize
> specifically partisan endorsements, by churches or any other (c)(3)s.
>
> On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> Unless there has been some recent change in IRS policy that I don’t know
>> about and that Marty does not suggest, the Amendment is not limited to
>> “express” endorsements. The IRS jawboning, which is its only enforcement
>> effort, describes many things that it views as implicit endorsements, such
>> as voter guides that focus on issues of concern to the church, or
>> comparisons of candidate positions to church positions. These are
>> summarized in the CRS report he links to.
>>
>>
>>
>> There is an ambiguity at the end of the paragraph that begins “notably.”
>> Contributions to the 501(c)(4) would not be tax deductible. Creating the
>> 501(c)(4) would not change the status of the original 501(c)(3).
>>
>>
>>
>> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
>> applied to political expenditures. The hard issue of cost-free endorsements
>> in sermons was not presented.
>>
>

Re: Johnson Amendment E.O.

[Marty Lederman]

I'm afraid I don't quite understand Doug's other point, which appears to be
that the no-political-activity condition should not be construed to extend
to sermons (or Congress should amend the law to exclude sermons) because
churches don't spend money on sermons.  But of course churches spend money
on sermons--indeed, that is among the functions *for which* *they are
afforded tax benefits*.  The government subsidizes the "religious"
activities of churches, for the reasons described in *Walz *(i.e., they're
presumptively analogous to the also-benefited charitable, educational,
etc., activities of other organizations within the class).  Paying for
clergy is certainly within that category of activities that are afforded
the tax benefits.  But Congress has decided that although it's perfectly
happy to pay for other sermons by clergy--just as it pays for plenty of
speech by other nonprofits--it doesn't want to subsidize specifically
partisan endorsements, by churches or any other (c)(3)s.

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unless there has been some recent change in IRS policy that I don’t know
> about and that Marty does not suggest, the Amendment is not limited to
> “express” endorsements. The IRS jawboning, which is its only enforcement
> effort, describes many things that it views as implicit endorsements, such
> as voter guides that focus on issues of concern to the church, or
> comparisons of candidate positions to church positions. These are
> summarized in the CRS report he links to.
>
>
>
> There is an ambiguity at the end of the paragraph that begins “notably.”
> Contributions to the 501(c)(4) would not be tax deductible. Creating the
> 501(c)(4) would not change the status of the original 501(c)(3).
>
>
>
> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
> applied to political expenditures. The hard issue of cost-free endorsements
> in sermons was not presented.
>
>
>
> Is there any reason to think that the IRS is pursuing cost-free
> endorsements by secular non-profits? If not, there is no discrimination to
> trigger Marty’s Establishment Clause argument about current enforcement
> policy. I have never seen any account of such a case against a secular
> non-profit.
>
>
>
> The real problem with what Marty anticipates from the EO is this: Since
> the IRS already has an implicit policy of non-enforcement with respect to
> cost-free endorsements, the only possible effect of the EO is to direct
> non-enforcement with respect to political expenditures of money. And that
> would open up an enormous loophole in campaign finance regulation and in
> the rule that political expenditures are not tax deductible.
>
>
>
> A House Subcommittee is holding hearings this morning on the bills to
> repeal or amend the Johnson Amendment.
>
>
>
> Shameless plug: I wrote about the Johnson Amendment here:
> https://www.christiancentury.org/article/dont-repeal-
> johnson-amendment-fix-it
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, May 4, 2017 8:56 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Johnson Amendment E.O.

[Marty Lederman]

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

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

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unless there has been some recent change in IRS policy that I don’t know
> about and that Marty does not suggest, the Amendment is not limited to
> “express” endorsements. The IRS jawboning, which is its only enforcement
> effort, describes many things that it views as implicit endorsements, such
> as voter guides that focus on issues of concern to the church, or
> comparisons of candidate positions to church positions. These are
> summarized in the CRS report he links to.
>
>
>
> There is an ambiguity at the end of the paragraph that begins “notably.”
> Contributions to the 501(c)(4) would not be tax deductible. Creating the
> 501(c)(4) would not change the status of the original 501(c)(3).
>
>
>
> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
> applied to political expenditures. The hard issue of cost-free endorsements
> in sermons was not presented.
>
>
>
> Is there any reason to think that the IRS is pursuing cost-free
> endorsements by secular non-profits? If not, there is no discrimination to
> trigger Marty’s Establishment Clause argument about current enforcement
> policy. I have never seen any account of such a case against a secular
> non-profit.
>
>
>
> The real problem with what Marty anticipates from the EO is this: Since
> the IRS already has an implicit policy of non-enforcement with respect to
> cost-free endorsements, the only possible effect of the EO is to direct
> non-enforcement with respect to political expenditures of money. And that
> would open up an enormous loophole in campaign finance regulation and in
> the rule that political expenditures are not tax deductible.
>
>
>
> A House Subcommittee is holding hearings this morning on the bills to
> repeal or amend the Johnson Amendment.
>
>
>
> Shameless plug: I wrote about the Johnson Amendment here:
> https://www.christiancentury.org/article/dont-repeal-
> johnson-amendment-fix-it
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, May 4, 2017 8:56 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Johnson Amendment E.O.

[Marty Lederman]

Well, if *Hobby Lobby*'s dictum that RFRA radically altered the pre-*Smith *law
were correct, that'd be one thing.  But it's not
<http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf>.  And
therefore doesn't the *unanimous *"no burden" holding in *Jimmy Swaggart*,
cited by the court in *Rossetti*, pretty much settle the question?

On Thu, May 4, 2017 at 11:01 AM, David Cruz <dc...@law.usc.edu> wrote:

> I agree on avoidance and RFRA.  I’m just trying to work out for myself how
> to square *Branch Ministries* with the expansive analysis in *Hobby Lobby*.
> Maybe subsidy (vs. penalty?) does the trick; I’ll have to think more on
> this.
>
>
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 7:54 AM
> *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject: *Re: Johnson Amendment E.O.
>
>
>
> That, as the court of appeals explained, the only legal ramification of so
> speaking would be that the church would then be treated the same as
> everyone else who speaks likewise--i.e., it'd get major tax benefits, but
> contributions wouldn't be tax-deductible.  The fact that the state would
> not provide such a dramatic * subsidy *for such speech would not
> substantially burden that speech, any more than it would burden similarly
> motivated speech by an individual, for-profit corporation, or other kind of
> association.
>
>
>
> But even if you disagree, and would find a substantial burden, it would
> still be unconstitutional to give churches special political-speech
> rights--and avoiding that constitutional violation means the government
> ought to win under RFRA.
>
>
>
> On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu> wrote:
>
> In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal
> from electoral politics would violate its beliefs.” 211 F.3d at 142.  This
> fact played a role in the court’s “no substantial burden” reasoning.  If a
> Church did so  maintain today, Marty, what extra analysis would you endorse
> that leads to your conclusion that “the Johnson Amendment does not
> substantially burden the religious activity of a religious organization—and
> therefore does not raise any serious Free Exercise or RFRA questions—*even
> if the organization believes that partisan politicking is a significant
> component of its religious mission*” (emphasis added)?
>
>
>
> -David
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 5:55 AM
> *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject: *Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
> <https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1>
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
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> 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.
>
>
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%2

Re: Johnson Amendment E.O.

[Marty Lederman]

That, as the court of appeals explained, the only legal ramification of so
speaking would be that the church would then be treated the same as
everyone else who speaks likewise--i.e., it'd get major tax benefits, but
contributions wouldn't be tax-deductible.  The fact that the state would
not provide such a dramatic *subsidy *for such speech would not
substantially burden that speech, any more than it would burden similarly
motivated speech by an individual, for-profit corporation, or other kind of
association.

But even if you disagree, and would find a substantial burden, it would
still be unconstitutional to give churches special political-speech
rights--and avoiding that constitutional violation means the government
ought to win under RFRA.

On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu> wrote:

> In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal
> from electoral politics would violate its beliefs.” 211 F.3d at 142.  This
> fact played a role in the court’s “no substantial burden” reasoning.  If a
> Church did so  maintain today, Marty, what extra analysis would you endorse
> that leads to your conclusion that “the Johnson Amendment does not
> substantially burden the religious activity of a religious organization—and
> therefore does not raise any serious Free Exercise or RFRA questions—*even
> if the organization believes that partisan politicking is a significant
> component of its religious mission*” (emphasis added)?
>
>
>
> -David
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 5:55 AM
> *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject: *Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
> <https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1>
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> 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.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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Johnson Amendment E.O.

[Marty Lederman]

FYI:

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

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

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo)

[Marty Lederman]

I agree entirely with Chip that the Court in H-T eschewed
Sherbert/Yoder-type balancing.  The important questions going forward,
however, are (i) *why *it did so -- i.e., what the justification is for the
church's absolute immunity w/r/t "ministers" and antidiscrimination laws;
and (ii) whether that rationale is likewise implicated as to other sorts of
laws, and persons other than ministers.

The greatest virtue (among many) of Chip and Bob's article, I think, is
that they tie the decision in H-T to the line(s) of cases in which the
Court has held that the state cannot evaluate --is *not capable of
evaluating *-- certain kinds of religious questions, which we can
denominate "exclusively ecclesiastical questions."

For example:  The state may not -- cannot -- assess whether and to what
extent Person X adequately or effectively conveys the faith (e.g., the word
of God) to parishioners (or to students), or whether, e.g., Cheryl Perich
has or has not violated Lutheran tenets.  Chip and Bob's shorthand for such
things, as I understand it, is that the state cannot assess an individual's
"fitness" for the ministry (from the perspective of the church).

I agree with this.  Likewise, I agree that the state could not assess the
impact *upon congregational prayer *of the presence of nursing women.  That
is to say, the state *must accept as true* the church's conclusion (i) that
Cheryl Perich violated Lutheran precepts (indeed, that fact was undisputed
-- by filing an EEOC claim, she did, indeed, breach a church rule, based in
scripture, that such disputes be settled without resort to civil
authorities); (ii) that Perich's violation (and/or her other conduct) made
her incapable of adequately conveying the faith to students, and generally
"unfit" for such a role; and (iii) that the religious
functions/effectiveness of prayer are undermined by the presence of nursing
women.

The state should (or must) also accept the church's judgment that the
functions in question (e.g., inculcating the faith to students in H-T;
congregational prayer in Steve's hypo) are of supreme *importance *to the
church's religious mission.

But those things only go so far to resolving how the cases should come
out.  We could--and must--defer to the Church on all of the relevant
religious question, and thus must *accept *the proposition that retaining
Perich as a called teacher would undermine its ability to inculcate the
faith, or that the presence of nursing women will, for whatever reason,
make communal prayer less effective.  And I'll accept for present purposes
the related notion that we must, too, accept the church's conclusions that
these are very damaging harms to its religious mission--harms that the
state has no business second-guessing.

OK, but now we must still decide whether the ADA's prohibition on
retaliation can and should apply *notwithstanding *this (conceded) harm to
the church.  And however one thinks we ought to resolve that question, the
important point I'm trying to stress here is that *that *assessment does *not
*require the state to answer any "exclusively ecclesiastical questions."
 Such constituent ecclesiastical questions are all already answered, *in
the church's favor* (which is different from the case of another,
nonreligious employer, where the court could critically assess whether the
law would actually have the impact on productivity, etc., that the employer
claims).  We still need to decide, however, whether the civil law should
trump the harms to the church--harms that we must accept as a
given--particularly if the requested remedy does *not *include retention as
a minister (e.g., if Perich were asking only for back pay, or for retention
as a lay (not called) teacher).

This might be made clearer by looking at two related hypos, both of which
the Court in effect *reserved *in H-T (i.e., that the Court conceded are
not necessarily governed by the decision in H-T):

1.  A common-law contract claim in Perich's case, in which the contract
includes a promise by the church that the minister retains all statutory
rights to file EEOC claims.

2.  A Fair Labor Standards statute that prohibits persons under 18 from
working more than 20 hours a week, as applied to a church that claims that
a 15-year-old is most fit to be its minister, and that also claims that the
minister's effectiveness, in performing ministerial/pastoral functions
(e.g., inculcating the fatih; leading the congregation), requires that she
be available "on call," which amounts to 60 or so hours a week.

In *all four* cases -- Perich's ADA claim; Steve's never-to-be-enacted
statute that prohibits exclusion of nursing women from all places where
people gather, including church pews; Perich's contract claim; and Chris's
"minor minister" FLSA claim -- the courts, and other civil authorities,
must accept as a given the church's assessment of who is "fit" to be a
minister, and under what circumstances, and must also accept the church's
assessment of the 

Re: Church excludes nursing woman

[Marty Lederman]

t; ethnically exclusionary in their membership, and so on.
>>
>> 2.  If a church can exclude people from membership or
>> attendance based on race, sex, etc., I assume it would likewise be free to
>> exclude people who engage in certain behavior.
>>
>> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but
>> I assume the *Hosanna-Tabor *principle – if it’s applicable – would
>> provide categorical protection, not subject to trumping under strict
>> scrutiny.
>>
>> Eugene
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw
>> -boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf
>> Of *Steven Jamar
>> *Sent:* Thursday, April 27, 2017 9:49 AM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Church excludes nursing woman
>>
>> If RFRA applied to the state, or if Virginia had a state RFRA that copied
>> the federal RFRA, would this state law be legal?
>>
>> Virginia law provides that a woman can breast feed uncovered anywhere she
>> has a legal right to be. Can a church then exclude her because breast
>> feeding uncovered might make some other congregants uncomfortable?
>>
>> https://www.washingtonpost.com/local/virginia-politics/this-
>> breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7
>> ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>>
>> --
>> Prof. Steven D. Jamar
>> Assoc. Dir. of International Programs
>> Institute for Intellectual Property and Social Justice
>> http://iipsj.org
>> http://sdjlaw.org
>>
>>
>> "Years ago my mother used to say to me... 'In this world Elwood' ... She
>> always used to call me Elwood... 'In this world Elwood, you must be Oh So
>> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend
>> pleasant.  You may quote me." --Elwood P. Dowd
>>
>> - Mary Chase, "Harvey", 1950
>>
>>
>>
>> ___
>> 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.
>>
>
>
>
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> 301-928-9178 <(301)%20928-9178> (mobile, preferred)
> 202-994-7053 <(202)%20994-7053> (office)
> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
> People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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>
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>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Here's the government's brief in opposition
<http://www.scotusblog.com/wp-content/uploads/2017/04/16-814-BIO.pdf>.  It
stresses that RFRA's substantial burden test requires the claimant at a
minimum to provide evidence of an honest belief that the practice in
question--rather than available alternatives--was *important* to her
exercise of religion (something utterly lacking here--see my description
below).

The SG does not mention, in addition, that even if there were a substantial
burden here, RFRA would not require a religious exemption because the
government has a compelling interest in not violating the Free Speech
Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others thi

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

[Marty Lederman]

P.S.  I'd wager that most of the "left" also supports *O Centro*--indeed,
many might even argue for a *constitutionally* compelled exemption for
congregational ceremonial rituals of that kind.

This is all speculative, of course.

On Wed, Apr 26, 2017 at 7:27 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I think there has been very, very little change on the "left" in terms of
> views on the funding and regulation *of houses of worship *(except that,
> perhaps, there's no longer any understanding of/sympathy for the "no
> funding" rule).  Far as I know, there aren't a lot of folks on the "left"
> who oppose *Amos*, or even *Hosanna-Tabor *as applied to actual
> ministers.
>
> On Wed, Apr 26, 2017 at 7:22 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
>> So is it correct to conclude that the struggle over LGBT rights explains
>> 100% of any change in public attitudes -- left and right-- about funding
>> and regulation of houses of worship? If not, what else explains the change?
>> The end of the fight between Protestants and Catholics about public funding
>> of religious schools?
>> On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> I think people are aware that funding may bring more regulation. Judges
>>> tend to defer to government conditions attached to money, even though some
>>> of those conditions raise serious questions of unconstitutional conditions.
>>>
>>>
>>>
>>> The fear has lost much of its force in part because of *Smith* and the
>>> underenforcement or nonenforcement of state RFRAs. If these institutions
>>> are going to be regulated anyway, they have less to lose by taking the
>>> money. And if you look at the history of evangelical schools, where many of
>>> these claims are coming from, first they fought out the regulatory issues,
>>> in mostly unsuccessful litigation and in state legislatures and before
>>> state boards of education. Only after most of those issues were resolved
>>> one way or the other did they begin to push for equal access to government
>>> money.
>>>
>>>
>>>
>>> I’m less certain about this second point, but I think that many of them
>>> feel that the risk of extra conditions attached to money is smaller than
>>> the risk of fighting a culture war where the other side is government
>>> funded.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Douglas Laycock
>>>
>>> Robert E. Scott Distinguished Professor of Law
>>>
>>> University of Virginia Law School
>>>
>>> 580 Massie Road
>>>
>>> Charlottesville, VA 22903
>>>
>>> 434-243-8546 <(434)%20243-8546>
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Eric J Segall
>>>
>>>
>>> *Sent:* Wednesday, April 26, 2017 5:17 PM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
>>> Special Treatment or Not?
>>>
>>>
>>>
>>> When I worked for DOJ in the late 80's and litigated a major Chapter
>>> (now I think Title) 2 funding case in San Francisco, the main plaintiff's
>>> lawyer was a devout 7th Day Adventist who strongly feared government grants
>>> to religious schools would ultimately dissipate religious freedom. Many
>>> religious folks at the time held this view. I agree with Marty and Chris
>>> that this view seems to have largely disappeared.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Eric
>>>
>>> Sent from my iPhone
>>>
>>>
>>>
>>> ___
>>> To post, send message to Religionlaw@lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see
>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>>
>>> Please note that messages sent to this large list cannot be viewed as
>>> private.  Anyone can subscribe to the list and read messages that are
>>> posted; people can read the Web archives; and list members can (rightly or
>>> wrongly) forward the messages to others.
>>
>> --
>> Sent from Gmail Mobile
>> F. Elwood & Eleanor Davis Pr

Bible classes in elementary schools

[Marty Lederman]

Any possibility this

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

[Marty Lederman]

Yes, but neither before, nor during, nor after, that 14-year window
(1971-1985) did the Court ever suggest that direct money payments to a
church would be constitutional under the Establishment Clause -- let alone
that a state would be constitutionally *prohibited *from adhering to such a
bright-line rule, something that 39 states have done for 200 or so years
(Missouri's prohibition having been in its Constitution when it joined the
union in 1821).  (And even in the states that do not have such an express
prohibition, and within the federal government, I am not aware of *any
*practice,
until very recently, of direct money grants being given to churches.  The
examples cited at pages 6-9 of the Orthodox Jewish Congregations brief

(cited
by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, *Mitchell*,
Justice O'Connor's controlling opinion stated that there are “special
dangers associated with direct money grants to religious institutions”—a
“form of aid [that] falls precariously close to the original object of the
Establishment Clause’s prohibition.”  And even in *Rosenberger*, Justice
Kennedy's majority opinion stated that “we have recognized special
Establishment Clause dangers where the government makes direct money
payments to sectarian institutions” and that “[i]t is, of course, true that
if the State pays a church’s bills it is subsidizing it, *and we must guard
against this abuse*.”  (Both of these were, of course, in the context of
"neutral" programs that did not *favor *religious recipients.)

Chip is right that it is remarkable that not only has this
longstanding *Establishment
Clause *constraint been virtually forgotten, the Court is likely on the
verge of replacing a "no funding" prohibition with a "must fund"
requirement!

He's also right that one major reason why this could happen is that the
rationales for the "no funding" rule--in particular, Madison's
church-autonomy-protective rationales--have virtually disappeared from the
litigation, and from the public discourse more broadly.  (Note, for
instance, that in *Mitchell, *O'Connor refers to "the original object of
the Establishment Clause’s prohibition" *without mentioning what it might
be*.)  One minor exception is the BJC amicus brief

[disclosure:  I consulted on it]; but its arguments, which were once so
prominent in Religion Clause jurisprudence and scholarship, apparently no
longer resonate with the audience that matters, including, perhaps, the
author of *Rosenberger*, who once "recognized special Establishment Clause
dangers where the government makes direct money payments to sectarian
institutions” and purported to be committed to "guard[ing] against this
abuse.”

On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Actually, the Court adhered to a strong no-aid principle from 1971 to
> 1985. There are no cases striking down aid programs before or after that
> window. And even in that window there were a lot more than three pence
> worth of exceptions.
>
>
>
> *Everson* announced two principles: no aid in absolutist terms, and no
> person can be deprived of social welfare benefits because of his religion.
> The two principles turn out to be inconsistent, because any government
> money can be understood either as aid or as a social welfare benefit. The
> inconsistency accounts for the inconsistencies of the *Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and *Board of Education v. Allen* in 1968, and all the cases
> from *Witters* forward.
>
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546 <(434)%20243-8546>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Saturday, April 22, 2017 9:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> A few points:
>
> 1) Trinity Lutheran has never been asked for or given its "word that the
> playground will be used for [exclusively] secular purposes." If it receives
> a grant, nothing in Missouri law will stop the church from using the
> playground for worship services or religious instruction.
>
> 2) In my original post, I did not claim that the Madisonian narrative
> behind the "no funding" rules of the Establishment Clause was correct or
> persuasive as an original matter.  I did suggest that the Madisonian
> narrative was the basis for a view that held a majority of the Supreme
> Court from 1947 until at least 2002, and that no majority 

Re: Is Trinity Lutheran Church moot?

[Marty Lederman]

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

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

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Giving the church the tires or the money would moot the case. But so far,
> they have only announced a policy change, and that does not moot the
> case—especially where, as here, the other side has a plausible claim and
> could immediately sue the state officials to prevent them from granting the
> money or the tires and to force them to reverse the policy change. A
> decision to that effect could be reviewed in a different lawsuit, but that
> is always true in voluntary cessation cases. If the policy is ever
> reversed, the court could decide about it then. But the voluntary cessation
> doctrine says that the plaintiff who has gotten this far is entitled to a
> decision now, in this case.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, April 18, 2017 3:31 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Is Trinity Lutheran Church moot?
>
>
>
> Answer:  Probably, but it may depend upon some still-uncertain facts:
>
>
>
> https://balkin.blogspot.com/2017/04/is-trinity-lutheran-
> church-case-moot.html
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
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> private.  Anyone can subscribe to the list and read messages that are
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>
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Is Trinity Lutheran Church moot?

[Marty Lederman]

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

https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html
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Re: Religious objections to deportation policies

[Marty Lederman]

Alan:  The first two issues won't (yet) arise because, as far as I know,
the law does not require any private persons -- or cities, for that matter
-- to assist DHS with its removal proceedings.  There are no "obligations
to disclose" information about immigration status, in particular.  (All
that 8 USC 1373(a) does is to prohibit cities from prohibiting their own
employees from providing such info to the feds if they so choose.)

I'm also not aware of any cases involving your third scenario, in which (as
I understand it) a church harbors a removable alien and refuses to allow
immigration officials to enter the facilities to arrest the individual.

On Mon, Mar 27, 2017 at 11:50 PM, Alan E Brownstein <
aebrownst...@ucdavis.edu> wrote:

> Has anyone written anything about (or given some thought to) the
> possibility of RFRA being employed to challenge the federal government's
> deportation policies.
>
>
> For example, might a professor or registrar at a private school be
> permitted to assert RFRA as a defense to a federal law requiring her to
> seek and disclose the immigration status of students?
>
>
> Could a "sanctuary city" assert that it is relieving any of its employees
> from any obligation to disclose information about the immigration status of
> persons within the jurisdiction to federal immigration authorities if it
> would violate their religious beliefs to do so? Might the city argue that
> such an order complies with federal law because it is mandated by RFRA?
>
>
> May a church provide sanctuary to an undocumented refugee at risk of
> deportation and assert a RFRA claim to avoid prosecution for doing so? The
> church would assert it is prohibited by its beliefs from denying sanctuary
> in these circumstances.
>
>
> I recognize, of course, that successfully asserting a substantial burden
> on religious exercise only shifts the burden to the government to justify
> its actions under strict scrutiny.
>
>
> Alan Brownstein
>
> ___
> 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
>
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> wrongly) forward the messages to others.
>
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Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Thanks, Alan.   Yes, as I mentioned in my first post on the case last
summer, the USG would definitely win under RFRA, anyway, because avoiding a
Free Speech violation would surely be a compelling interest for denying the
exemption.  Another reason the Court should deny cert.  It shouldn't even
be necessary to reach the compelling interest, though.

On Mon, Feb 20, 2017 at 5:16 PM, Alan E Brownstein <aebrownst...@ucdavis.edu
> wrote:

> Three quick thoughts.
>
>
> 1. It would be helpful at least as a first step to limit the passages in
> Hobby Lobby about substantial burden to which Doug refers to claims where
> the government requires religious individuals or institutions to so some
> thing that their religion prohibits (often complicity claims). I think one
> can reasonably argue that the Court's review of substantial burden need not
> be so deferential to the religious claimant in cases like this one -- where
> the claimant is arguing that the government is burdening her ability to do
> something that her religion requires or motivates her to do.
>
>
> 2. Marty's point is well taken. If a person's religion allows for
> alternative ways to satisfy obligations -- that is, there are alternative
> avenues for religious exercise that satisfy the requirement's of one's
> faith -- then there is a strong argument that the claimant's religious
> exercise is not being substantially burdened if only one of those
> alternatives is restricted. The problem is that a claimant may argue that
> his or her idiosyncratic beliefs may not recognize such alternatives as
> being even minimally acceptable. Court's could of course also try to argue
> that as a secular matter alternative ways of satisfying a religious
> requirement are equivalent to each other so that burdening one alternative
> is not substantial because the other remains available. My concern here is
> that religious mandates often involve ritual acts and I am not sure that
> the courts should be deciding that two arguably similar acts have
> equivalent ritual significance. That does not seem to be a problem in the
> case we are discussing, however.
>
>
> 3. if the reason for the signs being taken down is a rule that the
> military does not allow any signs containing personal messages visible to
> others in a work station, or some other general speech restriction, isn't
> it clear that a RFRA ruling in favor of the claimant in this case would
> violate the Free Speech Clause of the First Amendment? Requiring the
> government to satisfy a more rigorous standard of review to regulate
> religious speech than it must satisfy to regulate non-religious speech
> would be viewpoint discrimination in favor of religious speech which is
> subject to strict scrutiny review and presumptively unconstitutional.
>
>
> Alan Brownstein
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Eric J Segall <eseg...@gsu.edu>
> *Sent:* Monday, February 20, 2017 1:11:50 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens
>
> That's fair Doug.
>
> e
>
> Sent from my iPhone
>
> On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> Well, the widespread hostility to enforcing RFRA *is* a threat to
> religious liberty. Just because RFRA’s supporters overreach on some issues
> does not change the fact that RFRA’s opponents are overreaching on other
> issues.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Eric
> J Segall
> *Sent:* Monday, February 20, 2017 3:47 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>;
> Marty Lederman <lederman.ma...@gmail.com>
> *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> Beautifully said Doug. I would just add that the kind of potential abuse
> you are talking about is maybe inevitable when this kind of law becomes
> part of the culture wars, and RFRA certainly has become that. Even Justice
> Alito has given speeches saying the potential non-enforcement of RFRA has
> become a threat to "religious liberty."
>
>
>
> Best,
>
>
>
> Eric
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
&g

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

[Marty Lederman]

As Doug knows, I agree with much of what he writes here, particularly about
how such claims will, in the long-run, discredit the project of religious
accommodation.

I'd only take issue with his assumption that this case might only be an
example of negligent lawyering.  After all, all of us remind ourselves,
every single day, of countless things that are important to us--some of
which are religiously inspired, others not.  If we were instructed by our
employers not to post such reminders in 28-point-type in our work spaces,
where bystanders can see them, I doubt any of us would feel as if that were
a material, let alone a substantial, burden on our ability to remind
ourselves about what is important to us.

The claim here, in other words, appears to be completely implausible, *unless
*one accepts the apparent view of the cert. petition that even the most
trivial limitation on religiously motivated behavior is a "substantial
burden" if it takes the form of a prohibition.  That can't be what
Congress-or any rational legislature--would have intended.

On Mon, Feb 20, 2017 at 3:37 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> This case may well be a trial lawyer’s failure to put on the evidence.
> Lawyers too often think the burden on religious practice is obvious, and
> fail to elicit the testimony that would clearly explain how and why the
> practice is religious and important and the challenged rule is a
> substantial burden. I suspect that more could have been offered here, but
> we don’t know that, and the record is what it is.
>
>
>
> Passages in the Court’s opinion in *Hobby Lobby* invite the kind of
> argument that Paul is making. But reading those passages for their maximum
> possible reach would be wholly unworkable, which is why seven of eight
> circuits refused to read it that way in the litigation that led to *Zubik*.
> The cryptic order in *Zubik* implies a four-four split, which in turn
> implies that four Justices were prepared to find a substantial burden
> there. I think that would have been a mistake, but the claimed burden
> there, however attenuated, at least connected to an important religious
> teaching. Far more implausible and attenuated claims will follow, in which
> religious claimants seek to govern the world by insisting that the way the
> world is currently being run burdens their religion, and no one can
> question their claim of burden. These kinds of claims will discredit the
> whole enterprise, which faces enough hostility already.
>
>
>
>
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Monday, February 20, 2017 3:07 PM
> *To:* Marty Lederman <lederman.ma...@gmail.com>
> *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
>
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
>
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no small
> thing in terms of sanctions.  As far as the record shows, her superior
> officer was not motivated by the fact that the signs were, or Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural

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

[Marty Lederman]

Oh, I'm sure that Sterling would attest that posting the signs fit into her
"system" of religious practice.  I'm even willing to assume she could have
easily demonstrated that the scriptural "reminders" were very important to
her, at least in the sense that they gave her peace of mind or lowered her
anxiety.  But if there were a million other ways she might have, just as
effectively, "reminded" herself of the religious message, can it really be
the case that prohibiting posting of the large-font signs in a way visible
to others *significantly *burdened her religious exercise?

On Mon, Feb 20, 2017 at 3:18 PM, Marc DeGirolami <
marc.degirol...@stjohns.edu> wrote:

> For whatever it’s worth, I have argued recently that the substantial
> burden inquiry should be governed by something like a requirement that the
> claimant come forward with some evidence to explain how the religious
> exercise fits into a “system” of religious belief and practice. That
> showing would and should, in my view, be evaluated generously toward the
> claimant. But it would be something. Even the text of RLUIPA, while
> ostensibly disclaiming centrality inquiry, itself speaks in terms of a
> “system of religious belief.”
>
> https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2791527
>
>
>
> From: Marty Lederman <martin.leder...@law.georgetown.edu>
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Monday, February 20, 2017 at 3:05 PM
> To: Marty Lederman <lederman.ma...@gmail.com>
> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re-upping: Sterling: A helpful test case on RFRA burdens
>
> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not e

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

[Marty Lederman]

Now that Paul Clement has filed a cert. petition
<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
in this case, I thought I might revive the thread, which didn't inspire any
reactions last time around!  Perhaps I'm alone, but it strikes me that the
case raises a very interesting and important question about how to assess
whether a burden on religious exercise is "substantial" for RFRA purposes.
To recap the very straightforward facts:

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

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

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

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

My question:  Can it really be the case that Sterling has established a
"substantial burden" on her religious exercise, without any evidence at all
of how or why the posting of the bible verse at her desk, in a font big
enough for bystanders to see, was at all important to her religious
commitments or exercise?

According to Paul Clement's petition, an inquiry into the "subjective
importance" of the practice to the plaintiff is not only unnecessary under
RFRA, but constitutionally prohibited--it "took the CAAF to a place no
secular court is equipped or authorized to go."  "[A]ny sensible
interpretation of the Religion Clauses must forswear a judicial inquiry into
the 'subjective importance' of a religious practice."

I'm genuinely curious:  What do others think of this argument?  Does
(must?) RFRA truly treat any and all religiously motivated activity the
same, regardless of how significant it is to the adherent's beliefs and
practices?





On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> For purposes of a project I'm currently working on, I'm genuinely curious
> whether any readers on the list think that there was a substantial burden
> here.  Paul Clement argued on behalf of the plaintiff's cause, and there
> were a slew of amicus briefs, so I assume there's a serious dispute out
> there.  I'd like to understand it better, and to be able to put the burden
> question in the best possible light.  (Please note that I am putting aside
> the question of whether the Air Force would still win on the back end of
> RFRA, which it likely would, if for no other reason than that offering a
> preference for religious workplace speech would violate the Free Speech
> Clause.  I am only interested for now in the burden question.)
&

Re: Arlene's Flowers

[Marty Lederman]

No specific discussion of the "least restrictive means" requirement.  Did
Stutzman make any argument in that regard?

On Thu, Feb 16, 2017 at 12:08 PM, James Oleske  wrote:

> One initial observation: While much of the ground in the opinion has
> previously been covered by courts in New Mexico and Colorado, this case
> involved one issue not present in prior "wedding vendor" cases: an
> exemption claim under a state constitutional provision that has been
> interpreted to require strict scrutiny post-Smith of burdens imposed by
> neutral and generally applicable laws (see pages 42-53 of the opinion).
>
> - Jim
>
>
> On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> Unanimous affirmance.
>>
>>
>>
>> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
>>
>> Charlottesville, VA 22903
>>
>> 434-243-8546 <(434)%20243-8546>
>>
>>
>>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
decides otherwise.  But even apart from the absence of any prospect of
success, what's so striking about the scholars' amicus brief is that it
doesn't even try to contend with this Colorado decision, or with most of
the Supreme Court and other cases cited therein -- let alone offer any
analysis of the Washington statute at issue.  Instead, it ultimately falls
back on the argument that Arlene's Flowers doesn't discriminate on the
basis of sexual orientation because it would also refuse to make
arrangements for two *heterosexual *men who chose to marry one another--an
argument that doesn't warrant much more of a response than the one
paragraph (para. 41) the Colorado court gives it, citing *Bray*.

It's also worth noting that the basic argument in the scholars' brief is
that this is a form of *sex *discrimination rather than *sexual
orientation* discrimination
(Stutzman purportedly doesn't care about what Robert Ingersoll's sexual
orientation is, or whether he has sex with Curt Freed, but "only" about the
fact that Freed is the same sex as Ingersoll--if Ingersoll were a woman,
she'd sell him flower arrangements for the marriage to Freed).  But in that
case, its coverage under the act would be even more self-evident, wouldn't
it?

On Wed, Oct 12, 2016 at 4:55 PM, James Oleske <jole...@lclark.edu> wrote:

> In case it's of interest, I believe the most extensive judicial discussion
> of this issue to date comes from the Colorado Court of Appeals in the
> Masterpiece Caskeshop case:
> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
> on/2015/14CA1351-PD.pdf (pages 12-23).
>
> In concluding that a refusal to provide marriage-related services to a
> same-sex couple constitutes sexual-orientation discrimination under
> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>
> The court also rejects the bakery's First Amendment compelled speech and
> free exercise (selective-exemption theory) arguments, and those issues are
> the subject of a cert. petition pending with the United States Supreme
> Court (the Colorado Supreme Court denied cert in the case):
> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>
> I think it is unlikely the Court will grant cert. in the Masterpiece
> Cakeshop case, and I think the compelled speech argument is a very
> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
> FAIR. But I do think the Court will eventually have to take a case to
> resolve the outstanding questions about the contours of the free-exercise,
> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
> much underinclusion makes a law non-generally applicable?"). Three justices
> recently gave an indication of where they were on that issue in Stormans v.
> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
> joined by the Chief and Justice Thomas).
>
> Colorado's brief in opposition to Masterpiece's petition is due on
> November 29.
>
> - Jim
>
>
> On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> Some of you may be familiar with the *Washington v. Arlene's Flowers*
>> case, which will be argued in the Washington Supreme Court next month.
>> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
>> Inc., a closely held for-profit corporation.  Over the course of nine
>> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
>> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
>> arrangements for his wedding to Curt Freed, however, she refused to provide
>> them, even if they were prepared by others in her shop, because doing so,
>> she claimed, would "constitute a demonstration of [her] approval for the
>> wedding," whereas in fact she has religious objections to same-sex
>> marriages.  (She agreed to provide the raw materials for the
>> arrangements--the flowers and such--but not to have her shop do the
>> arranging.)
>>
>> The Washington Attorney General sued Arlene's Flowers, seeking an
>> injunction against such discrimination in the future.  (Ingersoll and Freed
>> also sued, seeking nominal damages for the costs they incurred when
>> Stutzman refused to serve them.)  The principal basis for the suit is a
>> claim of discrimination on the basis of sexual orientation, prohibited by
>> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
>> provides that "It shall be an unfair practice for any person or the
>> person's agent or employee to commit an act which 

Re: Religious accommodation schemes and discriminatory practices

[Marty Lederman]

Exemption requests?  Huh?  There's no indication that the employer here had
a rule that you must shake the boss's hand, or that the employee sought
--let alone was denied -- an exemption from such a (nonexistent) rule.

But if an employer were so stupid as to impose such a rule, then yes, I
imagine the Title VII accommodation requirement, modest as it is, would
compel a religious exemption.  "morale costs"?  seriously?

On Tue, Oct 11, 2016 at 8:36 AM, Volokh, Eugene  wrote:

>I thought I’d pass along another post from Howard Friedman
> -- any thoughts on how religious accommodation schemes (whether RFRA-like
> or Title-VII-like) should deal with religiously motivated refusals to shake
> hands with members of the opposite sex?  Should there be a categorical rule
> rejecting such exemption requests, on the theory that discriminatory
> practices should never be accommodated?  (Should it matter whether the
> woman suggests, as an accommodation, that she not shake hands with anyone,
> male or female?)  Or should an employer have to accommodate such requests,
> especially if any morale cost stemming from the accommodation comes from
> coworkers’ emotional reactions to the religious practice?
>
>
>
>Eugene
>
>
>
> *Feed:* Religion Clause
> *Posted on:* Tuesday, October 11, 2016 7:00 AM
> *Author:* Howard Friedman
> *Subject:* Muslim Caseworker Sues Charging Religious Discrimination
>
>
>
> A Bangladeshi Muslim woman who was a social worker and had been employed
> as a case manager by a behavioral healthcare company filed suit in an
> Oregon state court last week charging religious, racial, national origin
> and disability discrimination in her termination.  The complaint (full
> text
> )
> in *Rahman v. Cascade Behavioral Healthcare, Inc.,* (OR Cir., Ct., filed
> 10/7/2016), claims, in part, that adverse employment action against her
> stemmed from her refusing for religious reasons to shake hands with men
> (including her boss), her wearing of a *hijab*, and her praying at work
> up to three times per day. The Oregon Bureau of Labor & Industries had
> dismissed her complaint filed with them, finding inadequate evidence of
> discrimination. (Full text
> 
> of OBLI order).  The Oregonian
> 
> reports on the lawsuit.
>
>
> View article...
> 
>
> ___
> 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
>
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> private.  Anyone can subscribe to the list and read messages that are
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> wrongly) forward the messages to others.
>
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

I assume Doug was referring to Arlene's Flowers' free exercise claim under
Art. I, section 11 of the Washington Constitution, which the state court
has construed in Sherbert/RFRA-like fashion.  Although I don't think the
religious exercise claim should prevail in this commercial context, I do
think that the constitutional argument is at least arguable, unlike the
amicus brief's statutory construction argument.

I won't presume to speak for Doug, but I assume the free exercise argument
for drawing the line at exemptions in the context of same-sex *marriages*
would depend on (i) the notion, which Doug has articulated and with which I
generally agree, that the *Sherbert *test, in practice, tends to be more of
a balancing test than a series of "yes/no" questions; and (ii) although
Washington might have a compelling interest in prohibiting discrimination
in *both* contexts, the state has a much *stronger *interest in prohibiting
the broader "we don't serve gays" form of discrimination, and thus the
balance against the burden on free exercise tips more strongly against an
exemption in that context.  As I said, I think the state should win in both
cases, but at least I see the basic logic of the free exercise argument for
the distinction--unlike the statutory argument in the amicus brief, which
would have the court hold that the refusal to sell arrangements for the
marriage is not prohibited discrimination at all, regardless of religious
burden, state interest, etc.

On Mon, Oct 10, 2016 at 6:09 PM, Eric J Segall  wrote:

> I fail to understand how "I will sell goods to gays and lesbians but I
> will not sell goods to gays and lesbians for their weddings though I will
> sell goods to the exact same weddings as long as gays are not involved" is
> not quite serious discrimination against gays and lesbians. I might be able
> to see some artistic exception on free speech grounds being possibly
> applicable but the distinction Doug suggests can't be right, as Marty
> persuasive argued. Discrimination can't be a matter of degree.
>
> Best,
>
> Eric
>
> Sent from my iPhone
>
> On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> I did not sign the scholars’ brief, and it is drawing about the reaction I
> expected. But nothing in the brief implies anything like the Ollie’s BBQ
> analogy.
>
>
>
> The claim in the brief is that discrimination confined to one very narrow
> context, an especially sensitive context with its own legal protections,
> and where the motivation for discriminating is a belief about that special
> context and not any broader hostility to the protected class, should be
> treated differently under the discrimination laws. I agree that the
> argument would have been better made under the Washington constitution. But
> it does not remotely suggest the Ollie’s argument, where the discrimination
> covered the bulk of the business, there was no special context with its own
> legal protections, the motive was not a belief about any special context,
> and the motive could not be distinguished from general hostility to the
> protected class.
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@
> lists.ucla.edu ] *On Behalf Of *Samuel
> Bagenstos
> *Sent:* Monday, October 10, 2016 5:15 PM
> *To:* John Q. Barrett 
> *Cc:* Law & Religion issues for Law Academics ;
> conlawp...@lists.ucla.edu
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> *In other words, if Ollie sells BBQ to black customers at a takeout window
> and refuses to serve them inside because he doesn’t believe in celebrating
> indoor racial integration*/because that is against his religious beliefs,
> he wins?—I think and hope not.
>
>
>
> As I'm sure you know, those were basically the facts in McClung itself.
>
>
>
> ___
> To post, send message to conlawp...@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> https://na01.safelinks.protection.outlook.com/?url=
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> 2Flistinfo%2Fconlawprof=01%7C01%7Cesegall%40gsu.edu%
> 7C468b81adfc8941d2e9f308d3f156ac0d%7C515ad73d8d5e4169895c9789dc74
> 2a70%7C0=ahk1zsoknJBCgWilQItnUna3sr2NWH9JY1AXft0VAy4%3D=0
>
> Please note that messages sent to this large list cannot be viewed as
> private.  List members cannot be prevented from forwarding messages without
> the sender's permission, though they are asked not to do so.
>
>
> ___
> To post, send message to conlawp...@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> 

Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

Some of you may be familiar with the *Washington v. Arlene's Flowers* case,
which will be argued in the Washington Supreme Court next month.
Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
Inc., a closely held for-profit corporation.  Over the course of nine
years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
arrangements for his wedding to Curt Freed, however, she refused to provide
them, even if they were prepared by others in her shop, because doing so,
she claimed, would "constitute a demonstration of [her] approval for the
wedding," whereas in fact she has religious objections to same-sex
marriages.  (She agreed to provide the raw materials for the
arrangements--the flowers and such--but not to have her shop do the
arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an
injunction against such discrimination in the future.  (Ingersoll and Freed
also sued, seeking nominal damages for the costs they incurred when
Stutzman refused to serve them.)  The principal basis for the suit is a
claim of discrimination on the basis of sexual orientation, prohibited by
the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
provides that "It shall be an unfair practice for any person or the
person's agent or employee to commit an act which *directly or indirectly*
results in *any* distinction, restriction, or discrimination, . . . or the
refusing or withholding from any person the admission, patronage, *custom*,
presence, frequenting, dwelling, staying, or lodging in any place of public
resort, accommodation, assemblage, or amusement."  The forms of prohibited
discrimination are listed in RCW 49.60.030:  "The right to be free from
discrimination because of race, creed, color, national origin, sex,
honorably discharged veteran or military status, *sexual orientation*, or
the presence of any sensory, mental, or physical disability or the use of a
trained dog guide or service animal by a person with a disability is
recognized as and declared to be a civil right. This right shall include,
but not be limited to: . . . (b) The right *to the full enjoyment *of any
of the accommodations, advantages, facilities, or privileges of any place
of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional
(Free Speech and Free Exercise) grounds; but the lower court ruled

in favor of the Attorney General.  The appeal from that decision is now
before the Washington Supreme Court, which will hear arguments in about
five weeks.

A couple of weeks ago, a group of 27 scholars, some of whom are on these
listservs, filed an amicus brief
 on behalf of
Arlene's Flowers.  (According to Rick Garnett, it was written by Steve
Smith, although he is not listed as counsel.)  That brief does not make a
constitutional argument at all.  Instead, it argues (as I read it) that the
Court should construe the Washington antidiscrimination statute so as not
to include Stutzman's refusal as prohibited discriminatory conduct in the
first place.

The theory of the brief, such as it is, is that Stutzman must not have been
engaged in discrimination on the basis of sexual orientation, since she was
willing to make arrangements for Ingersoll--a man who she knew was gay--for
purposes *other than *his marriage.  The lower court erred, according to
the brief, "[i]n erroneously treating the religious conviction Stutzman
does have as equivalent to a different and more troublesome objection that
she does not have."  She doesn't discriminate against gays and lesbians --
"only" against same-sex marriage.

I, for one, find this argument to be rather alarming, and, best I can tell,
indefensible.

As the Washington AG writes in his brief (responding to a similar argument
that Stutzman offered), "discrimination is discrimination, whether it is
complete or partial.  An employer cannot say: 'I hire women, but because of
my religious belief that women should be subservient to men, I will not
hire women to supervise men.' Similarly, it is irrelevant whether
Defendants generally serve gay and lesbian customers; their refusal to
serve the weddings of gay and lesbian customers is still prohibited
discrimination."

That's obviously right, isn't it?  The cases demonstrating it are legion.
Bob Jones University, for example, surely discriminated on the basis of
race by prohibiting students from interracial dating, even though it
admitted black students.  Would anyone have argued with a straight face
that the university did not discriminate on the basis of race, and that it
was error to treat BJU's rule "as equivalent to a different and more
troublesome objection that it 

Re: Successful RFRA defense in EEOC case against funeral home that fired a male-to-female transgender employee for insisting on wearing a skirt suit to work

[Marty Lederman]

Exactly, Eugene.  The employer already has available to it the
"alternative" the judge creatively surmised.  The employer himself didn't
propose it, no doubt because he would object to Stephens not wearing a tie
(not to mention other indicia of the fact that she's a woman, e.g.,
make-up), and to requiring all other employee to wear the court's proposed
unisex uniform.

The employer's own proposed "less restrictive alternatives," on the other
hand, are the *reductio ad absurdum *examples that flow from Alito's
misbegotten reasoning in *Hobby Lobby*:

Moreover, the government could employ other alternatives to ensure that
Stephens retains employment or the benefits of employment. For example, *the
federal government could directly hire Stephens and allow Stephens to dress
however Stephens wants; the government could pay Stephens a full salary and
benefits from the time of Stephens’s discharge until Stephens acquires
comparable employment; or the government could provide incentives for other
employers (including, but not limited to, employers in the funeral
industry) to hire Stephens and allow Stephens to dress as a member of the
opposite sex on the job*. See Hobby Lobby, 134 S. Ct. at 2780 (“[F]or the
Government to assume the cost of providing the four contraceptives at issue
to any women who were unable to obtain them . . . due to their employers’
religious objections[] . . . would certainly be less restrictive of the
plaintiffs’ religious liberty”). With all of these alternatives available
to the government, the EEOC cannot meet RFRA’s least-restrictive means
requirement and thus cannot satisfy strict scrutiny.

I wouldn't have even had the gall to put that on a law school exam, it's
such a ridiculous notion of what the statute requires (but not inconsistent
with *Hobby Lobby*!).

I therefore agree that the LRM analysis in opinion is absurd.  But so, I
think, is the "substantial burden" discussion.  This is what we might
expect as a result of the complicity arguments proffered in the
contraception cases:  Now, an employer argues with a straight face that his
religion would prohibit him from retaining an employee who wears a skirt,
if that employee was born with male reproductive organs, even if compelled
to do so by law.

What the contraception litigation has wrought . . . .

On Thu, Aug 18, 2016 at 5:59 PM, Volokh, Eugene  wrote:

> In today’s *EEOC v. R.G. & G.R. Harris Funeral Homes*,
> http://www.politico.com/f/?id=0156-9f0a-d073-a5d7-df9ef3920001, a
> federal district court rejected a EEOC claim on RFRA grounds.  I’m a bit
> puzzled, though, by the court’s reasoning, and I wanted to ask what fellow
> list members thought.
>
>
>
> 1.  First, the facts:  Harris Funeral Homes, 95% owned by Thomas Rost, has
> a dress code:  Men are to wear traditional male suits with neckties, while
> women are to wear skirt-suits.  (The district court concludes that this
> dress code violates Title VII’s ban on sex discrimination.)  Anthony
> Stephens worked for several years for Harris Funeral Homes, but then began
> transitioning to female, under the name of Amiee Stephens; when Harris
> learned that Stephens was going to insist on wearing skirt-suits to work,
> Harris fired Stephens.
>
>
>
> 2.  The EEOC sued, claiming this was impermissible sex-stereotyping
> discrimination under Price Waterhouse, because Stephens was fired for
> insisting on wearing stereotypically female clothing.  Rost argued that
> requiring him to have the business represented by someone whom Rost
> believes to be male wearing distinctively female clothing would violate
> Rost’s religious beliefs:
>
>
>
> Rost believes “that the Bible teaches that God creates people male or
> female.” He believes that “the Bible teaches that a person’s sex is an
> immutable God-given gift and that people should not deny or attempt to
> change their sex.” Rost believes that he “would be violating God’s
> commands” if he were to permit one of the Funeral Home’s funeral directors
> “to deny their sex while acting as a representative of [the Funeral Home].
> This would violate God’s commands because, among other reasons, [Rost]
> would be directly involved in supporting the idea that sex is a changeable
> social construct rather than an immutable God-given gift.” Rost believes
> that “the Bible teaches that it is wrong for a biological male to deny his
> sex by dressing as a woman.” Rost believes that he “would be violating
> God’s commands” if he were to permit one of the Funeral Home’s
> biologically-male-born funeral directors to wear the skirt-suit uniform for
> female directors while at work, because Rost “would be directly involved in
> supporting the idea that sex is a changeable social construct rather than
> an immutable God-given gift.”
>
>
>
> (Rost says that he doesn’t care what Stephens wears off-duty; Rost’s
> objection is to what he perceives as Stephens’s cross-dressing while
> representing Harris to customers.)
>
>
>
> 3.  

Re: Has anyone compiled the facts re Hobby Lobby type corporate ACA mandate plaintiffs?

[Marty Lederman]

I'm not aware of any for-profits that have (yet) alleged that the
accommodation does not satisfy their RFRA claim.  Anyone heard of any?

On Thu, Aug 11, 2016 at 12:34 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> The only piece of information I’m aware of is that one of the government’s
> briefs in *Zubik* says there are only 87 of them.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Case, Mary Anne
> *Sent:* Thursday, August 11, 2016 11:39 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Has anyone compiled the facts re Hobby Lobby type corporate
> ACA mandate plaintiffs?
>
>
>
> Is there, as far as any of you know, any available compilation of
> background factual data concerning all of the for profit objectors to the
> ACA contraception mandate, including, for example, such information as
> their religious affiliation, their corporate form, the familial
> relationships of their shareholders, the nature of their manifestation of
> religion (not limited to their objections to the mandate), the extent of
> their objections to the mandate (e.g. all contraception or only
> abortifacients), etc.?
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
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> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

For purposes of a project I'm currently working on, I'm genuinely curious
whether any readers on the list think that there was a substantial burden
here.  Paul Clement argued on behalf of the plaintiff's cause, and there
were a slew of amicus briefs, so I assume there's a serious dispute out
there.  I'd like to understand it better, and to be able to put the burden
question in the best possible light.  (Please note that I am putting aside
the question of whether the Air Force would still win on the back end of
RFRA, which it likely would, if for no other reason than that offering a
preference for religious workplace speech would violate the Free Speech
Clause.  I am only interested for now in the burden question.)

Assuming the following facts, as the court did:

1.  Lance Corporal Sterling posted three identical signs in her workspace,
each containing only the words “No weapon formed against me shall prosper,”
on 8 1/2- x 11-inch paper in 28-point font or smaller. One was on the side
of her computer tower, one above her computer screen, and one above her
desk mailbox. The signs were large enough for those walking by her desk,
and Marines seated at her workspace, to read.

2.  Her superiors insisted that she take the signs down, on penalty of
court-martial for insubordination (a pretty big deal in terms of sanction,
as, presumably, would be her leaving the service).  They were not motivated
by the fact that the signs, or Sterling, was religious--they would have
done the same no matter what the employees' motivation was.

3.  Her posting of the signs was (let’s assume--as the court did) sincerely
motivated by Sterling's religious beliefs, and the signs had religious
significance to her.  Yet she did not make any claim that posting them was
religiously mandated, or that it was a tenet (central or otherwise) of her
religion to do so.

Has she met her burden of demonstrating a substantial burden on her
religious exercise?  If so, and if we can imagine there are other officers
in her workplace who would be similarly (and just as intensely) motivated
to post signs at their stations for *nonreligious *reasons, why should we
assume Congress would want to provide rights to Sterling (even the right to
put the government to its RFRA burden) that it is unwilling to give her
similarly situated, secularly motivated colleagues?

Thanks in advance for any responses.


On Thu, Aug 11, 2016 at 9:52 AM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> The Armed Forces Court of Appeals handed down an interesting RFRA decision
> yesterday-- with an extensive discussion of the "substantial burden" prong
> as well as some other unique issues:
> http://religionclause.blogspot.com/2016/08/armed-
> forces-court-of-appeals.html
>
> Howard Friedman
>
> ___
> 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
>
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> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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Re: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Sorry, meant to add the following to Point 3 (in bold):

3.  Sterling's posting of the signs was (let’s assume--as the court did)
sincerely motivated by her religious beliefs, and the signs had religious
significance to her.  *In particular, she testified that she "posted the
signs in the form of the Christian Trinity to have the 'protection of
three' and to **serve as a 'mental note.'”  *Yet she did not make any claim
that posting them was religiously mandated, or that it was a tenet (central
or otherwise) of her religion to do so.

On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> For purposes of a project I'm currently working on, I'm genuinely curious
> whether any readers on the list think that there was a substantial burden
> here.  Paul Clement argued on behalf of the plaintiff's cause, and there
> were a slew of amicus briefs, so I assume there's a serious dispute out
> there.  I'd like to understand it better, and to be able to put the burden
> question in the best possible light.  (Please note that I am putting aside
> the question of whether the Air Force would still win on the back end of
> RFRA, which it likely would, if for no other reason than that offering a
> preference for religious workplace speech would violate the Free Speech
> Clause.  I am only interested for now in the burden question.)
>
> Assuming the following facts, as the court did:
>
> 1.  Lance Corporal Sterling posted three identical signs in her workspace,
> each containing only the words “No weapon formed against me shall prosper,”
> on 8 1/2- x 11-inch paper in 28-point font or smaller. One was on the side
> of her computer tower, one above her computer screen, and one above her
> desk mailbox. The signs were large enough for those walking by her desk,
> and Marines seated at her workspace, to read.
>
> 2.  Her superiors insisted that she take the signs down, on penalty of
> court-martial for insubordination (a pretty big deal in terms of sanction,
> as, presumably, would be her leaving the service).  They were not motivated
> by the fact that the signs, or Sterling, was religious--they would have
> done the same no matter what the employees' motivation was.
>
> 3.  Her posting of the signs was (let’s assume--as the court did)
> sincerely motivated by Sterling's religious beliefs, and the signs had
> religious significance to her.  Yet she did not make any claim that posting
> them was religiously mandated, or that it was a tenet (central or
> otherwise) of her religion to do so.
>
> Has she met her burden of demonstrating a substantial burden on her
> religious exercise?  If so, and if we can imagine there are other officers
> in her workplace who would be similarly (and just as intensely) motivated
> to post signs at their stations for *nonreligious *reasons, why should we
> assume Congress would want to provide rights to Sterling (even the right to
> put the government to its RFRA burden) that it is unwilling to give her
> similarly situated, secularly motivated colleagues?
>
> Thanks in advance for any responses.
>
>
> On Thu, Aug 11, 2016 at 9:52 AM, Friedman, Howard M. <
> howard.fried...@utoledo.edu> wrote:
>
>> The Armed Forces Court of Appeals handed down an interesting RFRA
>> decision yesterday-- with an extensive discussion of the "substantial
>> burden" prong as well as some other unique issues:
>> http://religionclause.blogspot.com/2016/08/armed-forces-
>> court-of-appeals.html
>>
>> Howard Friedman
>>
>> ___
>> 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.
>>
>
>
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Mississippi AG Hood declines to appeal adverse decision on HB1523

[Marty Lederman]

Michael:  Thank you for asking.  Of course I have no objection to protecting
the least among us, let alone to the Golden Rule.  Those are wonderful
aspirations and guides to behavior, and they might even appropriately be
considered in government decision-making, including even in deciding when
to concede a lawsuit.  But this is a case of an Attorney General publicly
suggesting that an official decision of his was made by virtue of "Jesus's
directive."  And in an Establishment Clause case, at that!

I don't think it is necessarily unconstitutional for a state official to
make decisions based upon injunctions of religious authorities (or, at
least, that's not typically justiciable); but I do think it is
inappropriate to publicly invoke such religious authority in explaining the
basis for one's action on behalf of the state.  I've been involved in many
such decisions, and can't imagine any government official so much as
proposing to invoke Jesus's authority as the basis for an appeal decision,
let alone actually announcing it.

If, however, my reaction is not universally shared (or my experiences are
less-than-universal), please feel free to ignore the final word of my post
-- suffice it to say that, at a minimum, an AG invoking Jesus certainly is
noteworthy, whatever one thinks of its propriety.

On Thu, Jul 14, 2016 at 11:05 AM, Michael Worley <mwor...@byulaw.net> wrote:

> Marty, I, for one, would be curious what you meant by "sigh."
>
> On Thu, Jul 14, 2016 at 8:47 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> He claims he didn't appeal because "I don’t believe that’s the way to
>> carry out Jesus’ primary directives to protect the least among us and to
>> love thy neighbor."
>>
>> Sigh.
>>
>> On Thu, Jul 14, 2016 at 10:44 AM, Friedman, Howard M. <
>> howard.fried...@utoledo.edu> wrote:
>>
>>> Issuing a strong statement, Mississippi's attorney general says he will
>>> not appeal Judge Reeves' decision
>>>
>>> http://religionclause.blogspot.com/2016/07/mississippi-ag-will-not-appeal.html
>>>
>>> --
>>>
>>>
___
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Re: New Version of Proposed First Amendment Defense Act

[Marty Lederman]

He claims he didn't appeal because "I don’t believe that’s the way to carry
out Jesus’ primary directives to protect the least among us and to love thy
neighbor."

Sigh.

On Thu, Jul 14, 2016 at 10:44 AM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> Issuing a strong statement, Mississippi's attorney general says he will
> not appeal Judge Reeves' decision
>
> http://religionclause.blogspot.com/2016/07/mississippi-ag-will-not-appeal.html
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Masinter [
> masin...@nova.edu]
> *Sent:* Wednesday, July 13, 2016 9:07 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: New Version of Proposed First Amendment Defense Act
>
> Agreed.  Any language that might have extended protection to all religious
> beliefs about marriage also would have encompassed beliefs specific to
> Islam, and that would be a deal breaker for many FADA supporters and a
> large percentage of the republican caucus in the House.  Isn’t the entire
> exercise just political chumming?
>
>
>
> Mike
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Wednesday, July 13, 2016 7:37 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: New Version of Proposed First Amendment Defense Act
>
>
>
> Agreed.
>
>
>
> That said, Judge Reeves's concern about "religious preference" in HB 1523
> went beyond the "one side of same-sex marriage" issue. See Reeves Op. at 50
> ("Some Jewish and Muslim citizens may sincerely believe that their faith
> prevents them from participating in, recognizing, or aiding an interfaith
> marriage Why should a clerk with such a religious belief not be allowed
> to recuse from issuing a marriage license to an interfaith couple, while
> her coworkers have the full protections of HB 1523?"). To fully address
> Judge Reeves's concerns, I think the FADA sponsors would have had to expand
> protection to all religious beliefs about marriage. So extended, however,
> the bill would likely lose any chance it previously may have had of passing
> in the House.
>
>
>
> The other dynamic I think is at work here is a tension between the
> priorities of (1) achieving protection of religious dissenters though
> exemption bills and (2) using exemption bills to resist Obergefell. FRC's
> statement indicates that there will be reluctance among some FADA
> supporters to sacrifice #2 to achieve #1.
>
>
>
> - Jim
>
>
>
>
>
> On Wed, Jul 13, 2016 at 3:52 PM, Michael Masinter 
> wrote:
>
> The “both sides” language may be a response to Judge Reeves’ injunction
> against enforcement of Mississippi’s HB 1523.  Judge Reeves enjoined
> enforcement of HB 1523 in part because, in his view, it created a
> discriminatory religious preference, protecting those who for religious
> reasons opposed same sex marriage but not those who for religious reasons
> favored it.  Although the state has appealed his ruling and sought a stay
> of his injunction pending appeal, some FADA proponents might have thought
> it wise to account for it lest it fail in the House even before facing
> certain death in the Senate.
>
>
>
> Mike
>
>
>
>
>
> Michael R. Masinter
>
> Professor of Law
>
> Nova Southeastern University
>
> 3305 College Avenue
>
> Fort Lauderdale, FL 33314
>
> 954.262.6151
>
> masin...@nova.edu
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Wednesday, July 13, 2016 6:29 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: New Version of Proposed First Amendment Defense Act
>
>
>
> Update: The Family Research Council has pulled it's support of FADA due to
> the change described below.
>
>
>
> https://www.frcaction.org/updatearticle/20160713/fada-concession
>
>
>
> It's been a very interesting week for FADA, between the RNC Platform
> Committee endorsement Monday, the House hearing yesterday, and conflicting
> messages from its supporters today (Heritage has invoked the "both sides"
> aspect of the revised FADA to defend it, while that is precisely what has
> led FRC to withdraw its support of the bill).
>
>
>
> - Jim
>
>
>
>
>
> On Wed, Jul 13, 2016 at 8:47 AM, James Oleske  wrote:
>
> In the wake of yesterday's hearing on the proposed First Amendment Defense
> Act (FADA), which now has 171 co-sponsores in the House, there has been
> some confusion about the text of the bill. I believe the source of this
> confusion is the fact that the version discussed at the hearing was neither
> (1) the introduced version of the bill, which is the only version available
> on Congress.gov nor (2) the revised version of the bill posted by Senator
> Lee last September, which limited the definition of protected 

Re: stocking rule

[Marty Lederman]

This is probably not worth the candle any longer, but I'd simply emphasize
(i) that the plaintiffs did not challenge the stocking rule; (ii) that the
agency has not taken any action against Stormans for failing to stock Plan
B and ella (not yet, anyway); (iii) that Stormans is a rather unique case
in that the pharmacy here *publicly announced *that it would not carry
certain drugs (which naturally triggered a complaint that doesn't typically
happen when pharmacies simply fail to stock without any such
pronouncement); and (iv) that there is no evidence -- not yet, anyway --
that the agency will treat Stormans any differently than it has treated
other, similarly situated pharmacies it has investigated for failure to
stock.

Look at it from the flip side:  If my understanding of the record is
correct, if the agency here were to say to Stormans, publicly, that
"notwithstanding the stocking rule, which has no exceptions, you may refuse
to stock ella and Plan B, even though we have never conferred such an
exemption upon any other pharmacy for any reason," then in that case
Stormans would be subject to disparate treatment:  It would be the first
pharmacy in the 50 years of the stocking rule to receive an express
exemption from that requirement.  Does *Lukumi *require that?

On Tue, Jun 28, 2016 at 4:54 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> There are extremely detailed findings of fact that conclude exactly what
> Steve doubts and Marty appears to deny: pharmacies fail to stock or deliver
> drugs, and refer folks elsewhere, for a vast array of reasons. The district
> court further found that the Commission had never, ever, interfered with
> these practices.
>
>
>
> The Ninth Circuit did not say that the district court was wrong about
> either of those findings. All it said was that the Commission had not
> formally approved the many referrals for business reasons, and that
> *maybe* those referrals actually violate the rules, even if those rules
> are never enforced against anyone but Stormans, and that if anyone ever
> complains about a referral with business motivations, *maybe* the
> Commission will do something about it.
>
>
>
> We are now 26 years since *Employment Division v. Smith* made the concept
> of generally applicable law central to the Free Exercise Clause. And we
> still don’t know what that concept means. The issue is clearly cert worthy,
> even if the Court did not want to confront it short handed, and even if the
> Pharmacy Commission’s dodge of not actually writing down the rules it does
> and does not enforce muddied the record here.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Green
> *Sent:* Tuesday, June 28, 2016 4:39 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* stocking rule
>
>
>
> In follow-up to Marty's comments, isn't comparison to the business
> stocking rule a red herring?  As many have pointed out, pharmacies have
> many reasons not to carry every drug: supply and demand; availability;
> storage space, etc.  Based on my personal experience and in having a child
> with a special need, pharmacies are always willing, if not eager for the $,
> to order a drug they don't carry.  So by not carrying a drug they are not
> "refusing" to do so in the same manner as in Stormans.  So is it accurate
> to say that pharmacies receive an exemption for business reasons that they
> wouldn't for religious reasons?
>
> Steve
>
>
> --
>
> Steven K. Green, J.D., Ph.D.
> Fred H. Paulus Professor of Law and Director
> Center for Religion, Law and Democracy
> Willamette University
> 900 State St., S.E.
> Salem, Oregon 97301
> 503-370-6732
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
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Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

There might be an interesting and potentially important FEC question
potentially lurking in the weeds of *Storman's*, once one strips away the
false narrative that the plaintiffs and Alito have saddled it with, and
once one realizes that Washington does not "*uniquely* burden religiously
motivated conduct."  The issue that *might be *present (depending on the
facts) is whether the FEC requires a religious exemption due to the
presence of a single secular exemption, even if religion is not singled
out, and even if analogous objections (based on other, nonreligious
objections to certain drugs) are not honored.  This is, of course, the
debate we've had many times on this Listserv between what we might call the
"modest" and "reobust" readings of *Lukumi*.

It's uncontested that if a pharmacy does not stock a drug, for a reason
that *satisfies *the "stocking rule," it has no obligation under Washington
law to *deliver *that drug to customers.  See WAC 246-869-010(e) (there's
no requirement of delivery due to "unavailability of [the] drug or device
despite good faith compliance with [the stocking rule]").   Therefore, the
real action is (or ought to be) with respect to the "stocking" rule itself,
which the plaintiffs have thus far failed to challenge.  (The pharmacies
aren't seeking the right not to deliver drugs that are on their
shelves--they want to be able not to stock ella and Plan B in the first
place.)

The Washington stocking rule reads as follows:  "The pharmacy must maintain
at all times a representative assortment of drugs in order to meet the
pharmaceutical needs of its patients."  That is to say, the stocking rule
appears to require a pharmacy to stock a drug if there's sufficient
consumer demand for it.  Or, put another way, perhaps a pharmacy is not
required to stock sufficient quantities of *every *drug that its clientele
might at any time be prescribed--that'd be unrealistic--but its stock must
be "representative" of its customers' needs.

*The stocking rule has been in place since 1967, was not promulgated in
order to target religion, and it admits of no exceptions.  *(Perhaps for
those reasons, the plaintiff pharmacies never mentioned the Stocking Rule
in any of their three complaints.)

The petitioners assert, as does Doug, that pharmacies have been violating
the stocking rule with impunity since 1967--by not stocking drugs that have
a low profit-margin, or that would actually cost* t*he pharmacies money.
But the State of Washington has never said that that practice, if it
exists, is permissible.  (Indeed, an agency guideline specifically excludes
the cost of a drug as a reason not to comply with the stocking
requirement.)  To be sure, the agency has rarely investigated alleged
violations of the stocking rule -- but that's because there haven't been
many complaints and *pharmacies generally have not announced that they
refuse to stock a drug* for which their is a consumer demand.

Stormans was a fairly unique case in that respect:  The pharmacy
publicly *announced
*that it was refusing to stock Ella and Plan B--which, naturally enough,
triggered consumer complaints.  Those complaints in turn triggered agency
investigations, but those investigations have *not *(not yet, anyway)
resulted in any sanctions against Stormans and other religious objectors.

Let's say, however, that discovery *did *reveal what the State here denies
-- that it has enforced a *de facto *exception to the stocking rule in
cases where the pharmacy in question would not realize a profit on a
particular drug, i.e., where it was not cost-effective.  Would that secular
exception, standing alone, trigger *Lukumi *strict scrutiny and, if so,
would the State satisfy that scrutiny, even though the State would reject
all other reasons for failing to stock, including but not limited to
religious reasons and other ethical and moral reasons?

I think that is, indeed, an interesting question.  But it's probably not
one raised by this case--and, in any event, it almost certainly is not
cert.-worthy.



On Tue, Jun 28, 2016 at 12:09 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> "[The Ninth Circuit] accepted without question the unwritten ban on
> religious refusals [to stock], and refused to acknowledge the equally
> unwritten permission for business refusals [to stock]."
>
> My understanding is that (i) the stocking rule on its face does not permit 
> *any
> *reasons for refusal to stock, other than a lack of demand among
> customers; but that (ii) in practice Washington has rarely if ever
> sanctioned any pharmacy for failing to stock any drug--*including the
> plaintiffs here*, who have not yet been sanctioned.
>
> Therefore the case is woefully premature:  If and when Washington
> sanctions Stormans for refusing to stock Ella or Plan B, and if and when
> Stormans sues to challenge this

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

Once again, Welsh, like Seeger, was construing a statute, not the FEC.

Sent from my iPhone

> On Jun 28, 2016, at 12:18 PM, Christopher Lund <l...@wayne.edu> wrote:
> 
> Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
> That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; 
> but both of them dissented in Welsh.
>  
> This seems a pretty open question to me.
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Tuesday, June 28, 2016 12:08 PM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>  
> From Frazee:
>  
> There is no doubt that “[o]nly beliefs rooted in religion are protected by 
> the Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
> 1430. Purely secular views do not suffice. United States v. Seeger, 380 U.S. 
> 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965);Wisconsin v. Yoder, 406 U.S. 205, 
> 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). 
>  
> From Yoder:
>  
> [T]o have the protection of the Religion Clauses, the claims must be rooted 
> in religious belief. Although a determination of what is a ‘religious' belief 
> or practice entitled to constitutional protection may present a most delicate 
> question,6 the very concept of ordered liberty precludes allowing every 
> person to make his own standards on matters of conduct in which society as a 
> whole has important interests. Thus, if the Amish asserted their claims 
> because of their subjective evaluation and rejection of the contemporary 
> secular values accepted by the majority, much as Thoreau rejected the social 
> values of his time and isolated himself at Walden Pond, their claims would 
> not rest on a religious basis. Thoreau's choice was philosophical and 
> personal rather than religious, and such belief does not rise to the demands 
> of the Religion Clauses.
>  
> On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. <con...@indiana.edu> 
> wrote:
> I don’t think this is obviously so, Marty.  Lukumi didn’t present this 
> question because a narrow sense of religion was clearly at issue.  I think 
> the constitutional definition of religion remains an open question, and the 
> resolution of that question could bear on the proper application of the 
> Lukumi analysis as to deliberate targeting as well as general applicability.
>  
> Dan
>  
> Daniel O. Conkle 
> Robert H. McKinney Professor of Law 
> Indiana University Maurer School of Law 
> Bloomington, Indiana  47405 
> (812) 855-4331 
> fax (812) 855-0555 
> e-mail con...@indiana.edu 
> 
>  
>  
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Tuesday, June 28, 2016 11:44 AM
> 
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>  
> Seeger provides a definition of "religion" for a particular statute.  I don't 
> think there's any dispute that the FEC -- and Lukumi -- adopts a narrower 
> view of what constitutes "religion."
>  
> On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. <con...@indiana.edu> 
> wrote:
> With respect to the issue of religious as opposed to other moral and ethical 
> objections:
>  
> Does it matter for purposes of the Lukumi analysis whether religious 
> exercise, as protected by the Free Exercise Clause, is defined narrowly and 
> traditionally or, instead, is defined broadly enough to include the exercise 
> of moral and ethical beliefs that are comparable to traditionally religious 
> beliefs?  Cf. Seeger.
>  
> Dan
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
> Sent: Tuesday, June 28, 2016 11:25 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>  
> The bulk of Justice Alito's dissent focuses on the argument Stormans made at 
> the beginning of its cert petition in support of summary reversal: the 
> pharmacy regulations amount to religious targeting akin to the targeting i

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

>From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by
the Free Exercise Clause,” *Thomas, supra,* 450 U.S., at 713, 101 S.Ct., at
1430.
<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1981114889=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=co_pp_sp_708_1430=document=DocumentItem=(sc.Search)#co_pp_sp_708_1430>
Purely
secular views do not suffice. *United States v. Seeger,* 380 U.S. 163, 85
S.Ct. 850, 13 L.Ed.2d 733 (1965)
<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1965125037=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=document=DocumentItem=(sc.Search)>
;*Wisconsin v. Yoder,* 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32
L.Ed.2d 15 (1972)
<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1972127114=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=co_pp_sp_708_1533=document=DocumentItem=(sc.Search)#co_pp_sp_708_1533>
.

>From Yoder:


[T]o have the protection of the Religion Clauses, the claims must be rooted
in religious belief. Although a determination of what is a ‘religious'
belief or practice entitled to constitutional protection may present a most
delicate question,6
<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1972127114=708=Ic1dba6f29c1e11d991d0cc6b54f12d4d=RP=document=DocumentItem=(sc.DocLink)#co_footnote_B00761972127114>
the
very concept of ordered liberty precludes allowing every person to make his
own standards on matters of conduct in which society as a whole has
important interests. Thus, if the Amish asserted their claims because of
their subjective evaluation and rejection of the contemporary secular
values accepted by the majority, much as Thoreau rejected the social values
of his time and isolated himself at Walden Pond, their claims would not
rest on a religious basis. Thoreau's choice was philosophical and personal
rather than religious, and such belief does not rise to the demands of the
Religion Clauses.


On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. <con...@indiana.edu>
wrote:

> I don’t think this is obviously so, Marty.  Lukumi didn’t present this
> question because a narrow sense of religion was clearly at issue.  I think
> the constitutional definition of religion remains an open question, and the
> resolution of that question could bear on the proper application of the
> Lukumi analysis as to deliberate targeting as well as general applicability.
>
>
>
> Dan
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, June 28, 2016 11:44 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> *Seeger *provides a definition of "religion" for a particular *statute*.
> I don't think there's any dispute that the FEC -- and *Lukumi* -- adopts
> a narrower view of what constitutes "religion."
>
>
>
> On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. <con...@indiana.edu>
> wrote:
>
> With respect to the issue of religious as opposed to other moral and
> ethical objections:
>
>
>
> Does it matter for purposes of the Lukumi analysis whether religious
> exercise, as protected by the Free Exercise Clause, is defined narrowly and
> traditionally or, instead, is defined broadly enough to include the
> exercise of moral and ethical beliefs that are comparable to traditionally
> religious beliefs?  Cf. Seeger.
>
>
>
> Dan
>
> 
>
> Daniel O. Conkle
>
> Robert H. McKinney Professor of Law
>
> Indiana University Maurer School of Law
>
> Bloomington, Indiana  47405
>
> (812) 855-4331
>
> fax (812) 855-0555
>
> e-mail con...@indiana.edu
>
> 
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Tuesday, June 28, 2016 11:25 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> The bulk of Justice Alito's dissent focuses on the argument Stormans made
> at the beginning of its cert petition in support of summary reversal: the
> pharmacy regulations amount to religious targeting akin to the targeting
> in Lukumi. (Marty notes below the central problem with this argument: 

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

eting, the inclusion of one or more secular
> exemptions in a law triggers a constitutional requirement that religious
> exemptions be made when requested. Section III.B. of the dissent indicates
> that three justices believe the answer is "yes" if the religious exemptions
> would not undermine the state's interest in the law more than the existing
> exemptions.
>
>
>
> - Jim
>
>
>
>
>
> On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> This case is *very *confused, and complicated, as a factual matter, by
> virtue of the interactions of two different Washington regulations--the
> "Stocking" rule and the "Delivery" rule--and the fact that the State has
> not enforced either rule against Storman's or any other religious
> objector.  For what it's worth, I believe Alito's description of the
> facts--his treatment of the distinct operations of, and practices under,
> the two rules--is incomplete and misleading, for reasons I'd be happy to
> discuss offline.  But that's really beside the point now that the Court has
> denied cert.  (It would have created a nightmare of untangling had they
> granted cert.)
>
>
>
> For now, I would just point out the following:  Even on Alito's own
> account of the facts and the Washington regulations, the State does not
> "uniquely burden religiously motivated conduct."  This is the telling
> passage in his dissent:
>
>
>
> While the regulations themselves do not expressly single out *religiously
> motivated* referrals, the Board’s guidance accompanying the regulations
> does: “The rule,” it warns, “does not allow a pharmacy to refer a patient
> to another pharmacy to avoid filling the prescription *due to moral or
> ethical objections*.” SER 1248 (emphasis added).
>
>
>
> Religious objections to contraception, in other words, are not "uniquely
> burdened," even on Alito's view of the case; instead, they are--at 
> *worst*--treated
> exactly the same as other "moral or ethical objections."
>
>
>
>
>
> On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> 15-page Alito dissent from denial, joined by Roberts and Thomas:
>
>
>
> http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf
>
>
>
> On Thu, Jun 2, 2016 at 1:20 AM, James Oleske <jole...@lclark.edu> wrote:
>
> A quick update on the petition in Stormans. After the petition was
> relisted for conference several times, the lower court record was requested
> on May 19 and received on May 26, and the petition is back on the schedule
> for tomorrow's conference (June 2).
>
>
>
> As I've said before, I think some of the legal arguments made in the
> petition are cert worthy. But the Ninth Circuit decided the case by
> rejecting a factual predicate for those arguments -- a predicate that was
> central to the district court's decision in favor of Stormans. Which might
> explain the record request.
>
>
>
> In any event, if cert is granted, this has the makings of a landmark free
> exercise case.
>
>
>
> - Jim
>
>
>
> On Mon, Jan 4, 2016 at 11:34 PM, James Oleske <jole...@lclark.edu> wrote:
>
> On Monday, Stormans Inc. -- which operates a pharmacy in Washington State
> -- filed a cert. petition seeking review of the Ninth Circuit's decision in 
> *Stormans,
> Inc. v. Wiesman*. As described more fully below, Stormans is challenging
> state regulations that effectively require its pharmacy to stock and
> dispense emergency contraception, a practice that is contrary the religious
> beliefs of Stormans' owners. The petition is available here:
>
>
>
>
> http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf
>
>
>
> In my view, the arguments made in the Stormans case concern some of the
> most interesting and unresolved aspects of the Court's post-Smith free
> exercise doctrine. If engaged on the merits, the arguments in Stormans
> would require the Court to clarify what type and what degree of secular
> exemptions to a law, short of the religious gerrymandering in Lukumi, are
> sufficient to render a law non-neutral and/or non-generally applicable, and
> thus subject to heightened scrutiny. Given that different circuits have
> taken different approaches to the issue, eventually the Court will have to
> step in. And Stormans argues that this is an ideal case in which to do so.*
>
>
>
> The principal challenge Stormans faces in obtaining Supreme Court review
> is that the Ninth Circuit decided the case by rejecting a factual predicate
> for the selective-exemption argument. Specific

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

*Seeger *provides a definition of "religion" for a particular *statute*.  I
don't think there's any dispute that the FEC -- and *Lukumi* -- adopts a
narrower view of what constitutes "religion."

On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. <con...@indiana.edu>
wrote:

> With respect to the issue of religious as opposed to other moral and
> ethical objections:
>
>
>
> Does it matter for purposes of the Lukumi analysis whether religious
> exercise, as protected by the Free Exercise Clause, is defined narrowly and
> traditionally or, instead, is defined broadly enough to include the
> exercise of moral and ethical beliefs that are comparable to traditionally
> religious beliefs?  Cf. Seeger.
>
>
>
> Dan
>
> 
>
> Daniel O. Conkle
>
> Robert H. McKinney Professor of Law
>
> Indiana University Maurer School of Law
>
> Bloomington, Indiana  47405
>
> (812) 855-4331
>
> fax (812) 855-0555
>
> e-mail con...@indiana.edu
>
> 
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Tuesday, June 28, 2016 11:25 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> The bulk of Justice Alito's dissent focuses on the argument Stormans made
> at the beginning of its cert petition in support of summary reversal: the
> pharmacy regulations amount to religious targeting akin to the targeting
> in Lukumi. (Marty notes below the central problem with this argument: the
> regulations actually cover all moral and ethical objections, not just
> religious objections. Thus, the pharmacy owner who has secular ethical
> objections to carrying drugs tested on animals or produced in countries
> with records of human rights abuses is no more entitled to an exemption
> under the regulations than are the owners of Stormans.)
>
>
>
> Notwithstanding the dissent's primary focus on the religious-targeting
> argument, there is one section of the dissent (III.B) indicating how the
> three dissenting justices might come down on the broader
> "selective-exemption" issue that has split the circuits: whether, in the
> absence of a religious targeting, the inclusion of one or more secular
> exemptions in a law triggers a constitutional requirement that religious
> exemptions be made when requested. Section III.B. of the dissent indicates
> that three justices believe the answer is "yes" if the religious exemptions
> would not undermine the state's interest in the law more than the existing
> exemptions.
>
>
>
> - Jim
>
>
>
>
>
> On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> This case is *very *confused, and complicated, as a factual matter, by
> virtue of the interactions of two different Washington regulations--the
> "Stocking" rule and the "Delivery" rule--and the fact that the State has
> not enforced either rule against Storman's or any other religious
> objector.  For what it's worth, I believe Alito's description of the
> facts--his treatment of the distinct operations of, and practices under,
> the two rules--is incomplete and misleading, for reasons I'd be happy to
> discuss offline.  But that's really beside the point now that the Court has
> denied cert.  (It would have created a nightmare of untangling had they
> granted cert.)
>
>
>
> For now, I would just point out the following:  Even on Alito's own
> account of the facts and the Washington regulations, the State does not
> "uniquely burden religiously motivated conduct."  This is the telling
> passage in his dissent:
>
>
>
> While the regulations themselves do not expressly single out *religiously
> motivated* referrals, the Board’s guidance accompanying the regulations
> does: “The rule,” it warns, “does not allow a pharmacy to refer a patient
> to another pharmacy to avoid filling the prescription *due to moral or
> ethical objections*.” SER 1248 (emphasis added).
>
>
>
> Religious objections to contraception, in other words, are not "uniquely
> burdened," even on Alito's view of the case; instead, they are--at 
> *worst*--treated
> exactly the same as other "moral or ethical objections."
>
>
>
>
>
> On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
> 15-page Alito dissent from denial, joined by Roberts and Thomas:
>
>
>
> http://www.supremecourt.gov/orders/courtorders/062816zr_29

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

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

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

While the regulations themselves do not expressly single out *religiously
motivated* referrals, the Board’s guidance accompanying the regulations
does: “The rule,” it warns, “does not allow a pharmacy to refer a patient
to another pharmacy to avoid filling the prescription *due to moral or
ethical objections*.” SER 1248 (emphasis added).

Religious objections to contraception, in other words, are not "uniquely
burdened," even on Alito's view of the case; instead, they are--at
*worst*--treated
exactly the same as other "moral or ethical objections."



On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> 15-page Alito dissent from denial, joined by Roberts and Thomas:
>
> http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf
>
> On Thu, Jun 2, 2016 at 1:20 AM, James Oleske <jole...@lclark.edu> wrote:
>
>> A quick update on the petition in Stormans. After the petition was
>> relisted for conference several times, the lower court record was requested
>> on May 19 and received on May 26, and the petition is back on the schedule
>> for tomorrow's conference (June 2).
>>
>> As I've said before, I think some of the legal arguments made in the
>> petition are cert worthy. But the Ninth Circuit decided the case by
>> rejecting a factual predicate for those arguments -- a predicate that was
>> central to the district court's decision in favor of Stormans. Which might
>> explain the record request.
>>
>> In any event, if cert is granted, this has the makings of a landmark free
>> exercise case.
>>
>> - Jim
>>
>>
>> On Mon, Jan 4, 2016 at 11:34 PM, James Oleske <jole...@lclark.edu> wrote:
>>
>>> On Monday, Stormans Inc. -- which operates a pharmacy in Washington
>>> State -- filed a cert. petition seeking review of the Ninth Circuit's
>>> decision in *Stormans, Inc. v. Wiesman*. As described more fully below,
>>> Stormans is challenging state regulations that effectively require its
>>> pharmacy to stock and dispense emergency contraception, a practice that is
>>> contrary the religious beliefs of Stormans' owners. The petition is
>>> available here:
>>>
>>>
>>> http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf
>>>
>>> In my view, the arguments made in the Stormans case concern some of the
>>> most interesting and unresolved aspects of the Court's post-Smith free
>>> exercise doctrine. If engaged on the merits, the arguments in Stormans
>>> would require the Court to clarify what type and what degree of secular
>>> exemptions to a law, short of the religious gerrymandering in Lukumi, are
>>> sufficient to render a law non-neutral and/or non-generally applicable, and
>>> thus subject to heightened scrutiny. Given that different circuits have
>>> taken different approaches to the issue, eventually the Court will have to
>>> step in. And Stormans argues that this is an ideal case in which to do so.*
>>>
>>> The principal challenge Stormans faces in obtaining Supreme Court review
>>> is that the Ninth Circuit decided the case by rejecting a factual predicate
>>> for the selective-exemption argument. Specifically, the Ninth Circuit
>>> concluded that the state agency responsible for enforcing the regulations
>>> has never actually endorsed or approved any of the unwritten secular
>>> exemptions upon which Stormans placed principal reliance. According to the
>>> Ninth Circuit, the agency has a complaint-based enforcement process, no
>>> complaints have ever been filed against pharmacies that are engaging in the
>>> types of secular practices that Stormans claims are undermining the
>>> regu

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[Marty Lederman]

15-page Alito dissent from denial, joined by Roberts and Thomas:

http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf

On Thu, Jun 2, 2016 at 1:20 AM, James Oleske  wrote:

> A quick update on the petition in Stormans. After the petition was
> relisted for conference several times, the lower court record was requested
> on May 19 and received on May 26, and the petition is back on the schedule
> for tomorrow's conference (June 2).
>
> As I've said before, I think some of the legal arguments made in the
> petition are cert worthy. But the Ninth Circuit decided the case by
> rejecting a factual predicate for those arguments -- a predicate that was
> central to the district court's decision in favor of Stormans. Which might
> explain the record request.
>
> In any event, if cert is granted, this has the makings of a landmark free
> exercise case.
>
> - Jim
>
>
> On Mon, Jan 4, 2016 at 11:34 PM, James Oleske  wrote:
>
>> On Monday, Stormans Inc. -- which operates a pharmacy in Washington State
>> -- filed a cert. petition seeking review of the Ninth Circuit's decision in 
>> *Stormans,
>> Inc. v. Wiesman*. As described more fully below, Stormans is challenging
>> state regulations that effectively require its pharmacy to stock and
>> dispense emergency contraception, a practice that is contrary the religious
>> beliefs of Stormans' owners. The petition is available here:
>>
>>
>> http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf
>>
>> In my view, the arguments made in the Stormans case concern some of the
>> most interesting and unresolved aspects of the Court's post-Smith free
>> exercise doctrine. If engaged on the merits, the arguments in Stormans
>> would require the Court to clarify what type and what degree of secular
>> exemptions to a law, short of the religious gerrymandering in Lukumi, are
>> sufficient to render a law non-neutral and/or non-generally applicable, and
>> thus subject to heightened scrutiny. Given that different circuits have
>> taken different approaches to the issue, eventually the Court will have to
>> step in. And Stormans argues that this is an ideal case in which to do so.*
>>
>> The principal challenge Stormans faces in obtaining Supreme Court review
>> is that the Ninth Circuit decided the case by rejecting a factual predicate
>> for the selective-exemption argument. Specifically, the Ninth Circuit
>> concluded that the state agency responsible for enforcing the regulations
>> has never actually endorsed or approved any of the unwritten secular
>> exemptions upon which Stormans placed principal reliance. According to the
>> Ninth Circuit, the agency has a complaint-based enforcement process, no
>> complaints have ever been filed against pharmacies that are engaging in the
>> types of secular practices that Stormans claims are undermining the
>> regulations, and hence no exemptions for those practices can be said to
>> exist. In its petition, Stormans contends that the Ninth Circuit's
>> reasoning on this front is inconsistent with both Lukumi and the Third
>> Circuit's decision in the Tenafly Eruv Association case, but my initial
>> instinct is that the factual backdrops of the three cases are not nearly as
>> similar Stormans contends. The logical implication of Stormans' argument
>> seems to be that religiously motivated violations of laws must be excused
>> anytime the government uses a complaint-driven enforcement scheme and
>> complaints haven't been filed against some non-religiously motivated
>> violators, and that result does not seem to be a necessary result of either
>> Lukumi or Tenafly. In any event, it's not clear that this predicate issue
>> is particularly cert. worthy.
>>
>> * Stormans also argues that the Court could summarily reverse the Ninth
>> Circuit on the ground that the Washington State regulations amount to
>> religious targeting as bad as the religious gerrymandering in Lukumi. I'm
>> skeptical of this argument given that the Washington regulations apply
>> equally to secular moral objections to dispensing particular drugs (whether
>> it be emergency contraception or drugs produced in countries with
>> objectionable human rights practices or drugs tested on particular animals)
>> and religious moral objections.
>>
>> - Jim
>>
>>
>> On Thu, Jul 23, 2015 at 10:48 AM, James Oleske 
>> wrote:
>>
>>> Today, the Ninth Circuit issued its opinion in *Stormans, Inc. v.
>>> Wiesman*, a long-running case involving a pharmacy's free-exercise
>>> challenge to Washington State's requirement that pharmacies dispense all
>>> lawfully prescribed or approved drugs, including emergency contraception.
>>> The court ruled in favor of the state, holding that the state's rule was
>>> neutral and generally applicable and thus subject to only rational basis
>>> review. The pharmacy had argued that because the state's rule excuses
>>> failures to dispense for certain 

Suit challenging failure of USCCB to comply with legal requirements of funding programs

[Marty Lederman]

http://www.nytimes.com/2016/06/25/us/suit-challenges-us-over-abortions-and-birth-control-for-immigrant-minors.html

Here's the complaint:

https://www.aclu.org/sites/default/files/field_document/06.24.16_doc._1_complaint.pdf

I'm a bit confused by all of this, at least at first glance.

According to the complaint, the federal government is required by a
settlement agreement in an earlier case to provide emergency and routine
medical care, including family planning services, post-sexual assault care,
and abortions, to unaccompanied immigrant minors in its custody.  The
Office of Refugee Resettlement (“ORR”) issues grants to private entities,
including a number of religiously affiliated organizations, to help provide
these services.  And the ORR allegedly permits the USCCB and its
subgrantees, such as Catholic Charities, to perform these services
*without *providing information about, access to, or referrals for
contraception and abortion.

The ACLU has brought an *Establishment Clause *claim to challenge this
religious exemption.  The principal allegation (perhaps because of standing
constraints) appears to be about the use of taxpayer $$ for religious
activity.  That's a bit odd, though, since what the ACLU is really
complaining about is not any religious activity as such (e.g.,
proselytizing, prayer) by the subgrantees, but instead the *failure *of
grantees and subgrantees to offer legally required services.

I would think, then, that the principal issue is a statutory one--namely,
whether ORR has the authority to exempt grantees from these legal
requirements on religious grounds.  (There's no hint on the complaint or
the public accounts that the USCCB has sought or received a RFRA exemption,
which would raise OLC "World Vision" questions.)

If there any Establishment Clause questions here, they would appear to be
different from a "use of funds for religious activities" concern, namely:

(i) a possible *Larkin *delegation to the USCCB;

and

(ii) whether the third-party harms make this accommodation
unconstitutional, on a Geddicks/van Tassell/Schragger/Schwartzman/Tebbe
sort of theory.

Such constitutional questions need only be reached, however, if the agency
has a viable theory of why it has the authority to confer the exemptions in
the first instance.  Perhaps the ACLU doesn't have standing to raise the
statutory challenge; but the government itself presumably will seriously
consider that question in response to the suit.

Thoughts?
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Muhammad Ali, conscientious objection, and the Supreme Court’s struggle to understand “jihad” and “holy war”: The story of Cassius Clay v. United States

[Marty Lederman]

Thought this might be of interest to some on the List; among other things,
it raises an interesting question about the substance of the statutory
requirement, discussed in *Gillette*, that a C.O. had to be opposed to
participation in war "in any form"--namely, whether it encompasses someone
(Ali) who was, in theory, willing to fight in a "holy war" in the unlikely
event God called him to do so.

http://www.scotusblog.com/2016/06/muhammad-ali-conscientious-objection-and-the-supreme-courts-struggle-to-understand-jihad-and-holy-war-the-story-of-cassius-clay-v-united-states/
___
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.

The Bedford pool exemption--a collection of reactions

[Marty Lederman]

Well, I'm sure glad I asked about this case -- this has been a wonderfully
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the
sake of argument (and to clarify our analysis) a counterfactual, namely,
that this were a classic religious exemption:  On Mondays, Wednesdays and
Fridays from 9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45,
the Bedford pool is open only to women who have *religious *objections to
co-ed swimming.  Would that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be
able to use the pool during those eight hours of the week.  But that's
putting the cart before the horse.  Under governing doctrine, a
religion-only accommodation is ok only if it alleviates a significant
state-imposed burden on religious exercise.  Are the orthodox women
significantly burdened by the city's general rule that its pools are open
to the public at large?

Of course, that's a classic baselines dilemma.  On the one hand, one might
say:  Yes, because their access to a very valuable and universally
available public benefit is conditioned on their willingness to violate a
religious injunction.  Cf. *Sherbert*.  On the other hand, a city does
not *have
to *offer free swimming pools in the first instance, and such a gratuitous
"benefit" is a whole lot less important than the unemployment benefits at
issue in *Sherbert*.  Many people can and do fail to take advantage of
public pools, and their lives are not dramatically diminished as a result.
Unlike in *Sherbert*, the offer of this benefit is very unlikely to induce
anyone to violate religious injunctions.  Or, to put it slightly
differently, the "benefit" itself is access to a *public *pool (akin to a
public park or other place of public accommodation); orthodox women simply
wish that the city were also offering a *different *benefit, i.e., access
to *women-only *pools; and the failure of the state to offer that
alternative benefit cannot be viewed as a significant state-imposed *burden
*on religious exercise.

*If *the "correct" answer is "yes, opening the pool to the public at large
does significantly burden orthodox women's religion," *then *we would need
to address--to weigh--the harm to the other NYC residents who are excluded
during the eight hours.  But here's the interesting point (to me, anyway):
 It's difficult to disaggregate the two assessments of "harm" on either
side of the balance.  If you think that there is no significant harm to the
orthodox women in not being able to use the pool *at all*, then, almost by
definition, there wouldn't be any significant harm to the excluded
residents in being closed off from swimming for eight hours a week.  The
exemption might still be unconstitutional in such a case, because of the
absence of state-imposed harm to religion; but that wouldn't be because of
harm to third parties.  If, by contrast, you think that the rest of the
Bedford residents are materially harmed by being excluded for eight hours,
then wouldn't you have to concede that the state has harmed the orthodox
women by imposing a condition that makes them unable to enjoy the pool at
all?  In the latter case, with harm on both sides, the harm to the women if
the exemption is denied would appear to be greater.  And therefore *if *a
"balance" of harms were relevant to the EC equation (concededly a
contested, and complicated, assumption, and one I am not necessarily
endorsing here), the harm to the women presumably would outweigh the harm
to other residents.

2.  OK, but, as several of you have noted, Bedford isn't the classic
accommodation case.  The exemption in question is not religion-specific --
on its face it benefits all women, whether they have a religious objection
or not.  Because of this, I agree there's a strong presumption that there's
no Establishment Clause problem, regardless of third-party harms.  Indeed,
expanding exemptions so that they are not religion-specific has long been
viewed as a way to *avoid *EC problems, even though such expansions
increase the harm to third parties.  Think of Justice Harlan's explanation
of the tax exemption in *Walz*; or the Court's expansion of the
conscientious exemption law in *Welsh *to avoid EC concerns.  The most
common example of this in recent years is vaccination laws:  Whereas a
purely religious exemption would likely violate the EC, most states allow
exemptions to any parents who have religious *or other *objections, and
that eliminates the constitutional problem, even as it increases the harm
(and idiocy) of the exemption.  Other examples:  Texas could have cured the
EC problem in *Texas Monthly *by expanding the exemption to secular
magazines.  Most abortion "conscience clauses" (e.g., affording physicians
the right to refuse involvement) also are not limited to religious
objections.  Etc.  This makes sense, because 

thoughts on constitutionality of single-sex hours for public pool?

[Marty Lederman]

permissible accommodation?

http://www.nytimes.com/2016/06/01/opinion/everybody-into-the-pool.html
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Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

a, 
> *Aftermath
> Gives New Confidence to Oklahomans*, J. Rec. (Okla. City), Apr. 19,
> 1996.
>
>
>
> Was the check that FEMA ultimately sent an Establishment Clause
> violation?  If the government gives funds for all property owners to
> rebuild following a terrorist attack, a hurricane, or whatever else, is the
> government obligated to exclude churches, on the ground that “We have a
> deep and abiding constitutional principle that the government may not pay
> to build houses of worship”?  What if the government gives funds for
> altering buildings to withstand earthquakes, and thus potentially saving
> lives of those in the buildings; would the government have to exclude
> churches?  Chip’s theory suggests that indeed the government has to leave
> the people who visit churches unprotected, even as it’s protecting everyone
> else.  That doesn’t seem right to me.
>
>
>
> Eugene
>
>
>
>
>
> Marty Lederman writes:
>
>
>
> Eugene:  Can you offer more details about who gets the EITC and when?
>
>
>
> In any event, given that it's a tax credit (and for individuals, at that),
> I assume that it does not entail the government sending a check to a
> church.  Rightly or wrongly, the Court has always treated tax benefits
> different from direct funding for purposes of the EC.  See Walz, Mueller,
> etc.  Moreover, it's not only the Court that has drawn that distinction;
> history has, too:  Whereas more than half the states have constitutional
> provisions prohibiting the expenditure of appropriated funds to churches,
> I'm not aware of any such tradition prohibiting tax benefits to religion,
> and it wouldn't surprise me if many states have provided such
> credits/deductions/etc., even while prohibiting direct funding.
>
>
>
> Even if the EC would not prohibit the particular grant to a church at
> issue in TLC--say, because of an unusual set of conditions applicable to
> that grant program--the principal question in the case would remain,
> namely, whether the longstanding, bright-line state constitutional
> provisions in question are unconstitutional, either on facially or "as
> applied" to any cases in which the EC would not itself prohibit the funding
> to churches.
>
>
>
> Samuel Brunson writes:
>
>
>
> Eugene, I don’t think your EITC example does the work you want it to do.
> Specifically, I’d dispute your assertion that it’s a salary supplement.
> It’s not. It’s a social safety net payment, only (for various political
> reasons) the amount is tied into an individual’s earning income.
>
>
>
> Certainly the EITC provides a refundable credit to ministers whose
> earnings fall within a particular range, but it provides that benefit to
> *anybody* whose earnings fall within the relevant range. But it’s not
> meant to supplement salary; rather, it’s intended to provide some minimum
> standard of living,
>
>
>
> I mean, if you really want to, you can argue that it economically
> functions to allow employers to underpay their employees. But in that
> regard, the EITC doesn’t function any differently than Medicaid and TANF
> and Section 8 vouchers and any other welfare program.
>
>
>
>
>
>
>
> On Sun, May 8, 2016 at 9:24 PM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>Well, let’s test that principle against paying the salaries
> of clergy in private faith communities, when it comes to an equal-treatment
> system.  I posted about this in January, but I don’t think there were any
> reactions to it:
>
>
>
> It turns out that the government actually does offer salary supplements
> for ministers, alongside other employees who earn under a threshold amount,
> via the Earned Income Tax Credit.  For instance, if a minister is a head of
> household, has two children, and earns $20,000 (think some assistant
> pastor, perhaps part-time, at some poor church), he will get a substantial
> net payment from the government.  That's taxpayer money going to subsidize
> ministers (again, alongside the other earners in the same boat).  Does this
> violate the Establishment Clause, on the grounds that the government is
> paying part of a clergy member’s salary?
>
>Note that this isn't a program that's available to
> everyone, the way police or fire protection is: it's only available to a
> minority of taxpayers.  Unconstitutional?
>
>
>
>As to the possibility of sect discrimination in Trinity
> Lutheran, it seems extremely remote to me – as we’ve discussed on the list,
> the program there (like the Earned Income Tax Credit) relies on objective
> factors.
>
>
>
>Eugene
>
>
>
> Chip Lupu wri

RFRA(s) in the new challenge to federal policy on transgender persons' use of restrooms

[Marty Lederman]

See pp 68-71:

http://www.adfmedia.org/files/SPPcomplaint.pdf
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Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

Please allow me to qualify that:   The principal issue in *TLC* is whether
the basic "no *direct funding *to churches" rule found in approximately
half of states' constitutions -- a rule that was, indeed, a bedrock
requirement of the Court's *Establishment Clause *doctrine until very
recently (and perhaps it still is, at least as a matter of precedent) -- is
now unconstitutional.



On Thu, May 5, 2016 at 1:20 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> I don't think I understand Mark's questions about weddings and generally
> applicable conditions on tax benefits, none of which are raised by *Trinity
> Lutheran*.  The principal issue here is whether the basic "no aid to
> churches" rule found in approximately half of states' constitutions -- a
> rule that was, indeed, a bedrock requirement of the Court's *Establishment
> Clause *doctrine until very recently (and perhaps it still is, at least
> as a matter of precedent) -- is now unconstitutional.
>
> On Thu, May 5, 2016 at 1:14 PM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
>> I suppose there's a baseline question here, along with an
>> unconstitutional conditions issue and probably other issues. Could a
>> synagogue be required to allow a wedding to be held on its property between
>> a Jew and a non-Jew, as a condition of receiving protection of its property
>> by a fire department? (I realize that not all synagogues would oppose such
>> a mixed marriage.) Or of receiving a building permit on an equal basis with
>> other organizations (absent RLUIPA)? Freedom of religion (along with other
>> freedoms) means little if the ordinary benefits of our society can be
>> denied to a person or group because of the exercise of that freedom. The
>> Bob Jones case is either an outlier or an example of a benefit (tax
>> treatment as a charity) that is not an ordinary benefit.
>>
>> We were all assured that the same-sex marriage issue could never be the
>> basis for application of Bob Jones. That assurance seems, in Nixonian
>> terms, to have become inoperative.
>>
>> Of course a person or group that receives benefits from a government
>> ordinarily does not as a result become a state actor for equal protection
>> purposes; I assume no one is arguing to the contrary, absent a government
>> function or symbiosis concern.
>>
>> Mark
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>>
>> Sent from my iPad
>>
>> On May 5, 2016, at 9:33 AM, Marty Lederman <lederman.ma...@gmail.com>
>> wrote:
>>
>> As I understood Michael's observation, it was that the topside briefs in 
>> *Trinity
>> Lutheran* argue at great length that churches, as such, can virtually
>> never be disfavored vis-a-vis similarly situated secular institutions,
>> under both the Free Exercise and Equal Protection Clauses -- whereas the
>> writers of those briefs would, of course, strongly argue that a legislature
>> generally can, and sometimes must, treat churches *more favorably* than
>> such secular institutions.  His fear, as I understood it (but perhaps I
>> misunderstood him), was that the emphasis on formal equality in the briefs
>> might prompt the Court to settle upon a holding closer to strict formal
>> equality than it has ever previously announced -- which could be damaging
>> to claims for permissive accommodations (akin to the fears raised by the
>> "HHS can't favor churches" argument of the petitioners in *Zubik*).
>>
>> On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene <vol...@law.ucla.edu>
>> wrote:
>>
>>> Hasn't that ship sailed already?  We know from Bob Jones that
>>> religious universities are subject to loss of their charitable tax
>>> exemption if they discriminate, and that the government indeed can and does
>>> use the threat of withdrawing funds as a means for changing church policy.
>>> Maybe in some super-pure world whether religious institutions didn't even
>>> get tax exemptions, they could resist such restrictions.  But even there,
>>> of course, the government would have broad power to impose restrictions,
>>> just in its capacity as sovereign and even without funding; recall, for
>>> instance, the New Jersey wedding venue case, where a church-owned venue was
>>> held subject to antidiscrimination law even without any funding hook.
>>>
>>> Surrendering any Free Exercise Clause claims to equal treatment
>>> in funding, as a means of trying to strengthen their claims to autonomy,
>>> would be a poor choice for churches, I

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

As I understood Michael's observation, it was that the topside briefs
in *Trinity
Lutheran* argue at great length that churches, as such, can virtually never
be disfavored vis-a-vis similarly situated secular institutions, under both
the Free Exercise and Equal Protection Clauses -- whereas the writers of
those briefs would, of course, strongly argue that a legislature generally
can, and sometimes must, treat churches *more favorably* than such secular
institutions.  His fear, as I understood it (but perhaps I misunderstood
him), was that the emphasis on formal equality in the briefs might prompt
the Court to settle upon a holding closer to strict formal equality than it
has ever previously announced -- which could be damaging to claims for
permissive accommodations (akin to the fears raised by the "HHS can't favor
churches" argument of the petitioners in *Zubik*).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene  wrote:

> Hasn't that ship sailed already?  We know from Bob Jones that
> religious universities are subject to loss of their charitable tax
> exemption if they discriminate, and that the government indeed can and does
> use the threat of withdrawing funds as a means for changing church policy.
> Maybe in some super-pure world whether religious institutions didn't even
> get tax exemptions, they could resist such restrictions.  But even there,
> of course, the government would have broad power to impose restrictions,
> just in its capacity as sovereign and even without funding; recall, for
> instance, the New Jersey wedding venue case, where a church-owned venue was
> held subject to antidiscrimination law even without any funding hook.
>
> Surrendering any Free Exercise Clause claims to equal treatment in
> funding, as a means of trying to strengthen their claims to autonomy, would
> be a poor choice for churches, I think.  Those who want to impose
> antidiscrimination laws on churches and church-owned organizations
> generally aren't terribly interested in giving churches such autonomy,
> whether or not churches get equal access to generally available benefits.
>
> Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> > Sent: Thursday, May 05, 2016 8:47 AM
> > To: Law & Religion issues for Law Academics 
> > Subject: Trinity Lutheran Church - will churches have to extend "equal
> > protection" to all when it comes to use?
> >
> > In reading the briefs on the Trinity Lutheran Church case, I see a lot
> of reference
> > to churches being denied "equal protection" when state laws specifically
> prohibit
> > them from participating in otherwise neutral state aid programs that are
> > available to other civic institutions. Yet churches often vigorously
> argue that
> > they are exempt from "equal protection" when it comes to access to their
> > facilities.
> >
> > But in turn, let's say that Trinity wins the case - does that mean that
> churches
> > that receive the funding could be subject to discrimination claims
> brought by
> > citizens who are prohibited from accessing the infrastructure, or are
> > discriminated against while on the infrastructure, because the church
> teaches
> > against their protected class (i.e. religion, gender, sexual
> orientation, etc.)?
> >
> > I'm thinking that churches that argue for equal protection when it comes
> to
> > compelling state funding of their institutions, and claim that they
> should be on
> > an equal footing when it comes to similar secular civic organizations,
> should
> > recognize that civic organizations are also held to a higher standard
> when it
> > comes to discrimination claims.
> >
> > Churches that receive funding and simultaneously seek to reserve the
> right to
> > discriminate should expect that they will be held to the same
> non-discrimination
> > standards as other civic organizations as a condition of receiving such
> funding
> > and that they will need to take "equal protection" into account when it
> comes to
> > people and other organizations which seek to access and use churches'
> state-
> > funded infrastructure.
> >
> > Put simply, could Trinity Lutheran Church be a Trojan Horse?
> >
> > I would be interested in your thoughts.
> >
> > Michael Peabody, Esq.
> > ReligiousLiberty.TV
> > ___
> > To post, send message to Religionlaw@lists.ucla.edu To subscribe,
> unsubscribe,
> > change options, or get password, see http://lists.ucla.edu/cgi-
> > bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be viewed as
> private.
> > Anyone can subscribe to the list and read messages that are posted;
> people can
> > read the Web archives; and list members can (rightly or wrongly) forward
> the
> > messages to others.
> ___
> 

Re: State law question raised by Trinity Lutheran Church

[Marty Lederman]

Thanks, Roger.  I found it now.  It included several provisions I did not
have on my list, and did not include others that I did have; so it's very
helpful, thanks.

On Sun, May 1, 2016 at 7:12 PM, Roger Severino <rseveri...@hotmail.com>
wrote:

> I pasted the link from my phone so that may be the issue. When I go here
> http://www.becketfund.org/blaineamendments/ I can access the links pasted
> below (taken from the Becket Fund website).
>
>
> Click on the links below to view each state’s Blaine Amendment and related
> laws and decisions. Neither the state-specific pages, nor any other part of
> this website, intends to or actually does provide legal advice.
> Alabama <http://www.becketfund.org/blaine_posts/alabama/>
> Kansas <http://www.becketfund.org/blaine_posts/kansas/>
> North Dakota <http://www.becketfund.org/blaine_posts/north-dakota/>
> Alaska <http://www.becketfund.org/blaine_posts/alaska/>
> Kentucky <http://www.becketfund.org/blaine_posts/kentucky/>
> Ohio <http://www.becketfund.org/blaine_posts/ohio/>
> Arizona <http://www.becketfund.org/blaine_posts/arizona/>
> Massachusetts <http://www.becketfund.org/blaine_posts/massachusetts/>
> Oklahoma <http://www.becketfund.org/blaine_posts/oklahoma/>
> California <http://www.becketfund.org/blaine_posts/california/>
> Michigan <http://www.becketfund.org/blaine_posts/michigan/>
> Oregon <http://www.becketfund.org/blaine_posts/oregon/>
> Colorado <http://www.becketfund.org/blaine_posts/colorado/>
> Minnesota <http://www.becketfund.org/blaine_posts/minnesota/>
> Pennsylvania <http://www.becketfund.org/blaine_posts/pennsylvania/>
> Delaware <http://www.becketfund.org/blaine_posts/delaware/>
> Mississippi <http://www.becketfund.org/blaine_posts/mississippi/>
> South Carolina <http://www.becketfund.org/blaine_posts/south-carolina/>
> District of Columbia
> <http://www.becketfund.org/blaine_posts/district-of-columbia/>
> Missouri <http://www.becketfund.org/blaine_posts/missouri/>
> South Dakota <http://www.becketfund.org/blaine_posts/south-dakota/>
> Georgia <http://www.becketfund.org/blaine_posts/georgia/>
> Montana <http://www.becketfund.org/blaine_posts/montana/>
> Texas <http://www.becketfund.org/blaine_posts/texas/>
> Hawaii <http://www.becketfund.org/blaine_posts/hawaii/>
> Nebraska <http://www.becketfund.org/blaine_posts/nebraska/>
> Utah <http://www.becketfund.org/blaine_posts/utah/>
> Idaho <http://www.becketfund.org/blaine_posts/idaho/>
> Nevada <http://www.becketfund.org/blaine_posts/nevada/>
> Virginia <http://www.becketfund.org/blaine_posts/virginia/>
> Illinois <http://www.becketfund.org/blaine_posts/illinois/>
> New Hampshire <http://www.becketfund.org/blaine_posts/new-hampshire/>
> Washington <http://www.becketfund.org/blaine_posts/washington/>
> Indiana <http://www.becketfund.org/blaine_posts/indiana/>
> New Mexico <http://www.becketfund.org/blaine_posts/new-mexico/>
> Wisconsin <http://www.becketfund.org/blaine_posts/wisconsin/>
> Iowa <http://www.becketfund.org/blaine_posts/iowa/>
> New York <http://www.becketfund.org/blaine_posts/new-york/>
> Wyoming <http://www.becketfund.org/blaine_posts/wyoming/>
> Kansas <http://www.becketfund.org/blaine_posts/kansas/>
>
>
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu <
> religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> lederman.ma...@gmail.com>
> *Sent:* Saturday, April 30, 2016 4:27 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: State law question raised by Trinity Lutheran Church
>
> Unless I'm missing something, that page doesn't even have cites or links
> to the provisions analogous to the Blaine amendment (dealing with schools),
> let alone to the provisions akin to those at issue in Missouri,
> which--unlike the Blaine Amendment--expressly prohibit funding of churches
> and religious institutions.
>
> On Sat, Apr 30, 2016 at 4:22 PM, Roger Severino <rseveri...@hotmail.com>
> wrote:
>
>> Try this link. http://www.becketfund.org/blaineamendments/#states
>>
>>
>>
>> On Apr 30, 2016, at 09:07, Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
>> wrote:
>>
>> I think there's a compilation on the Becket Fund website. There are a lot
>> more little Blaine Amendments than your list, but they are not all the
>> same, and maybe a lot of them don't meet your criterion of absoluteness.
>>
>> Douglas Laycock
>> Robert E. Scott Distinguished Professor of Law
>> University of Vi

Re: State law question raised by Trinity Lutheran Church

[Marty Lederman]

Unless I'm missing something, that page doesn't even have cites or links to
the provisions analogous to the Blaine amendment (dealing with schools),
let alone to the provisions akin to those at issue in Missouri,
which--unlike the Blaine Amendment--expressly prohibit funding of churches
and religious institutions.

On Sat, Apr 30, 2016 at 4:22 PM, Roger Severino <rseveri...@hotmail.com>
wrote:

> Try this link. http://www.becketfund.org/blaineamendments/#states
>
>
>
> On Apr 30, 2016, at 09:07, Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
> wrote:
>
> I think there's a compilation on the Becket Fund website. There are a lot
> more little Blaine Amendments than your list, but they are not all the
> same, and maybe a lot of them don't meet your criterion of absoluteness.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Caroline Abbott [
> czhabb...@gmail.com]
> *Sent:* Saturday, April 30, 2016 8:52 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: State law question raised by Trinity Lutheran Church
>
> Oklahoma State Constitution, Article II Section 5.
> On Apr 30, 2016 7:32 AM, "Marty Lederman" <lederman.ma...@gmail.com
> <http://redir.aspx?REF=7TY-AGLRbzDPV58nOsn1kwvE2WJ5_063IHkiY83Wl0nLybMo-HDTCAFtYWlsdG86bGVkZXJtYW4ubWFydHlAZ21haWwuY29t>>
> wrote:
>
>> Does anyone know of a good, authoritative source for a listing of all
>> states that have a constitutional provision (or a statute) like those in
>> Missouri that categorically forbid the payment of public funds, or
>> appropriations, to churches, as such, to "religious institutions," or
>> something similar?
>>
>> I believe there are or were such provisions in AZ, CA, CO, DC, FL, GA,
>> ID, IL, IN, MO, OR, and WA.  Am I missing any?
>>
>> Thanks
>>
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> <http://redir.aspx?REF=pO6Dl9CZqXtbyEihPHusThchnyPf48DR3awBedd5lMTLybMo-HDTCAFtYWlsdG86UmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.>
>> To subscribe, unsubscribe, change options, or get password, see
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>>
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State law question raised by Trinity Lutheran Church

[Marty Lederman]

Does anyone know of a good, authoritative source for a listing of all
states that have a constitutional provision (or a statute) like those in
Missouri that categorically forbid the payment of public funds, or
appropriations, to churches, as such, to "religious institutions," or
something similar?

I believe there are or were such provisions in AZ, CA, CO, DC, FL, GA, ID,
IL, IN, MO, OR, and WA.  Am I missing any?

Thanks
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Trinity Lutheran Church's opening brief

[Marty Lederman]

http://www.adfmedia.org/files/TrinityLutheranPetitionersBrief.pdf

On Fri, Jan 15, 2016 at 5:15 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> On first glance, this has the potential to be a huge case.  Not only will
> it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
> whether *Locke* even survives the departure of Rehnquist and O'Connor) on
> the Free Exercise side, but it also is the first SCOTUS case in 16 years --
> since *Mitchell v. Helms *-- implicating whether and under what
> circumstances a state can offer selective, discretionary "direct funding"
> to a religious institution . . . indeed, to a church itself!
>
> Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
> "special dangers associated with direct money grants to religious
> institutions," and the Court's "concern with direct monetary aid is based
> on more than just diversion. In fact, the most important reason for
> according special treatment to direct money grants is that this form of aid
> falls precariously close to the original object of the Establishment
> Clause's prohibition."
>
> It'd be quite something if the Court moved from the current view that such
> funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, the SOC
> opinion in *Mitchell*) to the view that it's constitutionally required
> (i.e., that the state can't discriminate against the church as recipient of
> the direct aid); but in light of the composition of the current Court,
> that's a very real possibility.
>
> In theory, at least, all three dispositions are in play:
>
> i.  Missouri must fund the church
> ii.  Missouri can't fund the church
> iii. Missouri has discretion to go either way (which in this case would
> mean no funding, per the Missouri Constitution)
>
> If I had to guess, I'd say (ii) is the least likely outcome, even though
> that's been the governing law for many decades.
>
> On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
> howard.fried...@utoledo.edu> wrote:
>
>> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
>> at
>> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
>>
>>
>> Howard Friedman
>>
>> ___
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>> Please note that messages sent to this large list cannot be viewed as
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>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>
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Re: Understanding the Zubik supplemental briefs

[Marty Lederman]

sorry, meant this one:

http://balkin.blogspot.com/2016/04/making-sense-of-supplemental-filings-in.html

On Thu, Apr 14, 2016 at 11:57 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

>
> http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html
>
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Understanding the Zubik supplemental briefs

[Marty Lederman]

http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html
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Re: questions re zubik oral argument

[Marty Lederman]

As for the first question, I think you're onto something:  If the
government set up a Title X clinic in a retirement home run by Little
Sisters, despite the loud objections of Little Sisters, I doubt many people
would think Little Sisters was complicit in the use of the birth control
distributed there. Virtually everyone would, instead, understand that the
government and the users of the contraceptives, not Little Sisters, were
responsible.  And I doubt that Catholic doctrine would conclude otherwise.

Even so, Paul Clement thought (probably correctly) that he would get a lot
of mileage from the hypothetical because the Justices presumably would view
such a commandeering of the retirement homes as deeply
insensitive--outrageous, even, and objectionable on all sorts of grounds.
That might be sufficient to establish a "substantial burden" of religious
exercise even if it didn't make Little Sisters morally complicit.  (I can't
think of any analogous Free Exercise/RFRA/RLUIPA cases off hand.)

As for your second question, there was laughter in the courtroom because
the Chief Justice was so animated in his interjection.  But trust me, not
everyone present was laughing.  See
http://balkin.blogspot.com/2016/03/the-zubik-oral-argument-part-ii-is.html,
and my brief and article cited therein.



On Sat, Apr 9, 2016 at 4:49 PM, Case, Mary Anne 
wrote:

> I’ve had the following questions about the Zubik oral argument which I’m
> hoping the list can help with, since the passage of time has not led me to
> what I assume are obvious answers:
>
>
>
> 1)  Why does everyone on the Court seem so blithely to agree with
> Paul Clement that for the government to take over a room in the Little
> Sisters’ facility to operate a Title X clinic, even if they paid market
> price for the room, would of course be impermissible?  Couldn’t such a
> government action be seen as a taking for public use with just
> compensation?  Are RFRA and/or RLUIPA thought more generally to protect
> religiously motivated property owners from what would otherwise be
> permissible takings?  If so, are there cases? And specifically with respect
> to access to contraception, might it not sometimes be the less restrictive
> alternative for a government, for example, to use eminent domain to take
> over space in, for example, a Catholic health care facility, in which
> medical goods and services which the facility objects to providing might be
> made available?
>
> 2)  When Roberts says, “Well, the way constitutional objections work
> is you might have to change current law,”  why is the response merely
> “laughter” rather than the observation that a RFRA objection is not a
> constitutional objection?
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> ___
> 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
>
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> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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CTA10 kicks "Sister Wives" challenge to Utah bigamy law on mootness grounds

[Marty Lederman]

after the Utah County Attorney’s Office adopted a policy under which the
Utah County Attorney will bring bigamy prosecutions only against those who
(1) induce a partner to marry through misrepresentation or (2) are
suspected of committing a collateral crime such as fraud or abuse.

http://www.politico.com/f/?id=0154-0646-def3-a35e-5ef7c60d0002
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Re: questions re zubik oral argument

[Marty Lederman]

Eugene writes:

2.  Zubik, like other RFRA cases, are – at least ostensibly – about
implementing Congress’s will, including its will in enacting RFRA.  But
Congress, when it enacted RFRA, expressly took the view that religious
accommodation claims should be treated as akin to constitutional objections
(since it disagreed with the majority opinion in Smith).  So “the way
constitutional objections work is you might have to change current law” was
likely intended (and understood) as shorthand for (a) the way
constitutional objections work is that you might have to change current
law, (b) Congress meant to incorporate a constitutional-objection way of
thinking into RFRA, and (c) RFRA objections thus work the same way.



This would all be correct if only we switched out "pre-Smith Free Exercise"
for "constitutional."  The way *some *constitutional objections work is
that "you might have to change current law"--think, for instance, of facial
challenges to laws that discriminate on the basis of race, religion, or
speech content, such as *Lukumi *or *Ashcroft v. ACLU*.


But that was *not *how pre-*Smith *Free Exercise doctrine worked.  And *that
*doctrine--not, e.g., the doctrine governing content-based speech
statutes--was the discrete jurisprudence of constitutional law that
Congress incorporated into RFRA.


This is the principal argument in our amicus brief and in my recent paper:


http://www.scotusblog.com/wp-content/uploads/2016/02/02.17.16_amicus_brief_in_support_of_respondents-_religious_liberty_scholars.pdf


http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf




On Sun, Apr 10, 2016 at 5:47 PM, Volokh, Eugene  wrote:

> Mary Anne Case asked:
>
>
>
> 1) Why does everyone on the Court seem so blithely to agree with Paul
> Clement that for the government to take over a room in the Little Sisters’
> facility to operate a Title X clinic, even if they paid market price for
> the room, would of course be impermissible?  Couldn’t such a government
> action be seen as a taking for public use with just compensation?  Are RFRA
> and/or RLUIPA thought more generally to protect religiously motivated
> property owners from what would otherwise be permissible takings?  If so,
> are there cases? And specifically with respect to access to contraception,
> might it not sometimes be the less restrictive alternative for a
> government, for example, to use eminent domain to take over space in, for
> example, a Catholic health care facility, in which medical goods and
> services which the facility objects to providing might be made available?
>
>
>
> 2) When Roberts says, “Well, the way constitutional objections work is you
> might have to change current law,”  why is the response merely “laughter”
> rather than the observation that a RFRA objection is not a constitutional
> objection?
>
>
>
> Two quick reactions:
>
>
>
> 1.  I think that RFRA may well protect religiously motivated property
> owners from what would otherwise be permissible takings.  Indeed, one of
> the few *Sherbert/Yoder*-era appellate court victories (however
> tentative) for a religious exemption claim was *Pillar of Fire v. Denver
> Urban Renewal Authority*, 509 P.2d 1250 (Colo. 1973), which held that a
> church might be able to prevail under the Free Exercise Clause in its
> challenge to a government action condemning the church that formed the
> birthplace of plaintiff’s religious denomination.  I recognize, though,
> that this sort of claim (our property is of special religious significance
> to us) may be different, for substantial burden purposes, from the claim
> contemplated by the question (we don’t want our property used for sinful
> purposes, even if it’s taken by the government).
>
>
>
> 2. * Zubik*, like other RFRA cases, are – at least ostensibly – about
> implementing Congress’s will, including its will in enacting RFRA.  But
> Congress, when it enacted RFRA, expressly took the view that religious
> accommodation claims should be treated as akin to constitutional objections
> (since it disagreed with the majority opinion in *Smith*).  So “the way
> constitutional objections work is you might have to change current law” was
> likely intended (and understood) as shorthand for (a) the way
> constitutional objections work is that you might have to change current
> law, (b) Congress meant to incorporate a constitutional-objection way of
> thinking into RFRA, and (c) RFRA objections thus work the same way.
>
>
>
> Eugene
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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>
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> private.  Anyone can subscribe to the list and read messages that are
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> wrongly) forward the messages to 

Zubik oral argument

[Marty Lederman]

I've published a couple of posts on the argument.

The first

explains why the case (not surprisingly) is likely to turn on the "least
restrictive means" inquiry, and on why the "hijacking the plan" metaphor is
inapt.

The second

discusses why the alternative option floated at argument -- subsidizing the
availability of "stand-alone" contraception "plans" on an exchange for the
women who work for objecting organizations -- is not a less restrictive
means for RFRA purposes.  It also addresses a couple of the arguments that
Michael McConnell posted yesterday on Eugene's blog.

I'd very much welcome any reactions/thoughts, thanks.
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Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

AG Cooper will not defend--he'll argue that it's unconstitutional:

http://www.wral.com/ag-cooper-hb2-a-national-embarassment-/15606882/

He says that the governor, legislature, etc., can hire outside counsel to
defend.



On Tue, Mar 29, 2016 at 10:29 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> The North Carolina bill is here:
>
> http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf
>
> It is not in any sense a religious freedom bill. None of its provisions
> are tied in any way to religious objections. It prohibits discrimination in
> public accommodations on the basis of race, color, religion, national
> origin, and biological sex, omitting sexual orientation and gender
> identity, and explicitly preempts any local ordinances on discrimination in
> public accommodations. It requires that multiple occupancy bathrooms and
> changing rooms be designated for a single biological sex, and requires that
> all persons use the rooms designated for their biological sex, without
> regard to the sex they identify with. It preempts all local ordinances
> regulating any aspect of compensation of employees.
>
> None of these provisions depends in any way on conscientious objection or
> burdens on the exercise of religion. This is an anti-gay law, not a
> religious liberty law. This actually does what people have falsely accused
> state RFRAs of doing -- it prevents the enforcement of local laws on sexual
> orientation discrimination.
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [
> paul.finkel...@yahoo.com]
> *Sent:* Tuesday, March 29, 2016 12:56 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
> Doug:
>
> I defer to your knowledge of RFRA law.   So, tell me if this is wrong:
> The proposed NC law will make it a crime for a man to use a public men's
> room even if he has full ID as a man; a social security number tied to him
> as a man, and is legally male where he lives; or a woman to use a woman's
> room.  The cases are not "out there" yet because the law has not been
> implemented.  Other parts of the proposed law would allow businesses to
> refuse to serve people on the basis of gender, gender presentation, or
> sexual preference.
>
> Am I wrong about this reading of the law?
>
> If I am not wrong, then the only issue is whether this law is being passed
> under a RFRA rubric.  If it is then you are right in saying that the cases
> are not there, but clearly the cases can and will be there.
>
> If I am wrong about this, then I defer to your more skilled reading of the
> proposed NC law.
>
>
> **
> Paul Finkelman
> *Ariel F. Sallows Visiting Professor of Human Rights Law*
> *College of Law*
> *University of Saskatchewan*
> *15 Campus Drive*
> *Saskatoon, SK  S7N 5A6   *
> *CANADA*
>
>
> *paul.finkel...@yahoo.com
> 
> c) 518.605.0296 <518.605.0296> *
> and
> *Senior Fellow*
>
> *Democracy, Citizenship and Constitutionalism Program *
> *University of Pennsylvania*
>
>
>
>
>
> Call 
> Send SMS 
> Call from mobile 
> Add to Skype 
> You'll need Skype CreditFree via Skype
>
>
> --
> *From:* "Laycock, H Douglas (hdl5c)" 
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Monday, March 28, 2016 8:32 PM
> *Subject:* RE: Arizona, Indiana . . . and now Georgia
>
> The cases of the sort Michael describes (and that Chris Lund has described
> in public work) are still out there; they still happen. And the cases Paul
> Finkelman imagines, in which state RFRAs justify all kinds of
> discrimination against gays, are not out there. They have not happened.
>
> But gay rights and contraception are getting all the political and press
> attention. Both sides are to blame. Republican legislators who are only now
> getting around to enacting RFRAs didn't care about the generally small
> religious minorities in the cases that don't raise culture war issues. They
> and their predecessors weren't motivated to pass a RFRA back when all the
> other states were. They don't talk about those cases now, not because they
> aren't happening, but because they don't know about them and apparently
> wouldn't care if they knew. So they promise their base things about
> marriage equality that they can't possibly deliver. At the Republican
> debate in Houston, a reporter asked a long series of questions about
> religious liberty, and all he got from the candidates was gays and
> 

Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

This particular statute might have been politically unimaginable 25 years
ago, I suppose (although states were already heading in that direction).
But that is true of many, many laws that are enacted every day--perhaps the
majority of them.  What is not unimaginable at all is that Congress would
regularly pass laws that *some *people and institutions would find
religiously objectionable -- that's been happening since the dawn of the
Republic, and I'm not sure why it's especially significant, *for purposes
of* *interpreting RFRA*, that a small percentage of Protestants and
Catholics are the principal objectors now, rather than Jehovah's Witnesses,
the Amish, Quakers, etc.  (The percentage of Catholic and Protestant
religious institutions that think the ACA requirement that almost all
insurance plans in America cover contraception coerces them to "violate
some of their core moral teachings" is fairly minuscule--probably many
fewer than the number of "Just War" Catholics who were denied exemptions
from the draft during VIetnam:  the vast majority of such institutions
don't think that their compliance with the reg (even before the
accommodation) is any different from paying salaries to employees who use
contraception--it's part of the basic package of standard, baseline
compensation throughout the U.S.)

The relevant point is this:  If this regulation *had *been imaginable in
1990, there would have been no reason to think that codifying the pre-*Smith
*law would have required exemptions from it:  Whenever such objections were
made in the past in the commercial sphere, and the requested exemptions
would harm third parties, the religious claimants lost, and almost always
without much hue and cry.


On Mon, Mar 28, 2016 at 9:17 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> I think he means that 25 and more years ago (which just happens to be
> pre-Smith), it would have been politically unimaginable for government to
> require Catholic or Protestant religious institutions to do things that
> violate some of their core moral teachings. Those conflicts were just
> emerging; there is testimony about them in the RFRA hearings. But the
> problem was very new, and still small.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> *Sent:* Monday, March 28, 2016 9:10 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
> "under pre-Smith jurisprudence, a federal mandate on the topic of
> contraception would not have been dreamed of either"
>
> I don't know what this means.  What does Free Exercise jurisprudence have
> to do with whether Congress requires health insurance plans to include
> preventive services?
>
> On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley <mwor...@byulaw.net
> <http://redir.aspx?REF=-d2XbVaVEoWeeiUEqB5lUI4_cZSZIhsy2f-ByhNi6S0cL6KPb1fTCAFtYWlsdG86bXdvcmxleUBieXVsYXcubmV0>
> > wrote:
>
>> Marty makes a fair point.  But under pre-Smith jurisprudence, a federal
>> mandate on the topic of contraception would not have been dreamed of
>> either.
>>
>>
>> On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman <lederman.ma...@gmail.com
>> <http://redir.aspx?REF=CP35mwZHm2D3dv3orFCDAgp97NtlNUVzNKmPFP_VR_ccL6KPb1fTCAFtYWlsdG86bGVkZXJtYW4ubWFydHlAZ21haWwuY29t>
>> > wrote:
>>
>>> As reflected in my recent article and (with
>>> Gordon/Greenawalt/Lupu/Tuttle) amicus brief, I have become convinced that
>>> where RFRA(s) went "wrong" is when advocates and judges started
>>> insisting--mistakenly, in the case of federal RFRA--that it is more
>>> demanding than the pre-*Smith* Free Exercise doctrine.  Under that 
>>> pre-*Smith
>>> *jurisprudence, the contraception and antidiscrimination cases would
>>> not be close calls.  And if the Court were to hold (as it should) that RFRA
>>> does incorporate the pre-*Smith *jurisprudence, and does not go well
>>> beyond that law to impose an "exceptionally demanding" test of the
>>> government (as the Court has suggested in *Boerne *and *HL*), then RFRA
>>> (and state RFRAs) will once again become far more palatable to a much
>>> broader coalition.  But of course, as Doug notes, if there's no prospect of
>>> prevailing in the contraception and discrimination cases, then there won't
>>> be much impetus for new RFRAs on the right.
>>>
>>>
_

Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

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

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

On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley <mwor...@byulaw.net> wrote:

> Marty makes a fair point.  But under pre-Smith jurisprudence, a federal
> mandate on the topic of contraception would not have been dreamed of
> either.
>
>
> On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> As reflected in my recent article and (with
>> Gordon/Greenawalt/Lupu/Tuttle) amicus brief, I have become convinced that
>> where RFRA(s) went "wrong" is when advocates and judges started
>> insisting--mistakenly, in the case of federal RFRA--that it is more
>> demanding than the pre-*Smith* Free Exercise doctrine.  Under that pre-*Smith
>> *jurisprudence, the contraception and antidiscrimination cases would not
>> be close calls.  And if the Court were to hold (as it should) that RFRA
>> does incorporate the pre-*Smith *jurisprudence, and does not go well
>> beyond that law to impose an "exceptionally demanding" test of the
>> government (as the Court has suggested in *Boerne *and *HL*), then RFRA
>> (and state RFRAs) will once again become far more palatable to a much
>> broader coalition.  But of course, as Doug notes, if there's no prospect of
>> prevailing in the contraception and discrimination cases, then there won't
>> be much impetus for new RFRAs on the right.
>>
>> On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> The cases of the sort Michael describes (and that Chris Lund has
>>> described in public work) are still out there; they still happen. And the
>>> cases Paul Finkelman imagines, in which state RFRAs justify all kinds of
>>> discrimination against gays, are not out there. They have not happened.
>>>
>>> But gay rights and contraception are getting all the political and press
>>> attention. Both sides are to blame. Republican legislators who are only now
>>> getting around to enacting RFRAs didn't care about the generally small
>>> religious minorities in the cases that don't raise culture war issues. They
>>> and their predecessors weren't motivated to pass a RFRA back when all the
>>> other states were. They don't talk about those cases now, not because they
>>> aren't happening, but because they don't know about them and apparently
>>> wouldn't care if they knew. So they promise their base things about
>>> marriage equality that they can't possibly deliver. At the Republican
>>> debate in Houston, a reporter asked a long series of questions about
>>> religious liberty, and all he got from the candidates was gays and
>>> contraception. That's the only religious liberty issue they know about it.
>>>
>>> And then the other side plays off this rhetoric, and imagines horror
>>> stories with no basis in experience, and some that are beyond imagining.
>>> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels
>>> very much like a prelude to another Kristallnacht." Both real "arguments"
>>> that got reported in the press as though they were serious.
>>>
>>> If anyone needs a narrative about why RFRAs are still needed, just
>>> consider the Kansas woman who died for her faith for lack of a state RFRA.
>>> She was Jehovah's Witness, She needed a bloodless liver transplant. It was
>>> available in Omaha. It was even cheaper than a Kansas transplant with blood
>>> transfusions. But Kansas Medicaid doesn't pay for out of state medical
>>> care. Neutral and generally applicable rule. Kansas argued that the state
>>> constitution should be interpreted to mean Smith. By the time she won that
>>> lawsuit on appeal, her medical condition had deteriorated to where she was
>>> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy
>>> Authority, 252 P.3d 141 (Kan. Ct. App. 2011).
>>>
>>> Douglas Laycock
>>> Robert E. Scott Distinguished Professor of Law
>>> University of Virginia
>>> 580 Massie Road
>>> Charlottesville, VA 22903
>>> 434-243-8546
>>>
>>> 
>>> From: religionlaw-boun...@lists.ucla.edu [
>>> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [
>>> m

Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

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

On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> The cases of the sort Michael describes (and that Chris Lund has described
> in public work) are still out there; they still happen. And the cases Paul
> Finkelman imagines, in which state RFRAs justify all kinds of
> discrimination against gays, are not out there. They have not happened.
>
> But gay rights and contraception are getting all the political and press
> attention. Both sides are to blame. Republican legislators who are only now
> getting around to enacting RFRAs didn't care about the generally small
> religious minorities in the cases that don't raise culture war issues. They
> and their predecessors weren't motivated to pass a RFRA back when all the
> other states were. They don't talk about those cases now, not because they
> aren't happening, but because they don't know about them and apparently
> wouldn't care if they knew. So they promise their base things about
> marriage equality that they can't possibly deliver. At the Republican
> debate in Houston, a reporter asked a long series of questions about
> religious liberty, and all he got from the candidates was gays and
> contraception. That's the only religious liberty issue they know about it.
>
> And then the other side plays off this rhetoric, and imagines horror
> stories with no basis in experience, and some that are beyond imagining.
> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels
> very much like a prelude to another Kristallnacht." Both real "arguments"
> that got reported in the press as though they were serious.
>
> If anyone needs a narrative about why RFRAs are still needed, just
> consider the Kansas woman who died for her faith for lack of a state RFRA.
> She was Jehovah's Witness, She needed a bloodless liver transplant. It was
> available in Omaha. It was even cheaper than a Kansas transplant with blood
> transfusions. But Kansas Medicaid doesn't pay for out of state medical
> care. Neutral and generally applicable rule. Kansas argued that the state
> constitution should be interpreted to mean Smith. By the time she won that
> lawsuit on appeal, her medical condition had deteriorated to where she was
> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy
> Authority, 252 P.3d 141 (Kan. Ct. App. 2011).
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
>
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [
> mich...@californialaw.org]
> Sent: Monday, March 28, 2016 7:01 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Arizona, Indiana . . . and now Georgia
>
> Unfortunately, for many, the entire spectrum of "religious liberty" in
> the United States appears to revolve around LGBT rights. That may, in
> fact, be the case for religious "majorities" who are not otherwise
> adversely affected by facially neutral state laws that infringe upon
> their religious practices and who cry "persecution!" at the slightest
> provocation.
>
> But going back to the original Smith case where members of a native
> American group were denied their unemployment benefits because of
> peyote use, the people who could really benefit from state RFRAs
> aren't just visible on the surface but are the minorities whose
> situations need to be "teased out" from between the social cracks.
>
> Certainly Antonin Scalia, lauded for his "conservative" credentials,
> is often forgotten in his role of drafting the Smith decision in the
> first place, although now it is the conservatives who are on the
> losing end of the latest social/legal developments and who now claim
> to be most in need of RFRA's protections. Nor is it lost that the
> original proponents of RFRA often came from the left, and as Professor
> Brownstein notes, the California RFRA was vetoed by a Republican in

Arizona, Indiana . . . and now Georgia

[Marty Lederman]

https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.legis.ga.gov/Legislation/20152016/161054.pdf
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Re: Zubik / Little Sisters - testing the scope via a hypothetical

[Marty Lederman]

P.S.  This technical question of ERISA "designation" of plan administrators
is not even relevant to insured plans.  Therefore, to the extent any
employer that uses a self-insured plan did actually conclude (i) that its
actions were "designating" the TPA as plan administrator (even though
they're not), *and *(ii) that such designation turns morally innocent
opting out into morally culpable opting out (color me dubious), that
employer always has the option of switching over to an insured plan, in
which case the insurance company (the "issuer") already has an independent
legal obligation to provide the coverage and, moreover, will have to do so
through a separate plan if an employer objects.



On Wed, Mar 23, 2016 at 3:43 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> Doug is right, and this is a tempest in a teapot, far removed from the
> question that was (not surprisingly) at the heart of today's argument
> (namely, whether the theoretical prospect of legislation that would permit
> women to purchase a contraception-only plan on an exchange, and that would
> fully *subsidize* such purchases, is a "less restrictive" way of
> furthering the government's compelling interests--about which more later).
>
> What Doug wrote is this:  “If [the employers] had to *instruct or
> authorize* their insurance companies to provide contraception at the
> insurer’s expense, that is a closer case, but I am inclined to view that as
> a substantial burden.”
>
> For starters, I am deeply skeptical that the plaintiffs' claims of
> complicity could possibly turn on whether their submission of a form
> technically "authorizes" or "designates" a TPA as a plan administrator for
> purposes of the Employee Retirement Income Security Act of 1974.
> Obviously, the organizations are not, in any colloquial, moral, lay or
> non-legal sense, authorizing or instructing or designating anyone else to
> provide contraception coverage--the entire world, including the TPAs, know
> that they do not wish for anyone to provide such coverage.  Are we to
> believe, then, that anyone's religious obligations turn on whether some
> action they take to further *separate *themselves from the use of
> contraception (which is already several steps removed) also, as a technical
> legal matter, "designates" another entity as a plan administrator for
> purposes of some arcane ERISA rule?
>
> But more to the point, *precisely in response to this alleged concern
> about "designation" of the TPA, *the agencies amended the regulation so
> that it no longer requires an employer to do anything that has even that
> technical, ERISA effect.  Instead, the employer can send a letter to HHS
> opting out, at which point *the Department of Labor* designates the TPA
> as plan administrator.
>
> Eric Kniffin argues that, under ERISA, DOL lacks the authority to
> designate a plan administrator.  I confess that I don't know remotely
> enough about ERISA to opine on this question.  But if Eric is *right*,
> what it would mean is simply that, contrary to the government's view, the
> TPA is not obligated to provide the coverage.  If a TPA believes that Eric
> is right about ERISA, it can sue DOL and argue that the agency is acting 
> *ultra
> vires *and that therefore it does not have to play ball.  That doesn't
> change the fact, however, that under the regulation the *employer *does
> not have to "designate" the TPA as a plan administrator, even for technical
> ERISA purposes.
>
>
>
> On Wed, Mar 23, 2016 at 11:39 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> Ed Whelan has now put up a post claiming that my exchanges with Eric
>> “retract” the BJC brief. With respect, that is absurd.
>>
>>
>>
>> What motivated the brief, and what is so dangerous to religious liberty,
>> is the argument that courts cannot question claims of substantial burden on
>> religion and the argument that narrow religious exemptions must inevitably
>> be expanded to become all-inclusive religious exemptions. And if
>> petitioners had confidence in their claim that the government is requiring
>> them to authorize contraception coverage, they would not have had to make
>> these far more dangerous arguments.
>>
>>
>>
>> ERISA is not my field, and we will see what the Court says. But there is
>> no language of authorization in the letter that employers must send the
>> government refusing to provide contraception.
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
&g

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

[Marty Lederman]

Doug is right, and this is a tempest in a teapot, far removed from the
question that was (not surprisingly) at the heart of today's argument
(namely, whether the theoretical prospect of legislation that would permit
women to purchase a contraception-only plan on an exchange, and that would
fully *subsidize* such purchases, is a "less restrictive" way of furthering
the government's compelling interests--about which more later).

What Doug wrote is this:  “If [the employers] had to *instruct or authorize*
their insurance companies to provide contraception at the insurer’s
expense, that is a closer case, but I am inclined to view that as a
substantial burden.”

For starters, I am deeply skeptical that the plaintiffs' claims of
complicity could possibly turn on whether their submission of a form
technically "authorizes" or "designates" a TPA as a plan administrator for
purposes of the Employee Retirement Income Security Act of 1974.
Obviously, the organizations are not, in any colloquial, moral, lay or
non-legal sense, authorizing or instructing or designating anyone else to
provide contraception coverage--the entire world, including the TPAs, know
that they do not wish for anyone to provide such coverage.  Are we to
believe, then, that anyone's religious obligations turn on whether some
action they take to further *separate *themselves from the use of
contraception (which is already several steps removed) also, as a technical
legal matter, "designates" another entity as a plan administrator for
purposes of some arcane ERISA rule?

But more to the point, *precisely in response to this alleged concern about
"designation" of the TPA, *the agencies amended the regulation so that it
no longer requires an employer to do anything that has even that technical,
ERISA effect.  Instead, the employer can send a letter to HHS opting out,
at which point *the Department of Labor* designates the TPA as plan
administrator.

Eric Kniffin argues that, under ERISA, DOL lacks the authority to designate
a plan administrator.  I confess that I don't know remotely enough about
ERISA to opine on this question.  But if Eric is *right*, what it would
mean is simply that, contrary to the government's view, the TPA is not
obligated to provide the coverage.  If a TPA believes that Eric is right
about ERISA, it can sue DOL and argue that the agency is acting *ultra
vires *and that therefore it does not have to play ball.  That doesn't
change the fact, however, that under the regulation the *employer *does not
have to "designate" the TPA as a plan administrator, even for technical
ERISA purposes.



On Wed, Mar 23, 2016 at 11:39 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Ed Whelan has now put up a post claiming that my exchanges with Eric
> “retract” the BJC brief. With respect, that is absurd.
>
>
>
> What motivated the brief, and what is so dangerous to religious liberty,
> is the argument that courts cannot question claims of substantial burden on
> religion and the argument that narrow religious exemptions must inevitably
> be expanded to become all-inclusive religious exemptions. And if
> petitioners had confidence in their claim that the government is requiring
> them to authorize contraception coverage, they would not have had to make
> these far more dangerous arguments.
>
>
>
> ERISA is not my field, and we will see what the Court says. But there is
> no language of authorization in the letter that employers must send the
> government refusing to provide contraception.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Kniffin, Eric N.
> *Sent:* Wednesday, March 23, 2016 2:19 AM
> *To:* 'Law & Religion issues for Law Academics' <
> religionlaw@lists.ucla.edu>
> *Subject:* RE: Zubik / Little Sisters - testing the scope via a
> hypothetical
>
>
>
> Thanks, Doug. That makes sense.
>
>
>
> As to the nuts and bolts of how the accommodation works, I very much
> disagree with your assessment. I think it is pretty plain as a matter of
> ERISA law that the government needs the authorization from the employer to
> make a TPA deliver contraceptives, and that explains why the government is
> fighting so hard to get signatures for this. We explain the underlying law
> in an amicus brief I co-authored (
> http://www.becketfund.org/wp-content/uploads/2016/01/Catholic-Benefits-Association-LSP-Amicus.pdf).
> The brief also shows that the government prevailed below because the
> circuit courts blindly accepted the government’s unsupported (and
> unsupportable) claim that DOL has been delegated the power to unilaterally
> make TPAs into plan administrators and then force them to supply
> contraceptives independent of the employer’s plan.
>
>
>
> Back to RFRA, if the accommodation only works 

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

[Marty Lederman]

This is getting a bit removed from the main discussion, but just a couple
of points in response to Brad Jacob's post:

1.  The federal government, of course, has not required anyone to
"provide abortifacients
to their employees."  That's simply a tendentious way of characterizing the
regulation.

2.  More broadly, although the focus of RFRA surely was to reject *Smith*,
and to subject free exercise cases to the pre-*Smith *jurisprudence, that
pre-*Smith* protection was hardly "vigorous," as my co-amici and I explain
in this brief:

http://www.scotusblog.com/wp-content/uploads/2016/02/02.17.16_amicus_brief_in_support_of_respondents-_religious_liberty_scholars.pdf

and as I elaborate further in this article:

http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf



On Tue, Mar 22, 2016 at 2:58 PM, Bradley Jacob  wrote:

> While it is certainly true that *Smith* was the catalyst for RFRA, if you
> are suggesting that the statute itself had a small focus, that was not the
> case. Those of us involved in working RFRA through Congress had a huge
> vision – to overturn the effects of *Smith* and return all free exercise
> cases to the vigorous protection of strict scrutiny. It was that big vision
> that drew together the broad, bipartisan coalition. No one was thinking of 
> *Hobby
> Lobby* in 1991-93 – because no one at that time would have dreamed that
> the federal government would have required religious employers to provide
> abortifacients to their employees – but the case was certainly consistent
> with the broad vision of strong free exercise for all Americans that
> motivated the RFRA effort.
>
>
>
> Brad
>
>
>
> *Bradley P. Jacob
> *
>
> *Associate Professor*
>
> Regent University School of Law
>
> t. 757.352.4523; f. 757.352.4571
>
> brad...@regent.edu
>
> Facebook   | Twitter
>   |  SSRN
> 
>
> [image: cid:image001.jpg@01D0F61B.F29F9940]
> 
>
>
>
>
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> Sent: Tuesday, March 22, 2016 2:22 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical
>
>
>
> RFRA came into being following the Smith case which involved the smallest
> of religious minorities and now it's grown into this huge thing that
> protects the "free exercise" rights of corporations that are owned by
> religious people to take actions that are against the rights that their
> employees would otherwise get under federal law (ACA contraception for
> instance). . . .
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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> private.  Anyone can subscribe to the list and read messages that are
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> wrongly) forward the messages to others.
>
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Re: Zubik - a different hypo, closer to the case itself

[Marty Lederman]

Let me try out another hypo, closer to the facts of Zubik, to see what
people's reactions are.  As I understand it, what the government and Doug
are proposing is that the Court establish another bright-line rule, akin to
the one the Court developed in *Bowen *and *Lyng*, excluding a certain
category of claims from being deemed "substantial burdens" *as a matter of
law*, without regard to whether the plaintiff sincerely believes that the
law compels her to impermissibly facilitate sinful conduct.

The new proposed rule is something like this:  Just as one cannot challenge
the government's own internal conduct, no matter how much it *actually
impinges *on one's exercise of religion (*Bowen*)--indeed, even where it
might render that exercise impossible (*Lyng*)--so, too, the Court should
hold that Party A cannot challenge a legal relationship *between the
government and a third party (Party B--here, the insurance company)*, and
seek to prevent that relationship in a way that would frustrate the
government's ability to further its interests, *even if *Party A sincerely
believes that its preexisting relationship with Party B (i.e., the
employer's contract with the insurer, and, here, the insurer's access to
employee information) contributes to sinful conduct in a way that makes
Party A morally culpable.

Let's take a case where the government deals directly with Party A's
employees, such as a single-payer system--or, better yet, the
"alternatives" that the petitioners in Zubik have themselves suggested, in
which women whose employers do not allow contraception coverage would
receive it instead from the government, either directly or through an
exchange plan that the government would subsidize.

Say that, in such a system, the government requires information from the
women or their employers in order to make the system work--such as proof of
employment; proof that they are not already receiving the benefit; info
about income; info about preexisting relationships with physicians under
the employer plan; etc.  The law therefore either requires the employer to
provide such employee-specific information directly to the government, or
requires the employees themselves to provide the information, which they
possess *only by virtue of their pre-existing contractual relationship with
the employer*.  The employer complains that the conveyance of that
information to the government, which allows the government to more
efficiently implement the "single-payer" option, would make *it *(the
employer) complicit in the employees' eventual use of contraception (or
nonprocreative sex), by "facilitating" the government's ability to provide
reimbursement to the employees.

As I understand it, the USG/Laycock argument would say that there is no
substantial burden in such a case *as a matter of law*, regardless of
whether the employer's claim of complicity is sincere.

Thoughts?  Would this really be very different from what the Court did in
*Bowen* and *Lyng* themselves?








> *From:* Michael Peabody > 
>> >
>> *To:* religionlaw@lists.ucla.edu
>> 
>> *Sent:* Monday, March 21, 2016 4:35 PM
>> *Subject:* Zubik / Little Sisters - testing the scope via a hypothetical
>>
>>
>> The Supreme Court will be hearing these cases on Wednesday and I'm
>> trying to figure out how broadly this may affect religious
>> accommodation beyond the ACA cases. Most of the briefs in favor of the
>> petitioners describe broad sweeping "attacks" on religious freedom
>> while the respondents seem to argue that the built-in accommodation
>> should be considered sufficient.
>>
>> In an effort to try to explain this to non-lawyers (of which many are
>> Seventh-day Adventists) who are asking me about what this case means,
>> I've come up with a hypothetical that I'm
>> presently testing out.  In making this hypothetical, I make an
>> assumption that RFRA was originally intended to protect individuals
>> (not institutions) to avoid the post-Hobby Lobby reaction that it is
>> now about organizations and I am relying on a federal regulation model
>> to avoid jurisdictional confusion.  I do realize that my hypothetical
>> involves an employer-employee relationship, but I tried to manage this
>> angle by making the closing time a function of a bill passed by
>> Congress than an employee scheduling issue.
>>
>> Here is the hypothetical:
>>
>> A Seventh-day Adventist is a federal employee who works as the manager
>> of a gift shop in a remote national park. As part of a bill designed
>> to encourage people to visit the parks, Congress requires that all
>> park gift shop facilities remain open until 6:00 p.m. For our
>> Seventh-day Adventist, this poses a problem in the winter months as it
>> 

Re: Alito dissent from denial in (what should have been) a prison Lukumi case

[Marty Lederman]

I have now seen the reply brief.  (I can send it to any interested
parties.)  It, too, fails to invoke Lukumi or Larsen or Kiryas Joel, or any
other discrimination case.  Indeed, it tries to focus the petition on
RLUIPA rather than on the First Amendment.  The reply brief does, however,
transcribe the handwritten petition, which reveals that Ben-Ami himself did
complain about discrimination, although he raised it mostly in the context
of Turner v. Safley analysis.

This looks to be a case that could easily have been won--without the need
to go to the Supreme Court--with decent counsel.  Justice Alito was alone
in thinking that the Court should reach out to engage in error correction.

On Mon, Feb 29, 2016 at 10:35 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> see pp. 39f. of the pdf:
>
> http://www.supremecourt.gov/orders/courtorders/022916zor_7lho.pdf
>
> The Court undoubtedly denied *cert.* because the pro se filing was very
> weak, verging on unintelligibility:
>
> http://www.scotusblog.com/wp-content/uploads/2015/12/Petitioners-Brief.pdf
>
> Alito appears to be correct that it's a Lukumi violation--indeed, almost
> certainly also a violation of the Freedom of Assembly Clause, as it
> involves straightforward sect discrimination in setting rules for
> collective prisoner bible studies.  However, it appears that the prisoner
> failed to press a discrimination claim, or to cite Lukumi, in the district
> court, the court of appeals, or in his petition--so that it was litigated
> on straight Turney v. Safley terms.
>
> (A reply brief was finally filed by counsel a couple of weeks ago, after
> the Court had reconferenced the case multiple times.  I'll send it around
> if I can find it.)
>
> Interestingly, Alito appears to concede that a showing of "substantial
> burden" is necessary in a Lukumi discrimination case.  As far as I know,
> however, the Court has never addressed that question.
>
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Alito dissent from denial in (what should have been) a prison Lukumi case

[Marty Lederman]

see pp. 39f. of the pdf:

http://www.supremecourt.gov/orders/courtorders/022916zor_7lho.pdf

The Court undoubtedly denied *cert.* because the pro se filing was very
weak, verging on unintelligibility:

http://www.scotusblog.com/wp-content/uploads/2015/12/Petitioners-Brief.pdf

Alito appears to be correct that it's a Lukumi violation--indeed, almost
certainly also a violation of the Freedom of Assembly Clause, as it
involves straightforward sect discrimination in setting rules for
collective prisoner bible studies.  However, it appears that the prisoner
failed to press a discrimination claim, or to cite Lukumi, in the district
court, the court of appeals, or in his petition--so that it was litigated
on straight Turney v. Safley terms.

(A reply brief was finally filed by counsel a couple of weeks ago, after
the Court had reconferenced the case multiple times.  I'll send it around
if I can find it.)

Interestingly, Alito appears to concede that a showing of "substantial
burden" is necessary in a Lukumi discrimination case.  As far as I know,
however, the Court has never addressed that question.
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Zubik (RFRA contraception cases) update

[Marty Lederman]

I don't recall whether I've already posted any of the briefs to the
listserv, but now they've all been filed except for the petitioners' two
reply briefs, which will be filed March 11.  Argument will be 90 minutes
(45 for the two petitioners' counsel; 45 for the government) on Wednesday,
March 23.

Here's Noel Francisco's (Jones, Day) brief

for
one group of the petitioners.

And here's Paul Clement's (Bancroft) brief

for
the other group of petitioners.

The government's brief is here

.

All 43 of the topside amicus briefs can be found on the SCOTUSblog page for
*Zubik* ; many
of the bottom-side amicus briefs are now posted on the ACLU site
.

If I may tout a couple of those bottom-side amicus briefs, for listmembers'
consideration:

Yesterday Sally Gordon, Kent Greenawalt, Chip Lupu, Bob Tuttle, and I
filed this
brief
,
on the relationship between RFRA and pre-*Smith* Free Exercise law, and on
the "least restrictive means" test, in particular.

Also, Doug Laycock and Holly Hollman filed this important brief

for the Baptist Joint Committee.

Part I of the BJC brief, on "substantial burden," is excellent in its own
right.  But I'd draw your attention, in particular, to Part II.
Petitioners and several of their amici -- see, for example, the brief

for the Dominican Siscters, filed by Eileen O'Connor and Carrie Severino --
are strongly emphasizing the argument that because the agencies have
exempted the insurers of plans for *churches and their auxiliaries* from
having to cover contraception, that means the government can't satisfy the
compelling interest/LRM test as to the remaining nonprofits, because those
nonprofits (allegedly) are materially indistinguishable from the
churches/auxiliaries for purposes of this regulation.  Doug and Holly's
response to this argument is, I think, quite powerful.  (On this aspect of
the case, see also the USG brief

at 67-72.)

More generally, Doug's brief is notable because he argues that if the Court
were to endorse either the petitioners' argument on substantial burden, *or
*the argument concerning discrimination in favor of churches, it would
"endanger religious liberty, both legally and politically."  Indeed, as to
the latter, he writes that the church argument is "a mortal
threat to thousands of specific religious exemptions crafted by
legislatures and administrative agencies."
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Re: landlord/tenant law and RFRA

[Marty Lederman]

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

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

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


On Thu, Feb 4, 2016 at 7:59 AM, Kwall, Roberta  wrote:

> Dear colleagues-
>
> I am working on the next edition of my property casebook and am writing to
> get some input on an issue that comes up in connection with the chapter on
> a landlord's ability to refuse occupancy by a tenant.  Although the FHA
> prohibits discrimination based on "familial status," whether a landlord can
> refuse occupancy based on marital status is governed by the states.  Courts
> have gone both ways on whether a landlord can refuse an unmarried
> heterosexual the ability to rent based on religious belief. Regarding gay
> couples, even before Obergefell, some state statutes prohibited
> discrimination based on civil unions status, domestic partnerships, gender
> identity, etc.
>
> I know this this group has discussed related issues post Obergefell but I
> was wondering specifically whether anyone can speak to whether current or
> pending state RFRA Acts might be used to allow a landlord who opposed gay
> marriage to refuse to lease to a married gay couple.  I would like to
> include something brief on this in the book.
>
> Thank you!
> Bobbi
>
>
>
> Roberta Rosenthal Kwall
> Raymond P. Niro Professor
> Founding Director, DePaul University College of Law
> Center for Intellectual Property Law & Information Technology
>
>
>
> Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
>
> http://amzn.to/15f7bLH
>
>
>
>  You can view my papers on the Social Science Research Network (SSRN) at
> the following
> URL:  http://ssrn.com/author=345249
>
>
>
> --
>
>
> ___
> 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.
>
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: landlord/tenant law and RFRA

[Marty Lederman]

rds should lose because RFRA violated the separation of
> powers.
>
>
>
> I don’t quite see, then, an anti-claimant general trend in
> the marital status discrimination in housing cases.  Rather, it seems like
> a pretty mixed bag, on balance slightly in favor of the landlord claimants,
> though far from uniformly so.  Or am I missing something?
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Laycock, H Douglas
> (hdl5c)
> *Sent:* Thursday, February 04, 2016 9:29 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: landlord/tenant law and RFRA
>
>
>
> McCready v, Hoffius was vacated on rehearing and remanded for further
> consideration of the compelling interest issue.
>
> But I agree with Marty on the general trend. For-profit entities have not
> won exemptions from discrimination laws under the RFRA standard. Most of
> them should not win; for the few situations in which they should, specific
> exemptions are needed to provide any protection that is at all likely to
> work.
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu
> <http://redir.aspx?REF=0kHekX3XxiVvGgHALoix3toIKyWGhklW6O4mpoeOhzGFRd5zkC3TCAFtYWlsdG86cmVsaWdpb25sYXctYm91bmNlc0BsaXN0cy51Y2xhLmVkdQ..>
> [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> *Sent:* Thursday, February 04, 2016 8:29 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: landlord/tenant law and RFRA
>
> Roberta:  This would almost certainly be exclusively a question of state
> law, wherever it arises (if it ever does).  There first would have to be a
> state or local ordinance prohibiting such discrimination; and then also a
> state RFRA, or a state constitutional free exercise provision that has been
> construed to be more restrictive than the federal FEC in *Smith*.  If and
> when a state has both of these sorts of state laws, and if any landlord
> invokes a RFRA exemption, I expect, based largely upon past practice, that
> most or all state courts would reject the landlords' claims.  But, of
> course, there might be some state judiciaries that go the other way,
> *especially* if the Supreme Court in *Zubik *applies RFRA's "compelling
> interest"/"least restrictive means" test much more stringently than it has
> construed that "test" since 1963.
>
>
>
> Here's a quick string-cite that I recently threw together on the earlier
> landlord cases [if I missed any, please let me know]:
>
>
>
> Landlords brought several such claims seeking religious exemptions that
> would permit them to disregard state and local laws prohibiting
> discrimination against unmarried tenants in non-owner-occupied units.  The
> courts typically rejected these claims.  See, e.g., Smith v. Fair Emp't &
> Hous. Comm'n, 913 P.2d 909 (Cal. 1996) (federal RFRA); Swanner v. Anchorage
> Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994) (state free exercise
> clause); McCready v. Hoffius, 586 N.W.2d 723, 729 (Mich. 1998) (state free
> exercise clause); Jasniowski v. Rushing, 678 N.E.2d 743, 748-51 (Ill. App.
> Ct. 1997) (federal RFRA).  In one such case, however, two judges on the
> U.S. Court of Appeals for the Ninth Circuit would have recognized an
> exemption if the merits of a so-called *Smith *"hybrid" claim were
> reached, see Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692 (9th
> Cir. 1999) (majority opinion of O’Scannlain, J., joined by Farris, J.),
> vacated on other grounds, 220 F.3d 1134 (9th Cir. 2000) (en banc); and in
> another case, Justice Thomas hinted that he, too, was sympathetic to such
> claims under RFRA, see Swanner v. Anchorage Equal Rights Comm'n, 513 U.S.
> 979 (1994) (Thomas, J., dissenting from denial of petition for writ of
> certiorari).  See also Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass.
> 1994) (reversing summary judgment in favor of landlords and remanding for
> further hearing on state’s compelling interest under state constitutional
> provision).
>
>
>
>
>
> On Thu, Feb 4, 2016 at 7:59 AM, Kwall, Roberta <rkw...@depaul.edu
> <http://UrlBlockedError.aspx>> wrote:
>
> Dear colleagues-
>
>
>
> I am working on the next edition of my property casebook and am writing to
> get some input on an issue that comes up in connection with the chapter on
> a landlord's ability to refuse occupancy by a tenant.  Although the FHA
> prohibits discrimination based on "familial status," whether a landlord can
> refuse occupancy based on marital status is

Re: Texas Cheerleaders display Bible Verses on banners

[Marty Lederman]

Here's what's happened in this very confusing case.  Warning:  It's not
very comprehensible.  But what is clear is that no court has (thus far)
actually adjudicated any *substantive *dispute, on the merits, about any
state or federal constitutional question:

1.  The cheerleaders of the Kountze Independent School District (KISD)
have traditionally constructed and displayed "run-through" banners that
KISD players tear through as they storm the field before every game.  For
years, the cheerleaders have placed inspirational religious messages on the
banners, often based on Bible verses, e.g.:

“A lion, which is strongest among beasts and turns not away from any.”
“I can do all things through Christ who strengthens me.”
“If God is for us, who can be against us?”
“But thanks be to God which gives us victory through our Lord Jesus Christ.”

2.  Freedom from Religion Foundation sent a letter to KISD, arguing that
the practice violates the EC.  The District, apparently without conceding
the FRF constitutional claim prohibited the signs, at least for the purpose
of heading off an FRF lawsuit.

3.  The cheerleaders then sued the District, under the *State *Constitution
free speech and free exercise clauses, and obtained a P.I.

4.  The District then determined that the EC does not bar the practice, and
rescinded its prohibition on the display of religious messages, while
continuing to assert that it has an "unfettered" authority to prohibit the
content of such signs.

5. At this point, on summary judgment, the trial court issued a
"declaratory" judgment, agreed to by *both *the District and the
cheerleaders, that in relevant part states “[n]either the Establishment
Clause nor any other law prohibits the cheerleaders from using
religious-themed banners at school sporting events.”  (Again:  *Neither *party
argued that the EC does bar such banners.)

6.  After the judgment was issued, the cheerleaders claimed that the order
effectively confirmed their state constitutional right to speak -- that it
is private speech -- but District officials insisted that it only resolved
the EC question, and that the court had not precluded the district from
theoretically limiting the content of the banners, because it is
government-controlled speech.  Because of this dispute, the cheerleaders
apparently took an interlocutory appeal, although it's not at all obvious
what they were appealing *from*, since they approved of the trial court's
declaratory order.

*7.  *The *only *issue the Texas Supreme Court decided is that the case is
not moot.  It did not reach the merits of the state law free speech and
free exercise claims, let alone opine on the lurking Establishment Clause
question.:

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

(One Justice, concurring separately, signaled that she would rule for the
cheerleaders on their own constitutional claims, and/or in defense to a
hypothetical EC claim:  http://www.txcourts.gov/media/1284938/140453c2.pdf)

8.  So what's to do on remand?  Who knows?  One of the Texas Supreme Court
judges, concurring, wrote:  "My concern is that this case may return to the
trial court for a final decision only to reappear on our docket with no
clarity as to what this order achieves and what claims are actually live.
If that situation arises, the parties and trial court would do well to
confront the shadowy place in this litigation and clarify with precision
the status of this order and the cheerleaders’ claims."



On Sat, Jan 30, 2016 at 12:35 PM, Ira Lupu  wrote:

> Following up -- This case was litigated in the state courts.  Once the
> cheerleader religious banners start flying at football games next fall (or
> basketball games right now), are there any doctrines of preclusion that
> would stop Freedom from Religion Foundation or others from litigating the
> Establishment Clause claim, against these public school districts, in the
> federal courts?  In light of Santa Fe School District v. Doe, the claim
> looks awfully strong to me.  Perhaps it would be difficult to find a
> plaintiff, even a Jane Doe plaintiff, because of fear of reprisals. But the
> situation seems constitutionally repulsive to me, and it's very sad if fear
> chases away all the potential plaintiffs.
>
> On Sat, Jan 30, 2016 at 12:15 PM, Ira Lupu  wrote:
>
>> Steve Jamar is absolutely right, and the Texas Supreme Court is quite
>> wrong.  Cheers uttered, and banners carried, by cheerleaders during a
>> public high school football game are school sponsored speech. Does anyone
>> on the list think the First Amendment would bar the school from ordering
>> cheerleaders not to carry a sign that said "Feel the Bern -- beat Austin
>> HS!"?  The school is responsible for the content of these banners, and a
>> school sponsored banner that reads "“I can do all things through Christ,
>> who strengthens me,” as one of them did, is a violation of the
>> Establishment Clause.
>>
>> On Sat, Jan 30, 2016 at 

Re: Texas Cheerleaders display Bible Verses on banners

[Marty Lederman]

Herewith, the briefs in the Texas Supreme Court:

Cheerleaders’ Brief
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=12062a65-65f9-44a7-90b6-34da0e0da7a9=cossup=BRIEFS=e616b07e-b3f3-4eef-90dd-b2cba8d2f314>



School District Brief
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d7ea2ab0-e759-427a-b556-1f4d5ff98e5e=cossup=BRIEFS=32959254-780a-4281-8466-c85de7f3a51a>,
which argues that the case is moot, and then, at the end, that even though
the speech is that of the school district, it does not violate the EC,
citing *van Orden*



Brief for Amici Ted Cruz and John Cornyn
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=1c3a29d2-b5cd-4eb7-ae65-1fd44d76446b=cossup=BRIEFS=5ac602e8-a411-4817-a4d4-c843b3105c63>,
arguing that it’s not an EC violation because it’s private speech



Brief for Amicus the State of Texas
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a5de5583-3992-4a47-88a1-38830c404ae3=cossup=BRIEFS=1c6fed76-baaa-4e0d-be8c-a8461347a613>,
also arguing that it’s private speech



Brief for Amicus the American Jewish Committee
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=beff7107-86be-41e8-9ee0-840da8e804b3=cossup=BRIEFS=4c71abeb-3d45-4e82-bcc5-a6863b853abf>,
arguing that the case is moot but that, on the merits, the trial court
reached the wrong result on the Establishment Clause issue, “in the absence
of genuine adversary argument”



Brief for Amici ACLU and Americans United
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c9491c85-166e-4b5d-b02d-bb2f0970e3f9=cossup=BRIEFS=a62bbd06-6536-4b95-8b5c-38c2c973ad8a>,
arguing that it’s an EC violation



Reply Brief for the Cheerleaders
<http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c31bbddb-6a69-490b-b73e-8032cbf8f6a0=cossup=BRIEFS=e6ba8867-e8f9-479c-be22-8766c71d1d66>

On Sat, Jan 30, 2016 at 1:24 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> Here's what's happened in this very confusing case.  Warning:  It's not
> very comprehensible.  But what is clear is that no court has (thus far)
> actually adjudicated any *substantive *dispute, on the merits, about any
> state or federal constitutional question:
>
> 1.  The cheerleaders of the Kountze Independent School District (KISD)
> have traditionally constructed and displayed "run-through" banners that
> KISD players tear through as they storm the field before every game.  For
> years, the cheerleaders have placed inspirational religious messages on the
> banners, often based on Bible verses, e.g.:
>
> “A lion, which is strongest among beasts and turns not away from any.”
> “I can do all things through Christ who strengthens me.”
> “If God is for us, who can be against us?”
> “But thanks be to God which gives us victory through our Lord Jesus
> Christ.”
>
> 2.  Freedom from Religion Foundation sent a letter to KISD, arguing that
> the practice violates the EC.  The District, apparently without conceding
> the FRF constitutional claim prohibited the signs, at least for the purpose
> of heading off an FRF lawsuit.
>
> 3.  The cheerleaders then sued the District, under the *State *Constitution
> free speech and free exercise clauses, and obtained a P.I.
>
> 4.  The District then determined that the EC does not bar the practice,
> and rescinded its prohibition on the display of religious messages, while
> continuing to assert that it has an "unfettered" authority to prohibit the
> content of such signs.
>
> 5. At this point, on summary judgment, the trial court issued a
> "declaratory" judgment, agreed to by *both *the District and the
> cheerleaders, that in relevant part states “[n]either the Establishment
> Clause nor any other law prohibits the cheerleaders from using
> religious-themed banners at school sporting events.”  (Again:  *Neither *party
> argued that the EC does bar such banners.)
>
> 6.  After the judgment was issued, the cheerleaders claimed that the order
> effectively confirmed their state constitutional right to speak -- that it
> is private speech -- but District officials insisted that it only resolved
> the EC question, and that the court had not precluded the district from
> theoretically limiting the content of the banners, because it is
> government-controlled speech.  Because of this dispute, the cheerleaders
> apparently took an interlocutory appeal, although it's not at all obvious
> what they were appealing *from*, since they approved of the trial court's
> declaratory order.
>
> *7.  *The *only *issue the Texas Supreme Court decided is that the case
> is not moot.  It did not reach the merits of the state law free speech and
> free exercise claims, let alone opine on the lurking Establishment Clause
> question.:
>

Re: Excluding religious institutions from public safety benefits

[Marty Lederman]

Agreed, Rick, my formulation was an oversimplified caricature--of course no
one is advocating for a blanket right to "opt out of the welfare state" or
to categorically avoid "sharing in its burdens."  I even think it's
possible to explain why the church in H-T should be allowed to do what
other employers are not--to fire an employee for threatening to file an ADA
suit--and to simultaneously argue that Missouri *cannot *establish a
prophylactic "no church funding" rule.  But surely, there's something at
least *a bit *discordant about the "religious institutional autonomy" and
"strict religious neutrality" norms that the Court will be entertaining
simultaneously in Zubik and Trinity, isn't there?

On Mon, Jan 18, 2016 at 9:36 AM, Rick Garnett <rgarn...@nd.edu> wrote:

> Dear Marty,
>
> I agree, certainly, that "thoughtful justification" is always important
> and welcome.  For what it's worth, though, I think it overstates the matter
> a bit to characterize the religious-institutionalism arguments as pressing
> a blanket right to "opt out of the welfare state" or even to avoid, as a
> general matter, "sharing in its burdens."  (I try to respond to a powerful
> form of this "opt out" argument, advanced by Robin West, here:
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586).
>
> It is true, for sure, that many of these arguments invoke spheres,
> jurisdiction, sovereignty, autonomy, etc., in an effort explain why the
> entirely appropriate regulatory power of the welfare state does not or
> should not extend to certain matters.  But I don't see (or hear?) discord
> between, say, arguing for equal treatment / nondiscrimination in Trinity
> Lutheran and for church-autonomy in, say, Hosanna-Tabor.
>
> Best wishes,
>
> Rick
>
>
>
> On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> Mark, this is certainly true, and important:
>>
>> "The Remonstrance was written at a time when states did not provide
>> extensive benefits to most people or at least was not omnipresence in all
>> aspects of their lives.  Not a penny shall go to a church is a lot harder
>> to figure out when lots of government pennies go to lots of different
>> things."
>>
>> And that's why almost everyone -- including on this list -- would not
>> have much trouble with religious organizations receiving *entitlements* that
>> are available to everyone, with police and fire protection being the
>> canonical example.  The difficulties, however, are (at least) twofold:
>>
>> 1.  Virtually all of these cases, including *Trinity Lutheran*, involve
>> not entitlements, but instead scarce (often competitive) resources, such as
>> selective grants.  In most such cases (but apparently not *LT*),
>> government decision-makers must make subjective judgments about which
>> recipients are most worthy, which obviously raises constitutional concerns
>> when churches are in the mix.  And even where the criteria are wholly
>> neutral and nondiscretionary, I think there's an uneasiness about the state
>> conferring highly desirable, very selective benefits on religious
>> institutions while others do without.  In part because of . . .
>>
>> 2.  Alan's point, which is that such institutions simultaneously
>> insist--often for very compelling reasons--that they should not be made to
>> share in the burdens of the welfare state, even when it comes to
>> obligations in the commercial sphere, involving virtually universal
>> obligations (see Zubik).  Moreover, we're witnessing a flourishing of
>> scholarship defending the notion of "separate" spheres and institutional
>> autonomy--the right to opt *out *of the welfare state, as it were--but
>> many of those same voices insist that the "autonomous" institutions are
>> entitled to equal treatment on the benefits side, even with respect to
>> scarce resources.  This (all the benefits, less-than-all of the burdens)
>> might well be very defensible; but it's certainly at least somewhat
>> discordant, and thus cries out for thoughtful justification.
>>
>>
>>
>> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark <mgra...@law.umaryland.edu>
>> wrote:
>>
>>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
>>> the problem is not simply the original intent per se, but the welfare
>>> state.  The Remonstrance was written at a time when states did not provide
>>> extensive benefits to most people or at least was not omnipresence in all
>>> aspects of their lives.  

Re: Excluding religious institutions from public safety benefits

[Marty Lederman]

Mark, this is certainly true, and important:

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

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

1.  Virtually all of these cases, including *Trinity Lutheran*, involve not
entitlements, but instead scarce (often competitive) resources, such as
selective grants.  In most such cases (but apparently not *LT*), government
decision-makers must make subjective judgments about which recipients are
most worthy, which obviously raises constitutional concerns when churches
are in the mix.  And even where the criteria are wholly neutral and
nondiscretionary, I think there's an uneasiness about the state conferring
highly desirable, very selective benefits on religious institutions while
others do without.  In part because of . . .

2.  Alan's point, which is that such institutions simultaneously
insist--often for very compelling reasons--that they should not be made to
share in the burdens of the welfare state, even when it comes to
obligations in the commercial sphere, involving virtually universal
obligations (see Zubik).  Moreover, we're witnessing a flourishing of
scholarship defending the notion of "separate" spheres and institutional
autonomy--the right to opt *out *of the welfare state, as it were--but many
of those same voices insist that the "autonomous" institutions are entitled
to equal treatment on the benefits side, even with respect to scarce
resources.  This (all the benefits, less-than-all of the burdens) might
well be very defensible; but it's certainly at least somewhat discordant,
and thus cries out for thoughtful justification.



On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark 
wrote:

> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF,
> the problem is not simply the original intent per se, but the welfare
> state.  The Remonstrance was written at a time when states did not provide
> extensive benefits to most people or at least was not omnipresence in all
> aspects of their lives.  Not a penny shall go to a church is a lot harder
> to figure out when lots of governmet pennies go to lots of different things.
> __
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

I concur with most of what Chip says, especially his important point that
the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
about the permissibility of diversion of the aid to religious activities
(although of course the majority might choose to take the opportunity to do
so).

But this case is importantly different from *Mitchell* in two ways:  it
involves (i) provision of direct *money *grants (ii) to churches, as such.
It thus implicates SOC's insistence that there are "special dangers
associated with direct money grants to religious institutions," which she
thought has traditionally been "based on more than just diversion. *In
fact, the most important reason for according special treatment to direct
money grants is that this form of aid falls precariously close to the
original object of the Establishment Clause's prohibition*."  Of course,
she never did explain just what she meant by that, although presumably she
was referring to some sort of entanglement concern about the establishment
of financial relationships between (literally) church and state.

Whatever O'Connor meant, I'd be very surprised if there are five (or
perhaps even three or four) current Justices who agree with SOC that there
are special problems with aid to churches, as such, or who think that
financial aid is constitutionally different from other sorts of aid, in a
way that establishes a *categorical *constitutional disability--especially
where, as here, the money is provided *only *as direct dollar-for-dollar
reimbursement "for the purchase, vendor installation and delivery of the
playground scrap tire surface material."

All of which is to say that *Committee for Public Educ. v. Regan *might get
a good deal of attention here.

On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu <icl...@law.gwu.edu> wrote:

> Responding to Marty:  [If it reversed], the Court would NOT necessarily be
> saying "that the Establishment Clause does not prohibit direct funding to
> churches, at least where (i) the criteria for funding are fairly rote and
> nondiscretionary (as Eugene suggests they are here), and (ii) the principal
> uses of the $$ are not for activities that involve "inherently religious"
> matters."  {Sorry for all those "nots.")  The State of Missouri did not
> defend its denial of the application on federal Establishment Clause
> grounds.  It defended on state constitutional law grounds, and it argued
> that the state was free to have a broader ban on funding than the
> Establishment Clause requires.  That argument is about the scope of the
> "play in the joints' between the Religion Clauses.
>
> Perhaps one cannot determine that scope without fixing the boundaries of
> the Establishment Clause.  That would bring Marty's concerns into play.
> Under current Establishment Clause law re: direct funding, however, the
> SOC-SB concurrence in Mitchell v. Helms represents the controlling law.
> Under that opinion, direct aid to religious entities must have adequate
> safeguards against diversion to religious use.  There is absolutely no
> reason for SCOTUS in this case to resolve the difference between that
> concurring opinion and the Mitchell plurality, which rejected the demand
> for safeguards against religious use. So if Missouri loses this case, and
> makes the grant to Trinity Church, the grant would still have to include
> safeguards against diversion -- that is, no use of the playground as an
> outdoor classroom for religious instruction, or an outdoor venue for
> worship services.   I wonder if Trinity Church would want the grant on
> those conditions, and it might litigate further.  But a grant on those
> conditions, unlike an outright denial, would certainly be within the play
> in the joints, as they now stand.  SCOTUS would have to be quite aggressive
> to rewrite the Establishment Clause rules in a case where the state has not
> relied on those rules to defend its action.
>
> Yes, it could happen, but it seems unlikely to me.   Locke v. Davey was
> 7-2 in favor of the state having discretion to refuse to fund a scholarship
> for preparation in ministry, even if the Establishment Clause allowed it.
> Scalia and Thomas would need three additional votes to narrow that
> discretion, to squeeze it back to what the Establishment Clause forbids,
> AND to adopt the Mitchell plurality view.  They have 5 for the last of
> those, but I suspect not for the first two.
>
> On Fri, Jan 15, 2016 at 9:34 PM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> "one that could be decided quite narrowly (distinguishing Locke as being
>> about a precisely focused state interest in not subsidizing training for
>> ministry)."
>>
>> Yes, but in order to issue even that narrow hold

Re: The funding criteria in Trinity Lutheran

[Marty Lederman]

"People can debate to what extent this should matter, but I should note
that the funding criteria in Trinity Lutheran seem to be pretty
nondiscretionary as these things go."

FWIW, and as many of you know, I'm one who thinks it matters a great deal
(see pp.22-25 of http://balkin.blogspot.com/olc.charitablechoice.pdf); and
that, at least from the looks of the document to which Eugene linked, this
is as strong a case as can be imagined on the "permissible" side of the
line, since there appears to be virtually no room for government assessment
of the relative value, or merits, of the institutions applying for the
grants, or of the substance of what happens within them--the criteria
appear to be entirely neutral and objective.  I hope the Court stresses
this aspect of the program.

On Fri, Jan 15, 2016 at 7:49 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>People can debate to what extent this should matter, but I
> should note that the funding criteria in Trinity Lutheran seem to be pretty
> nondiscretionary as these things go, see
> http://dnr.mo.gov/pubs/pub2425.pdf .  Of course, all systems can be
> enforced in discretionary ways (police protection and judicial enforcement
> of legal rules are classic examples); but these seem to leave relatively
> little wiggle room, especially for evaluation of religious or ideological
> doctrine.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Friday, January 15, 2016 2:15 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Cert Granted in Blaine Amendment case
>
>
>
> On first glance, this has the potential to be a huge case.  Not only will
> it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
> whether *Locke* even survives the departure of Rehnquist and O'Connor) on
> the Free Exercise side, but it also is the first SCOTUS case in 16 years --
> since *Mitchell v. Helms *-- implicating whether and under what
> circumstances a state can offer selective, discretionary "direct funding"
> to a religious institution . . . indeed, to a church itself!
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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>
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The Establishment Clause question in the Trinity Lutheran case

[Marty Lederman]

I just took a quick look at the briefs and decision below.  Unless I missed
something, it appears that neither Missouri nor amici ACLU and Americans
United argued that the funding would violate the federal Establishment
Clause.  This led the court of appeals to write:  "We . . . recognize that
the Supreme Court’s Establishment Clause jurisprudence has evolved rather
dramatically in the forty years since Luetkemeyer was decided. For example, *it
now seems rather clear that Missouri could include the Learning Center’s
playground in a non-discriminatory Scrap Tire grant program **without
violating the Establishment Clause*."  [No explanation of why that is
"rather clear."  In fact, insofar as governing doctrine is concerned, it's
at best a close question under the EC.]

Given that Missouri appears committed to arguing for Locke v. Davey-like
"play in the joints," it's unlikely the state will argue, in the Supreme
Court, that funding would violate the EC.  And without the state making
that argument, the Court will almost certainly not raise the matter
itself, *even
though under governing doctrine there's a very strong argument that the
funding would be unconstitutional*.  In which case we'll have what's
arguably a major doctrinal change without the issue even being joined.

I don't want to overstate the importance of this:  Even if the issue were
fully briefed, there are almost certainly five or more Justices who would
reject the notion that funding here would violate the EC.  Still, it would
be rather remarkable if the Court were to hold, for the first time in
history(?), that the state can make direct grants to churches, in a case
where no party has even argued to the contrary.




On Sat, Jan 16, 2016 at 7:16 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> I concur with most of what Chip says, especially his important point that
> the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
> about the permissibility of diversion of the aid to religious activities
> (although of course the majority might choose to take the opportunity to do
> so).
>
> But this case is importantly different from *Mitchell* in two ways:  it
> involves (i) provision of direct *money *grants (ii) to churches, as
> such.  It thus implicates SOC's insistence that there are "special
> dangers associated with direct money grants to religious institutions,"
> which she thought has traditionally been "based on more than just
> diversion. *In fact, the most important reason for according special
> treatment to direct money grants is that this form of aid falls
> precariously close to the original object of the Establishment Clause's
> prohibition*."  Of course, she never did explain just what she meant by
> that, although presumably she was referring to some sort of entanglement
> concern about the establishment of financial relationships between
> (literally) church and state.
>
> Whatever O'Connor meant, I'd be very surprised if there are five (or
> perhaps even three or four) current Justices who agree with SOC that there
> are special problems with aid to churches, as such, or who think that
> financial aid is constitutionally different from other sorts of aid, in a
> way that establishes a *categorical *constitutional
> disability--especially where, as here, the money is provided *only *as
> direct dollar-for-dollar reimbursement "for the purchase, vendor
> installation and delivery of the playground scrap tire surface material."
>
> All of which is to say that *Committee for Public Educ. v. Regan *might
> get a good deal of attention here.
>
> On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
>> Responding to Marty:  [If it reversed], the Court would NOT necessarily
>> be saying "that the Establishment Clause does not prohibit direct
>> funding to churches, at least where (i) the criteria for funding are fairly
>> rote and nondiscretionary (as Eugene suggests they are here), and (ii) the
>> principal uses of the $$ are not for activities that involve "inherently
>> religious" matters."  {Sorry for all those "nots.")  The State of Missouri
>> did not defend its denial of the application on federal Establishment
>> Clause grounds.  It defended on state constitutional law grounds, and it
>> argued that the state was free to have a broader ban on funding than the
>> Establishment Clause requires.  That argument is about the scope of the
>> "play in the joints' between the Religion Clauses.
>>
>> Perhaps one cannot determine that scope without fixing the boundaries of
>> the Establishment Clause.  That would bring Marty's concerns into play.
>> Under current Establishment Clause law re: d

Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

On first glance, this has the potential to be a huge case.  Not only will
it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
whether *Locke* even survives the departure of Rehnquist and O'Connor) on
the Free Exercise side, but it also is the first SCOTUS case in 16 years --
since *Mitchell v. Helms *-- implicating whether and under what
circumstances a state can offer selective, discretionary "direct funding"
to a religious institution . . . indeed, to a church itself!

Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
"special dangers associated with direct money grants to religious
institutions," and the Court's "concern with direct monetary aid is based
on more than just diversion. In fact, the most important reason for
according special treatment to direct money grants is that this form of aid
falls precariously close to the original object of the Establishment
Clause's prohibition."

It'd be quite something if the Court moved from the current view that such
funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, the SOC
opinion in *Mitchell*) to the view that it's constitutionally required
(i.e., that the state can't discriminate against the church as recipient of
the direct aid); but in light of the composition of the current Court,
that's a very real possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would
mean no funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though
that's been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
> at
> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
>
>
> Howard Friedman
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

Just to be clear:  The grants are not to pay teachers "teach," or to
operate the school, as such, but instead to purchase used tires to be
melted down into playground surfaces.  The application here was for use at
a playground at the church, to be used by children in the church daycare
and preschool.  The State received 44 applications and had funding to pay
for 14 of them.

On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

> To what extent is it either required or ethically questionable to point
> out, if one is objecting to conclusion “a” above, to point out that any
> such doctrine would require “sovereign states” to pony money up to Moslem
> schools, including, say, madrasas funded by Saudi Arabia in order to teach
> various pernicious Wahabi doctrines?  As Donald Trump might put it, I’m
> just asking, though, as with Trump, I’m confident that a lot of Evangelical
> Christians who will not be happy with an argument that their tax dollars
> have to go to fund Islamic schools.
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Friday, January 15, 2016 4:15 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Cert Granted in Blaine Amendment case
>
>
>
> On first glance, this has the potential to be a huge case.  Not only will
> it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
> whether *Locke* even survives the departure of Rehnquist and O'Connor) on
> the Free Exercise side, but it also is the first SCOTUS case in 16 years --
> since *Mitchell v. Helms *-- implicating whether and under what
> circumstances a state can offer selective, discretionary "direct funding"
> to a religious institution . . . indeed, to a church itself!
>
>
>
> Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
> "special dangers associated with direct money grants to religious
> institutions," and the Court's "concern with direct monetary aid is based
> on more than just diversion. In fact, the most important reason for
> according special treatment to direct money grants is that this form of aid
> falls precariously close to the original object of the Establishment
> Clause's prohibition."
>
>
>
> It'd be quite something if the Court moved from the current view that such
> funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, the SOC
> opinion in *Mitchell*) to the view that it's constitutionally required
> (i.e., that the state can't discriminate against the church as recipient of
> the direct aid); but in light of the composition of the current Court,
> that's a very real possibility.
>
>
>
> In theory, at least, all three dispositions are in play:
>
>
>
> i.  Missouri must fund the church
>
> ii.  Missouri can't fund the church
>
> iii. Missouri has discretion to go either way (which in this case would
> mean no funding, per the Missouri Constitution)
>
>
>
> If I had to guess, I'd say (ii) is the least likely outcome, even though
> that's been the governing law for many decades.
>
>
>
> On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
> howard.fried...@utoledo.edu> wrote:
>
> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
> at
> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
>
>
>
>
> Howard Friedman
>
>
> ___
> 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.
>
>
>
> ___
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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

"one that could be decided quite narrowly (distinguishing Locke as being
about a precisely focused state interest in not subsidizing training for
ministry)."

Yes, but in order to issue even that narrow holding, the Court would
necessarily be saying--wouldn't it?--that the Establishment Clause does not
prohibit direct funding to churches, at least where (i) the criteria for
funding are fairly rote and nondiscretionary (as Eugene suggests they are
here), and (ii) the principal uses of the $$ are not for activities that
involve "inherently religious" matters.  And that--a holding that the EC
does not categorically prohibit direct funding to churches--would be fairly
momentous, no?  (even if we've all been expecting it since SOC left the
Court)

On Fri, Jan 15, 2016 at 8:32 PM, Ira Lupu <icl...@law.gwu.edu> wrote:

> According to the 8th Circuit opinion,
> http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf,
> the Missouri Constitution (Article I, Section 7) specifically provides
> that “no money shall ever be taken from the public treasury, directly or
> indirectly, in aid of any church, section or denomination of religion.” The
> opinion says the Church's application, under this program for playground
> resurfacing funds, ranked 5th (and there was money for 14) but was denied
> under that state constitutional provision.
>
> The 8th Circuit rejected the federal constitutional claims (free exercise,
> establishment clause, equal protection clause, free speech clause) on the
> authority of Locke v. Davey, 2004 (WA state does not violate the free
> exercise clause by refusing, for state constitutional reasons, to allow
> state Promise Scholarship recipients to use the scholarships to study in
> programs that train for religious ministry).  So the federal Establishment
> Clause may not require Missouri to reject the Trinity Church application
> (although the playground could indeed be used for worship and religious
> instruction), but the question remains whether the state may have (as in
> Locke) a broader funding restriction than the 1st A requires.
> An important case, but one that could be decided quite narrowly
> (distinguishing Locke as being about a precisely focused state interest in
> not subsidizing training for ministry).
>
> On Fri, Jan 15, 2016 at 6:19 PM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> Just to be clear:  The grants are not to pay teachers "teach," or to
>> operate the school, as such, but instead to purchase used tires to be
>> melted down into playground surfaces.  The application here was for use at
>> a playground at the church, to be used by children in the church daycare
>> and preschool.  The State received 44 applications and had funding to pay
>> for 14 of them.
>>
>> On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
>> slevin...@law.utexas.edu> wrote:
>>
>>> To what extent is it either required or ethically questionable to point
>>> out, if one is objecting to conclusion “a” above, to point out that any
>>> such doctrine would require “sovereign states” to pony money up to Moslem
>>> schools, including, say, madrasas funded by Saudi Arabia in order to teach
>>> various pernicious Wahabi doctrines?  As Donald Trump might put it, I’m
>>> just asking, though, as with Trump, I’m confident that a lot of Evangelical
>>> Christians who will not be happy with an argument that their tax dollars
>>> have to go to fund Islamic schools.
>>>
>>>
>>>
>>> sandy
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>> *Sent:* Friday, January 15, 2016 4:15 PM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Cert Granted in Blaine Amendment case
>>>
>>>
>>>
>>> On first glance, this has the potential to be a huge case.  Not only
>>> will it almost certainly test the limits of *Locke v. Davey* (and,
>>> perhaps, whether *Locke* even survives the departure of Rehnquist and
>>> O'Connor) on the Free Exercise side, but it also is the first SCOTUS case
>>> in 16 years -- since *Mitchell v. Helms *-- implicating whether and
>>> under what circumstances a state can offer selective, discretionary "direct
>>> funding" to a religious institution . . . indeed, to a church itself!
>>>
>>>
>>>
>>> Under O'Connor's controlling opinion in *Mitchell*, recall, there
>>> remain "special dangers associated with

Re: North Carolina Magistrate Law

[Marty Lederman]

Is it safe for me to assume that the utter silence here means that
virtually no one thinks there's merit to the case?  I'm genuinely curious
to hear from anyone who thinks there's more to it than first appears.

On Wed, Dec 9, 2015 at 9:01 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> Just curious:  Does anyone think there's any merit to the EC, EPC and/or
> DPC claims?
>
> On Wed, Dec 9, 2015 at 10:25 AM, Anthony Michael Kreis <kr...@uga.edu>
> wrote:
>
>> FYI: Same-sex couples backed by local LGBT rights organizations filed a
>> complaint this morning in federal court challenging the NC magistrate
>> exemption law that the legislature enacted this year.
>>
>>
>> http://s3.documentcloud.org/documents/2644126/001-NC-complaint-against-marriage-recusal-law.pdf
>>
>> Anthony Michael Kreis, J.D.
>> University of Georgia
>> School of Public & Int'l Affairs
>> Sent from my iPhone
>>
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
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>>
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>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>
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Re: the unconstitutionality of barring Muslims from entering the U.S.

[Marty Lederman]

This post by Steve Vladeck strikes me as just right:

https://www.justsecurity.org/28221/missing-constitutional-analyses-donald-trumps-muslim-immigration-ban/

Three relatively minor additional points:

1.  I don't believe there have ever been any Supreme Court cases in which
the "plenary power" doctrine was ever applied as to expressly *racial or
religious* terms of exclusion; so even as a matter of *stare decisis*,
there's nothing there.

2.  As Paul suggests, when it comes to the EC, there is the additional
complication of whether and how it applies to aliens overseas -- the
old *Lamont
v. Woods* question.  This has practical implications, in that the US
government occasionally spends money overseas to promote certain forms of
religion that it could never do here in the States.

3.  There's something a bit unnerving, frankly, about so many of us ConLaw
academics treating this question so seriously.  Lends the whole thing an
air of "Trump has raised a serious, close, contested question," which, of
course, implies that this is something that should even be a topic of
public debate, rather than dismissed straight away as an abomination.  Not
saying we shouldn't set the record straight once it's being discussed --
Steve and Chip are 100% right not to let the Posner/Spiro view go
unchallenged.  But the whole discussion is deeply disturbing (as are the
Court's precedents, of course!).

On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz  wrote:

> I'm sorry not to see reference in the discussion to preexisting scholarly
> discussions of the question of the extraterritorial reach of the EC or
> other clauses of the First Amendment. No offense to the worthy statements
> of those who have posted, or written elsewhere, although I do think
> academics generally have a comparative advantage at calm and slow
> reflection, not short-term reactions and predictions, in which they are
> largely as subject to cognitive limitations as all humans are.
>
> To that end, may I commend Timothy Zick's The Cosmopolitan First
> Amendment: Protecting Transborder Expressive and Religious Liberties
> (Cambridge University Press, 2015),
>
> http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210.
> His endnotes point to other relevant and reflective treatments. See also
> this valuable report of a task force on religion and U.S. foreign policy
> sponsored by the Chicago Council on Global Affairs:
> http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf.
> I think everyone will find both sources valuable, interesting, and
> time-consuming.
>
>
>
> On Dec 9, 2015, at 11:12 PM, James Oleske  wrote:
>
> Although Rick and Chip agree that Trump's proposal violates the
> Establishment Clause, they travel different paths to that conclusion, and
> those different paths raise (I think) an interesting question:
>
> Under the Court's precedents, is it clear that the "denominational
> discrimination" rule Rick invokes is, like the "ecclesiastical question"
> rule Chip originally invoked, structural in nature and not rights oriented?
>
> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand
> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of
> language that makes the issue of endorsement or disapproval sound in
> individual rights ("person's standing in the political community" "not full
> members of the political community" “perceived by … nonadherents as a
> disapproval[] of their individual religious choices"). In its latest
> explanation of the denominational-discrimination rule in McCreary, the
> Court wrote that "Manifesting a purpose to favor one faith over another ...
> clashes with the 'understanding, reached ... after decades of religious
> war, that liberty and social stability demand a religious tolerance that
> respects the views of all citizens." If we're talking about non-citizens
> who are not part of the American political community, could one colorably
> argue that the denominational-discrimiantion rule -- as currently
> understood by the Court -- does not apply?
>
> - Jim
>
> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan 
> wrote:
>
>> I missed Chip's great post before I asked my question.
>>
>> I agree completely with what Chip says here. It seems like a clear
>> violation of  EC limitations on National power. The clearest command of the
>> EC forbids denominational discrimination by the National government
>> ("Congress shall make no law").
>>
>> The only problem might be standing. Would a non-citizen-foreign-national
>> have standing to challenge the exclusion under the EC?
>>
>> Rick Duncan
>> Welpton Professor of Law
>> University of Nebraska College of Law
>> Lincoln, NE 68583-0902
>>
>>
>> --
>> *From:* Ira Lupu 
>> *To:* Law & Religion issues for Law Academics 
>>
>> *Sent:* Tuesday, December 8, 

Re: North Carolina Magistrate Law

[Marty Lederman]

Just curious:  Does anyone think there's any merit to the EC, EPC and/or
DPC claims?

On Wed, Dec 9, 2015 at 10:25 AM, Anthony Michael Kreis 
wrote:

> FYI: Same-sex couples backed by local LGBT rights organizations filed a
> complaint this morning in federal court challenging the NC magistrate
> exemption law that the legislature enacted this year.
>
>
> http://s3.documentcloud.org/documents/2644126/001-NC-complaint-against-marriage-recusal-law.pdf
>
> Anthony Michael Kreis, J.D.
> University of Georgia
> School of Public & Int'l Affairs
> Sent from my iPhone
>
> ___
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State RFRAs and their equivalents

[Marty Lederman]

Is there a reliable, up-to-date list of state RFRAs and state
constitutional provisions that have, more or less, been construed to
incorporate Sherbert/Yoder?  I know that many are compiled in Chris's 2010
article.  Anything more recent?

Thanks in advance.
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The State of Religious Freedom in America

[Marty Lederman]

In a word, tenuous
.
Or, as the President said
,
shameful (with a nice, subtle little nod to Art. VI).

And this is fourteen years *after *George W. Bush at the Islamic Center

on Sept. 17, 2001 ("Islam is Peace"), which *ought *to have put an end to
the acceptability of such discourse in our public sphere.

Here's to hoping that all of our religious communities and leaders -- and
perhaps even some public officials in addition to the President -- will
respond accordingly.
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Re: High school athlete disqualified under uniform code for wearing headband with religious writing on it

[Marty Lederman]

Invoke the avoidance canon!  There's no religious freedom issue here; but
still, I wondered, for Free Speech purposes, what the state association's
reason might be for decreeing that no writing could appear on headbands.  I
assumed there would be a general "no writing on uniforms" rule, for
purposes of aesthetic uniformity and/or preventing distractions at meets.
Far as I can tell, however, it turns out that there are no rules about
headbands at all, let alone a rule about writing on headbands; nor could I
find any rule generally ruling out writing on anything worn by the
competitors.  (There are rules prohibiting "hair beads," requiring that
"any visible shirt worn under the track jersey, and other visible apparel
worn under the shorts, must be unadorned and of a single (same) color," and
prohibiting "clothing items with multiple logos"--but those don't appear to
apply here.)  See:

https://www.ghsa.net/sites/default/files/documents/Constitution/Constitution2015-16Complete.pdf



On Sat, Nov 14, 2015 at 1:52 PM, Volokh, Eugene  wrote:

> Any thoughts on this story?  A variant of this issue – though as to
> nonreligious speech – has also come up at times in other places, see, e.g.,
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/05/high-school-teams-allowed-to-practice-in-slogan-bearing-shirts-i-cant-breathe/
> .  I assume the GHSA would be a state actor, under *Brentwood Academy*,
> https://scholar.google.com/scholar_case?case=2890003226740495113 .
> Georgia doesn’t have a state RFRA, and Georgia courts haven’t considered
> whether the state constitution’s religious freedom clause should be
> interpreted to follow *Sherbert* / *Yoder* or instead to follow *Smith*.
>
>
>
> Eugene
>
>
>
>
>
>
> http://www.npr.org/sections/thetwo-way/2015/11/12/455766673/high-school-runner-disqualified-after-3rd-place-finish-for-headband-with-writing
>
>
>
> A high school runner was disqualified after finishing third in the Georgia
> cross-country A state championship race for wearing a headband with
> writing on it.
>
> John Green, a senior at West Forsyth High School, ran the race wearing a
> white headband with a Bible verse written on it. After the race, he was
> disqualified for a uniform violation. Though the school appealed the
> disqualification, the Georgia High School Association has said the decision
> will stand.
>
> Now a discussion is taking place about the fairness of the rule and its
> enforcement, unnecessary bureaucracy, and even religious freedom.
>
> ...
>
>
>
> The GHSA released a statement disputing the series of events
>  and saying the decision
> to disqualify Green was a matter of uniform code only.
>
> "First, let's be completely clear that this disqualification had nothing to
> do with what was written on the athlete's headband. The fact that it was of
> a religious nature did not enter into the decision whatsoever.
>
> "Also, despite published reports to the contrary, the athlete and his
> coach were informed before the start of the race that the headband in
> question was illegal and could not be worn during the race.
>
> "After being informed that the headband was illegal, the athlete removed
> the headband and the meet referee assumed he would run the race without it.
> However, at some point after that, the coach and the athlete made the
> decision to ignore the warning and the headband was put back on. Since the
> athlete then ran the race with apparel that had already been ruled illegal,
> there was no choice but to issue a disqualification."
>
> It also included a quote from the referee who disqualified him:
>
> "I was called to the start line by the clerk concerning the headband. It
> was a white headband with large black letters written on it. The coach said
> he could turn it inside-out and make it legal. He did so, and the writing
> was still very visible. The rule said the item had to be unadorned except
> for a logo, and this clearly was not the case. I told the coach and the
> athlete that he could not wear the headband during the competition. The
> athlete took it off — neither the coach nor athlete were happy — and I
> left. When I got back to the finish area, I noticed the athlete had a white
> headband on. So, when I saw him come down the finish hill, I went inside
> the finish corral to watch him finish, and he had the same headband on. I
> told the timer to DQ him, I paged the coach, and told the coach of the
> disqualification."
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> 

Re: Unpacking the Zubik case

[Marty Lederman]

In hopes that it will be of some assistance, I've pulled together a
preliminary categorization of all 37 of the petitioners, based upon the
representations in the *cert.*-stage briefs.  Please let me know if you
notice any mistakes:


*Categories of petitioners in the seven cases:*


*Employers using insured employee plans (5)*


Priests for Life (14-1453)

Catholic University of America (14-1505) (also uses insured student plan)

Oklahoma Wesleyan University (15-119)

Oklahoma Baptist University (15-119) (also uses insured student plan)

Geneva College (15-191) (also uses insured student plan)


*Employers using insured student plans (4)*


Catholic University of America (14-1505) (also uses insured employee plan)

Oklahoma Baptist University (15-119) (also uses insured employee plan)

Southern Nazarene University (15-119) (also uses self-insured employee plan)

Geneva College (15-191) (also uses insured employee plan)


*Employers using self-insured, TPA-administered, non-“church plan” employee
plans (3)*


Thomas Aquinas College (14-1505)

East Baptist University (15-35)

Southern Nazarene University (15-119) (also has insured student plan)


*Employers using self-insured, TPA-administered “church plans” for
employees, whose TPAs are not required to provide contraceptive coverage
(18)*


Catholic Charities of the Diocese of Pittsburgh, Inc. (14-1418)

St. Martin Center, Inc. (14-1418)

Prince of Peace Center, Inc. (14-1418)

Erie Catholic Preparatory School (14-1418)

Consortium of Catholic Academies of the Archdiocese of Washington, Inc.
(14-453)

Archbishop Carroll High School, Inc. (14-453)

Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc.
(14-453)

Mary of Nazareth Roman Catholic Elementary School, Inc. (14-453)

Catholic Charities of the Archdiocese of Washington, Inc. (14-453)

Victory Housing, Inc. (14-453)

Catholic Information Center, Inc. (14-453)

Houston Baptist University (15-35)

Westminster Theological Seminary (15-35)

Little Sisters of the Poor Home for the Aged of Denver (15-105) (whose
primary plan TPA--Christian Brothers Services—already has promised not to
provide contraceptive coverage even if Little Sisters opts out)

Little Sisters of the Poor, Baltimore, Inc. (15-105)

Reaching Souls International, Inc. (15-105)

Truett-McConnell College, Inc. (15-105)

Mid-America Christian University (15-119)


*Wholly exempt entities that “sponsor” church plans for other employers (3)*


Roman Catholic Diocese of Pittsburgh, Inc. (14-1418)

Roman Catholic Diocese of Erie (14-1418)

Roman Catholic Archbishop of Washington (14-1505)


*Directors of wholly exempt entities that “sponsor” church plans for other
employers (2)*


The Most Reverend David A. Zubik (14-1418)

The Most Reverend Lawrence T. Persico (14-1418)


*Directors of an employer (Priests for Life) using an insured employee plan
(3)*


Father Frank Pavone (14-1453)

Alveda King (14-1453)

Janet Morana (14-1453)


*Employee church plans themselves (2)*


Christian Brothers Employee Benefit (15-105)

GuideStone Financial Resources of the Southern Baptist Convention (15-105)


*An employee church-plan TPA (1)*


Christian Brothers Services (15-105) (CBS has already said it will not
provide contraceptive coverage if requested to do so)



*37 petitioners total *(four of which use both employee and student plans)


On Sun, Nov 8, 2015 at 4:54 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> FYI -- I hope some of you might find this helpful:
>
>
> http://balkin.blogspot.com/2015/11/who-is-zubik-in-zubik-v-burwell-and-why.html
>
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Re: Unpacking the Zubik case

[Marty Lederman]

Interesting, thanks, Greg.  If ETBU's plan were entirely self-administered,
it would not be required to provide contraception coverage.  But the
declaration of the University President that's cited in the brief says:

29. East Texas Baptist is self-insured, and its employees receive health
benefits through the East Texas Baptist University Healthcare Benefits
Plan, or “Plan.” East Texas Baptist is both the Plan Sponsor and the Plan
Administrator. Ex. A-7 (Plan at 1).

30. *East Texas Baptist has contracted with Mutual Assurance
Administrators, Inc. to act as the third party administrator for the Plan*.
Ex. A-7 (Plan at 1).


So, MAA is a TPA which, if it wishes, could provide the coverage to ETBU's
employees.  On the other hand, it could also choose not to do so (e.g., to
stay in ETBU's good graces), or ETBU could choose a different TPA.


On Mon, Nov 9, 2015 at 6:56 PM, Gregory S. Baylor <gbay...@adflegal.org>
wrote:

> I think there may be one mistake regarding East Texas Baptist University.
> Its cert petition (p. 14) says “ETBU is both the sponsor and administrator
> of its own self-insured plan.”  I haven’t read the cert opp or the reply,
> and I don’t know if this comes up in either.
>
>
>
> Greg Baylor
>
>
>
>
> [image: Alliance Defending Freedom] <http://www.adflegal.org/>   Gregory
> S. Baylor
> Senior Counsel, Director of Center for Religious Schools
> 202-393-8690 (Office)
> 202-888-7628 (Direct Dial)
> 202-347-3622 (Fax)
> gbay...@adflegal.org
> ADFlegal.org
> Not Licensed in DC
> Practice Limited to Federal Court
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Monday, November 09, 2015 7:50 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Unpacking the Zubik case
>
>
>
> In hopes that it will be of some assistance, I've pulled together a
> preliminary categorization of all 37 of the petitioners, based upon the
> representations in the *cert.*-stage briefs.  Please let me know if you
> notice any mistakes:
>
>
>
>
> * Categories of petitioners in the seven cases**:*
>
>
>
> *Employers using insured employee plans (5)*
>
>
> Priests for Life (14-1453)
>
> Catholic University of America (14-1505) (also uses insured student plan)
>
> Oklahoma Wesleyan University (15-119)
>
> Oklahoma Baptist University (15-119) (also uses insured student plan)
>
> Geneva College (15-191) (also uses insured student plan)
>
>
>
> *Employers using insured student plans (4)*
>
>
> Catholic University of America (14-1505) (also uses insured employee plan)
>
> Oklahoma Baptist University (15-119) (also uses insured employee plan)
>
> Southern Nazarene University (15-119) (also uses self-insured employee
> plan)
>
> Geneva College (15-191) (also uses insured employee plan)
>
>
>
> *Employers using self-insured, TPA-administered, non-“church plan”
> employee plans (3)*
>
>
> Thomas Aquinas College (14-1505)
>
> East Baptist University (15-35)
>
> Southern Nazarene University (15-119) (also has insured student plan)
>
>
>
> *Employers using self-insured, TPA-administered “church plans” for
> employees, whose TPAs are not required to provide contraceptive coverage
> (18)*
>
>
> Catholic Charities of the Diocese of Pittsburgh, Inc. (14-1418)
>
> St. Martin Center, Inc. (14-1418)
>
> Prince of Peace Center, Inc. (14-1418)
>
> Erie Catholic Preparatory School (14-1418)
>
> Consortium of Catholic Academies of the Archdiocese of Washington, Inc.
> (14-453)
>
> Archbishop Carroll High School, Inc. (14-453)
>
> Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc.
> (14-453)
>
> Mary of Nazareth Roman Catholic Elementary School, Inc. (14-453)
>
> Catholic Charities of the Archdiocese of Washington, Inc. (14-453)
>
> Victory Housing, Inc. (14-453)
>
> Catholic Information Center, Inc. (14-453)
>
> Houston Baptist University (15-35)
>
> Westminster Theological Seminary (15-35)
>
> Little Sisters of the Poor Home for the Aged of Denver (15-105) (whose
> primary plan TPA--Christian Brothers Services—already has promised not to
> provide contraceptive coverage even if Little Sisters opts out)
>
> Little Sisters of the Poor, Baltimore, Inc. (15-105)
>
> Reaching Souls International, Inc. (15-105)
>
> Truett-McConnell College, Inc. (15-105)
>
> Mid-America Christian University (15-119)
>
>
>
> *Wholly exempt entities that “sponsor” church plans for other employers
> (3)*
>
>
> Roman Catholic Diocese of Pittsburgh, Inc. (14-1418)
>
> Roman Catholic Diocese of Erie (14-1418)
>
> Roman Catho

Unpacking the Zubik case

[Marty Lederman]

FYI -- I hope some of you might find this helpful:

http://balkin.blogspot.com/2015/11/who-is-zubik-in-zubik-v-burwell-and-why.html
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Re: Cert Granted in Non-Profit Contraceptive Mandate Cases

[Marty Lederman]

Note that the Court did not grant on the discrimination-based questions.

More here:

http://balkin.blogspot.com/2015/11/court-grants-all-seven-nonprofit.html

*Court grants all seven nonprofit petitions in contraceptive coverage
cases, henceforth to be collectively referred to as "Zubik v. Burwell"*

Marty Lederman

Today the Court decided not to decide
<http://www.supremecourt.gov/orders/courtorders/110615zr_j4ek.pdf> among
the seven petitions in the contraceptive cases--it granted (and
consolidated) them all on the RFRA question.  The Court did *not *grant on
the two questions alleging that the government has impermissibly
discriminated among religious organizations, one of which (in *Zubik*) was
nominally a RFRA question and the other of which (in *Little Sisters*) was
framed as a First Amendment question.

The case will be argued some time between March 21 and March 30.
Presumably only one of the five counsel of record for petitioners will
present oral argument--if I had to guess, it'll be Paul Clement or Noel
Francisco.  (The Court itself ordinarily leaves it to the parties in such a
situation to figure out a way to decide which counsel will argue.)  The
Court has also asked the parties
<http://www.scotusblog.com/wp-content/uploads/2015/11/14-1418-et-al.-RFRA-Briefing-Proposal-Request-Letter.pdf>
"to
submit a joint proposal for briefing on the merits that will keep the
number of briefs to a minimum and avoid repetition of argument."  Therefore
I don't think we should expect to see 400+ pages of party briefs topside
and 200+ pages on reply.  The petitioners might even decide to submit a
single, unified brief at each stage.

The decision of the Court will likely be captioned, and popularly referred
to, as No. 14-1418, *Zubik v. Burwell*, which was the first of the
petitions to be filed.

*Compendium of posts on Hobby Lobby and related cases*
<http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html>

Posted 4:18 PM by Marty Lederman [link]
<http://balkin.blogspot.com/2015/11/court-grants-all-seven-nonprofit.html>

On Fri, Nov 6, 2015 at 2:38 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> The Supreme Court today granted review in 7 cases challenging the
> Affordable Care Act contraceptive mandate accommodation for religious
> non-profits. More at
> http://religionclause.blogspot.com/2015/11/supreme-court-grants-review-in-7-cases.html
>
>
> Howard Friedman
>
> ___
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Re: Nonprofit challenges to the contraceptive coverage accommodation: On to the Supeme Court

[Marty Lederman]

http://balkin.blogspot.com/2015/10/supreme-court-sets-date-for.html

*Supreme Court sets date for consideration of nonprofit RFRA challenges to
contraception coverage accommodation*

Marty Lederman

As expected, the petitioners in Nos. 15-105, *Little Sisters of the Poor v.
Burwell, *and 15-119, *Southern Nazarene Univ. v. Burwell*, filed their
reply briefs earlier this week (*Little Sisters *here
<https://www.justsecurity.org/wp-content/uploads/2015/10/littlesisters.certreply.pdf>
; *Southern Nazarene* *here*
<http://www.becketfund.org/wp-content/uploads/2015/10/USSC-15-119-Reply-Brief.pdf>),
and the Court has now set all seven pending petitions for consideration at
its October 30 conference.  That means the Court might announce as early as
Monday, November 9 which, if any, of the cases it will consider.  As I
explained here
<http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>
 and here <http://balkin.blogspot.com/#8432040517728691563>, I think it is
likely that the Court will, at a minimum, accept the government's suggestion
<https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>
and
grant the petition in No. 14-1505
<https://www.justsecurity.org/wp-content/uploads/2015/07/dcarchbishop.pet_.pdf>
, *Roman Catholic Archbishop of Washington v. Burwell*.  The
petitioners in *Little
Sisters *argue that the Court should grant their petition, too, principally
because they also raise a First Amendment question concerning the
constitutionality of the lines the government has drawn between the two
different accommodations it has offered to different sorts of religious
organizations.  The government argues at pages 21-24 of its brief
<https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>
that
the Court should not consider that constitutional question, but should
instead confine its grant to the RFRA question.

On Wed, Sep 30, 2015 at 7:19 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

>
> http://balkin.blogspot.com/2015/09/on-to-supreme-court-status-update-on.html
>
> *On to the Supreme Court: Status update on Roman Catholic
> Archbishop, Little Sisters, and the other nonprofit contraception
> accommodation cases*
>
> Marty Lederman
>
> Since I last wrote
> <http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>,
> about the nonprofit RFRA challenges to the government's contraceptive
> coverage accommodation, a circuit split has developed, by virtue of a pair
> of decisions by the U.S. Court of Appeals for Eighth Circuit--*Sharpe
> Holdings, Inc. v. HHS
> <http://media.ca8.uscourts.gov/opndir/15/09/141507P.pdf>* and *Dordt
> College v. Burwell <http://media.ca8.uscourts.gov/opndir/15/09/142726P.pdf>*.
> In each case, the court of appeals affirmed grants of preliminary
> injunctions in favor of the RFRA claimants.  The court found that the
> plaintiffs were likely to prevail on showing that the contraception
> coverage accommodation substantially burdens their religious exercise.  As
> for the "least restrictive means" part of the RFRA analysis, the court did
> not assess the merits, but simply concluded that the government had not yet
> offered evidence, at the p.i. stage, sufficient to carry its burden of
> showing that denial of the requested exemptions would be the least
> restrictive means of advancing what the court assumed to be a compelling
> governmental interest.
>
> Meanwhile, over in the Supreme Court, there are seven petitions for
> *certiorari*pending, from cases decided by the D.C., Third, Fifth and
> Tenth Circuits.  This afternoon, in its brief in opposition to
> <https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>*certiorari
> <https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>
>  *in
> Nos. 15-105, *Little Sisters of the Poor v. Burwell, *and 15-119, *Southern
> Nazarene Univ. v. Burwell*, the government informed the Court that
> *certiorari* in an appropriate case is now warranted in order to resolve
> the split created by the recent Eighth Circuit decisions.
>
> As expected, the government argues that the most suitable vehicle for the
> Court's review is Case No. 14-1505
> <https://www.justsecurity.org/wp-content/uploads/2015/07/dcarchbishop.pet_.pdf>
> , *Roman Catholic Archbishop of Washington v. Burwell.  *As I explained
> earlier
> <http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>,
> and as the government elaborates in its brief
> <http://in%20its%20brief%20in%20opposition%20to%20certiorari%20in%20nos.%2015-105%2C%20little%20sister

"Call for Constitutional Resistance"

[Marty Lederman]

FYI:

https://americanprinciplesproject.org/founding-principles/statement-calling-for-constitutional-resistance-to-obergefell-v-hodges%E2%80%AF/

We call on all federal and state officeholders:

*To refuse to accept Obergefell as binding precedent for all but the
specific plaintiffs in that case.*

To recognize the authority of states to define marriage, and the right of
federal and state officeholders to act in accordance with those definitions.

To pledge full and mutual legal and political assistance to anyone who
refuses to follow *Obergefell *for constitutionally protected reasons.

To open forthwith a broad and honest conversation on the means by which
Americans may constitutionally resist and overturn the judicial usurpations
evident in *Obergefell*.

And in a companion "call to action" (
https://campaignforamericanprinciples.com/scholars-statement/), Robbie
George solicits scholars' signatures to "call on all who aspire to be our
next President to pledge to treat *Obergefell*, not as 'the law of the
land,' but rather (to once again quote Justice Alito) as 'an abuse of
judicial power,'” and to "refuse to recognize *Obergefell* as creating a
binding rule controlling other cases or their own conduct as President."

Does anyone recall any remotely similar initiative by legal scholars in the
past half-century or so?  Predictions on how many, if any, presidential
candidates will make the pledge?
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Nonprofit challenges to the contraceptive coverage accommodation: On to the Supeme Court

[Marty Lederman]

http://balkin.blogspot.com/2015/09/on-to-supreme-court-status-update-on.html

*On to the Supreme Court: Status update on Roman Catholic
Archbishop, Little Sisters, and the other nonprofit contraception
accommodation cases*

Marty Lederman

Since I last wrote
<http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>,
about the nonprofit RFRA challenges to the government's contraceptive
coverage accommodation, a circuit split has developed, by virtue of a pair
of decisions by the U.S. Court of Appeals for Eighth Circuit--*Sharpe
Holdings, Inc. v. HHS
<http://media.ca8.uscourts.gov/opndir/15/09/141507P.pdf>* and *Dordt
College v. Burwell <http://media.ca8.uscourts.gov/opndir/15/09/142726P.pdf>*.
In each case, the court of appeals affirmed grants of preliminary
injunctions in favor of the RFRA claimants.  The court found that the
plaintiffs were likely to prevail on showing that the contraception
coverage accommodation substantially burdens their religious exercise.  As
for the "least restrictive means" part of the RFRA analysis, the court did
not assess the merits, but simply concluded that the government had not yet
offered evidence, at the p.i. stage, sufficient to carry its burden of
showing that denial of the requested exemptions would be the least
restrictive means of advancing what the court assumed to be a compelling
governmental interest.

Meanwhile, over in the Supreme Court, there are seven petitions for
*certiorari*pending, from cases decided by the D.C., Third, Fifth and Tenth
Circuits.  This afternoon, in its brief in opposition to
<https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>*certiorari
<https://www.justsecurity.org/wp-content/uploads/2015/09/15-105-15-119-LSP-SNU-v.-Burwell-2015-09-30.OSGbrief.pdf>
*in
Nos. 15-105, *Little Sisters of the Poor v. Burwell, *and 15-119, *Southern
Nazarene Univ. v. Burwell*, the government informed the Court that
*certiorari* in an appropriate case is now warranted in order to resolve
the split created by the recent Eighth Circuit decisions.

As expected, the government argues that the most suitable vehicle for the
Court's review is Case No. 14-1505
<https://www.justsecurity.org/wp-content/uploads/2015/07/dcarchbishop.pet_.pdf>
, *Roman Catholic Archbishop of Washington v. Burwell.  *As I explained
earlier
<http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>,
and as the government elaborates in its brief
<http://in%20its%20brief%20in%20opposition%20to%20certiorari%20in%20nos.%2015-105%2C%20little%20sisters%20of%20the%20poor%20v.%20burwell%2C%20and%2015-119%2C%20%20southern%20nazarene%20univ.%20v.%20burwell%2C/>
today,
the*Roman Catholic Archbishop *petition is the best candidate for
*cert. *because
of several considerations, including that:

-- The case was decided on the merits (cross-motions for summary judgment),
not on a motion for preliminary relief.

-- The petitioners present the full range of insurance arrangements that
have given rise to RFRA claims in the nonprofit context, including insured
plans, self-insured plans, and self-insured church plans.  (As the opinions
in the recent Tenth Circuit case demonstrate, the RFRA analysis is very
different with respect to each distinct sort of plan.)  This petition also
involves both employee and student plans.

-- The petitioners object to the entire range of the 18 covered
contraception methods, not only the four at issue in *Hobby Lobby* and
other cases.

-- Judge Pillard's two opinions in favor of the government are very
thorough (and she addressed the statutory claim, as well).  The *en
banc* petition
in the case also prompted two distinct dissenting opinions, by Judges Brown
and Kavanaugh, which differ from one another in important respects.

-- Most importantly, the D.C. court of appeals, unlike the other courts of
appeals thus far, squarely and thoroughly addressed both the
substantial-burden and so-called "strict scrutiny" components of RFRA.

Moreover, the *Roman Catholic Archbishop* petitioners, represented by Noel
Francisco of Jones Day, have honed their arguments, especially on the
"substantial burden" question, to eliminate many that are easily countered
(including most of those I discuss here
<http://balkin.blogspot.com/2014/07/unpacking-forthcoming-rfra-challenges.html>)
and to emphasize those that are most likely to engage the Court.  (For what
it's worth, I have offered some preliminary thoughts on those arguments in
the final sections of this post
<http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html>,
beginning with the section entitled "Substantial Burdens and Complicity.")

Some of the other petitions also have one or more of these virtues; but no
other has them all.

The Court originally was scheduled to consider some of the petitions--those
that are fully briefed--a

Plaintiffs in Kim Davis case allege that adulterated licenses violate their constitutional rights

[Marty Lederman]

The plaintiffs apparently agree with Walter that the new Davis-prescribed
adulterated license forms create a "two-tier" system of marriage licensing
that violates the Constitution:

http://balkin.blogspot.com/2015/09/plaintiffs-in-miller-v-davis-ask-court.html

*Plaintiffs in Miller v. Davis ask court to order Deputy Clerks to issue
unadulterated marriage licenses*

Marty Lederman

The plaintiffs in the Kim Davis case have now made a motion
<http://the%20form%20of%20the/> to Judge Bunning to require the Deputy
Clerks in Rowan County to go back to issuing marriage licenses in the form
that Deputy Clerk Mason was issuing while Clerk Kim Davis was in federal
custody--rather than the radically adulterated form that Davis directed
Mason to issue once she returned to work.  (For much more on the
machinations that led to this motion, and the differences between the two
marriage license forms, see my post
<http://balkin.blogspot.com/2015/09/dont-be-surprised-if-kim-davis-is.html>
from
Saturday.)

The plaintiffs are also asking the judge to require the Deputy Clerks to
reissue, in unaltered form, any licenses that they issued over the past
week, and to specifically order Kim Davis not to interfere with the
Deputies.  For the time being they are *not *asking the judge to hold Davis
in contempt of his orders; but they are asking the judge to put Davis on
notice that any violation of the new order--that is, any interference on
her part--"will result in civil sanctions, including but not limited to (a)
the placement of the Rowan County Clerk’s Office into a receivership for
the limited purposes of issuing marriage licenses, and (b) the imposition
of civil monetary fines as appropriate and necessary to coerce Davis’
compliance with this Court’s Order."

What is the ground for plaintiffs' complaint about the Davis-prescribed,
altered form of marriage licenses?  They do not invoke the Fourteenth
Amendment in so many words but, as I read it, they are alleging that the
use of the altered forms violates their rights under the Fourteenth
Amendment in two respects:

(i) First, although the plaintiffs do *not* argue that a marriage performed
pursuant to such a license would be invalid under Kentucky law (to the
contrary--see the quotation from *Pinkhasov v. Petocz* in footnote 2 of the
plaintiffs' filing), they assert that couples acting in reliance upon such
licenses will live under the shadow of possible future challenges to the
validity of their marriages:

Because a valid license is a prerequisite to solemnization, see KRS §
402.080, and because Kentucky courts have yet to address whether defects in
a license of this magnitude can void the marriage, any marriage performed
pursuant to the licenses issued last week by Davis’ office is potentially
open to a future challenge to its validity. . . .

[E]ven if the altered licenses were ultimately determined to be valid at
some future point,  . . . Davis’ interference has caused substantial injury
to Plaintiffs and members of the putative class by intentionally creating
uncertainty surrounding their exercise of the fundamental right of
marriage."

Presumably it is plaintiffs' view that the creation of this "uncertainty"
violates their Fourteenth Amendment rights:  Davis's "intentional creation
of such uncertainty surrounding the exercise of a fundamental right like
marriage," they write, "--an uncertainty not faced by couples in other
counties – is a significant burden and injury that Plaintiffs and members
of the putative class ought not bear."

(ii) Second, and more interestingly, plaintiffs allege that their
(presumably federal) rights have been violated because they have been
subject to "humiliation and stigma associated with the receipt of marriage
licenses that are effectively imprinted with Davis’ opprobrium."  They
write:

The marriage licenses currently issued by the Rowan County Clerk’s Office
are so materially altered that they create a two-tier system of marriage
licenses throughout state.  The adulterated marriage licenses received by
Rowan County couples will *effectively feature a stamp of animus against
the LGBT community*, signaling that, in Rowan County, the government’s
position is that LGBT couples are second-class citizens unworthy of
official recognition and authorization of their marriage licenses but for
this Court’s intervention and Order.

For more on the possibility that such a "stamp of animus" might violate the
Fourteenth Amendment, even if the same license form is used for same-sex
and opposite-sex couples alike in Rowan County, see Mike Dorf's post
<http://www.dorfonlaw.org/2015/09/kim-davis-and-nature-of-fundamental.html>
from
earlier today.  (I contributed a comment to that post with respect to this
Fourteenth Amendment question.)
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Civil determination of a religious question in Rowan County?

[Marty Lederman]

A report to the court of another of the Rowan County Deputy Clerks today
includes the following:

"Mrs. Plank reports that, to the best of her knowledge, all requests for
marriage licenses requested by legally qualified couples have been issued.
The only denial of a marriage license application that has occurred within
the last two weeks was to a gentleman who stated that he wanted a license
that would permit him to marry 'Jesus'.  *When it was explained to the
individual that both parties had to be present, he stated, 'Jesus is always
present'.*  After being denied, the gentleman returned later and presented
a type of Power of Attorney document issued by his church granting him
authority to sign 'Jesus'’ name.  *Since both parties were not present*
these requests were denied."

Impermissible civil assessment of a fundamentally religious question?

(P.S.  The passage from the filing today, quoted above, is 100% true.  My
"legal" question, however, is of course facetious -- although given the
Court's recent movement toward almost absolute deference to private
religious assessments (cf. *Hobby Lobby*), it's not obvious on first glance
why the Clerk's Office was permitted to act on the basis that "Jesus was
not present.")
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Re: Is Kim Davis complying with the injunction?

[Marty Lederman]

I try to break down the various distinct questions at the end of this post.  
I'd be especially interested in what others think of the 14th Amendment 
argument that plaintiffs are now hinting at:

http://balkin.blogspot.com/2015/09/dont-be-surprised-if-kim-davis-is.html

Sent from my iPhone

> On Sep 19, 2015, at 12:56 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
> 
> I wonder if any County official or member of the public (one of the new 
> licensees) has asked for a formal opinion of the Kentucky AG re: the validity 
> of the licenses issued under these circumstances: 
> http://ag.ky.gov/civil/opinions/Pages/default.aspx
> 
> Such an opinion (which may take a while to produce) would clear up the 
> validity question.
> 
> I'll leave to Judge Bunning the question of how best to deal with the 
> behavior of Ms. Davis, which seems contemptuous to me.  I'd be interested in 
> whether others disagree with that characterization, and in appraisals of 
> Judge Bunning's options.
> 
> P.S. I saw Judge Bunning's father shut out the Yankees at Yankee Stadium on a 
> Sunday afternoon in the late 1950's.  He was a much better pitcher than a 
> Senator. 
> 
>> On Fri, Sep 18, 2015 at 10:55 PM, Marty Lederman <lederman.ma...@gmail.com> 
>> wrote:
>> One week ago, on Sept. 11, Judge Bunning issued the following order when he 
>> released Kim Davis from federal custody:
>> 
>> "Defendant Davis shall not interfere in any way, directly or indirectly, 
>> with the efforts of her deputy clerks to issue marriage licenses to all 
>> legally eligible couples.  If Defendant Davis should interfere in any way 
>> with their issuance, that will be considered a violation of this Order and 
>> appropriate sanctions will be considered."  
>> 
>> 1.  When Davis returned to work on Monday, she ordered Deputy Clerk Brian 
>> Mason to change the form of licenses that he issues in Rowan County.  The 
>> first such license Mason issued on Monday, for example, reads:  "Issued this 
>> 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB, Morehead, 
>> Kentucky by Brian Mason [signature initials], Notary Public." 
>> 
>> There is no indication of the Office from which the license was issued, the 
>> County, or Mason's title as Deputy Clerk (and no mention of Davis, of 
>> course).  From all that appears, Mason issued the license in his capacity as 
>> Notary Public, not Deputy Clerk.  
>> 
>> This is very different from the licenses Mason was issuing while Davis was 
>> in custody.
>> 
>> 2.  Davis's attorney issued a statement on Monday:
>> 
>> "The license that went out today does not violate Kim Davis's conscience. If 
>> it's satisfactory to the ... court, then I think we will have found that 
>> win-win solution that we have been asking for all along."
>> 
>> 3.  That same day, Democratic Gov. Steve Beshear said that the licenses 
>> issued "are going to be recognized as valid in the Commonwealth."
>> 
>> 4.  Today, counsel for Deputy Clerk Brain Mason filed the following report 
>> with Judge Bunning, as the judge had required:
>> 
>> Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian Mason, 
>> and CJA having been appointed to represent him in the above styled matter, 
>> pursuant to the order of September 8, 2015, makes the following report.
>> 
>> Mr. Mason informs me and the record confirms such, that he has issued the 
>> appropriate marriage licenses for same-sex marriage pursuant to the court's 
>> orders, and has continued to do so in light of changes that had been made by 
>> the Clerk, Ms. Davis.
>> 
>> He is the only deputy clerk that is doing so by mutual agreement between the 
>> others wherein Mr. Mason agreed he would take care of those matters himself 
>> if it would ease the stress of the situation, although they all stand ready 
>> to do so in his absence as they had promised the court.
>> 
>> On September 14, 2015 Ms. Davis came into their office and he [Mason] tells 
>> me the following:
>> 
>> Kim Davis came to the office and confiscated all the original forms, and 
>> provided a changed form which deletes all mentions of the County, fills in 
>> one of the blanks that would otherwise be the County with the Court's 
>> styling, deletes her name, deletes all of the deputy clerk references, and 
>> in place of deputy clerk types in the name of Brian Mason, and has him 
>> initial rather than sign. There is now a notarization beside his initials in 
>> place of where otherwise signatures would be.
>> 
>> I discussed w

Is Kim Davis complying with the injunction?

[Marty Lederman]

One week ago, on Sept. 11, Judge Bunning issued the following order when he
released Kim Davis from federal custody:

"Defendant Davis shall not *interfere* *in any way, directly or indirectly*,
with the efforts of her deputy clerks to issue marriage licenses to all
legally eligible couples.  If Defendant Davis should interfere in any way
with their issuance, that will be considered a violation of this Order and
appropriate sanctions will be considered."


1.  When Davis returned to work on Monday, she ordered Deputy Clerk Brian
Mason to change the form of licenses that he issues in Rowan County.  The
first such license Mason issued on Monday, for example, reads:  "Issued
this 9/14/2015, Pursuant to Federal Court Order No. 15-CY-44, DLB,
Morehead, Kentucky by Brian Mason [signature initials], Notary Public."

There is no indication of the Office from which the license was issued, the
County, or Mason's title as Deputy Clerk (and no mention of Davis, of
course).  From all that appears, Mason issued the license in his capacity
as Notary Public, not Deputy Clerk.

This is very different from the licenses Mason was issuing while Davis was
in custody.

2.  Davis's attorney issued a statement on Monday:

"The license that went out today does not violate Kim Davis's conscience.
If it's satisfactory to the ... court, then I think we will have found that
win-win solution that we have been asking for all along."

3.  That same day, Democratic Gov. Steve Beshear said that the licenses
issued "are going to be recognized as valid in the Commonwealth."

4.  Today, counsel for Deputy Clerk Brain Mason filed the following report
with Judge Bunning, as the judge had required:

Comes now the Hon. Richard A. Hughes, counsel for the Defendant Brian
Mason, and CJA having been appointed to represent him in the above styled
matter, pursuant to the order of September 8, 2015, makes the following
report.

Mr. Mason informs me and the record confirms such, that he has issued the
appropriate marriage licenses for same-sex marriage pursuant to the court's
orders, and has continued to do so in light of changes that had been made
by the Clerk, Ms. Davis.

He is the only deputy clerk that is doing so by mutual agreement between
the others wherein Mr. Mason agreed he would take care of those matters
himself if it would ease the stress of the situation, although they all
stand ready to do so in his absence as they had promised the court.

On September 14, 2015 Ms. Davis came into their office and he [Mason] tells
me the following:

Kim Davis came to the office and confiscated all the original forms, and
provided a changed form which deletes all mentions of the County, fills in
one of the blanks that would otherwise be the County with the Court's
styling, deletes her name, deletes all of the deputy clerk references, and
in place of deputy clerk types in the name of Brian Mason, and has him
initial rather than sign. There is now a notarization beside his initials
in place of where otherwise signatures would be.

I discussed with Mr. Mason in my opinion he had done nothing wrong and is
continuing to follow his sworn testimony to the court, however *it also
appears to this counsel those changes were made in some attempt to
circumvent the court's orders and may have raised to the level of
interference against the court's orders*. Mr. Mason is concerned because he
is in a difficult position that he continues to issue the licenses per the
court's order, but is issuing licenses which had some remote questionable
validity, but now with these changes may in fact have some substantial
questions about validity.

It is part of this report to notify the court of the changes and it is
expected there will be other parties to the action that will bring a
request to this court for a review on whether or not her [Davis's] actions
are against the orders of the court and the likelihood that the validity of
these marriages licenses would have to be entertained if not in federal
district court, state courts. Again Mr. Mason's concern is he does not want
to be the party that is issuing invalid marriage licenses and he is trying
to follow the court's mandate as well as his superior ordering him to issue
only these changed forms and only with initials and only as notarized,
which in the last example I have seen are not even notarized. To date, upon
the filing of this report the circumstances remain the same, and counsel
addresses this court with the newest information he has available.

5.  Also today, in a pleading concerning their motion for class
certification, the plaintiffs wrote:

Davis has modified the marriage licenses currently provided by her office
to state that they are issued only “Pursuant to Federal Court Order
#15-CY-44 DLB.” . . .  Additional material alterations made by Davis to the
licenses issued by her office include requiring her clerk to issue licenses
in his capacity as a “notary public” rather than a deputy clerk of the
Rowan County 

Contraceptive care regulation -- we have a circuit split!

[Marty Lederman]

http://media.ca8.uscourts.gov/opndir/15/09/141507P.pdf

I haven't yet read it, but I think this makes it *very *likely the Court
will grant the petition in *Roman Catholic Archbishop of DC*, which will be
considered at the "long" conference on Sept. 28.  It's even possible, I
suppose, that the government, in its forthcoming 28(j) letter about the
CTA8 case, might suggest the Court grant the CTADC case.
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