RE: Bible classes in elementary schools

[Michael Masinter]

I grew up in Charleston, W.Va. and attended Kanawha County public schools 
beginning in 1952 from the first grade through the ninth grade; even before 
Engle and Abbington Township, we did not have bible study classes.  The school 
district was surprisingly compliant with the constitution as construed by 
SCOTUS; it ended de jure segregation in the fall of 1954, and ended opening 
prayers following Engle.  Unfortunately, the school district was not 
representative of the state as a whole.

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 Chambers, Hank
Sent: Monday, April 24, 2017 8:52 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Bible classes in elementary schools


Hello all -



My wife grew up Catholic in Bluefield, Mercer County, W.Va., in the 1980s, and 
took Bible in middle school.  Her take: "Of course, it is unconstitutional and 
has been for decades, and you felt like an outsider/strange one if you did not 
take the class." I was bemused when I heard about the Bible class decades ago, 
but chalked it up to local custom.



Go to  http://www.mercerbits.org/aboutus.htm  for more information about the 
Bible in the Schools program. Very interesting.



Hank


Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hcham...@richmond.edu






From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Steven Jamar >
Sent: Monday, April 24, 2017 4:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone


On Apr 23, 2017, at 11:48 PM, Finkelman, Paul 
> wrote:
The community apparently raises $500,000 a year for the course - that should 
cover attorney's fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
paul.finkel...@pitt.edu
o) 412-648-2079
c) 518-605-0296



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
> wrote:

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



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


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

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu]

Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 

Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Josh,


Excellent work within extremely short time constraints.


Mike


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Tuesday, October 11, 2016 8:30:01 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Re: "California Court Issues TRO Against Kaporos Practices"


   Those interested in the California Kaporos case might want to 
check out Prof. Josh Blackman’s amicus brief, 
https://www.scribd.com/document/327148724/Brief-Amicus-Curiae-of-Professor-Joshua-Blackman-in-United-Poultry-Concerns-v-Chabad-of-Irvine,
 which argues that there’s no federal jurisdiction; here's the key passage:



   First, plaintiffs wildly speculate that over the next decade, if 
three-hundred chickens are killed annually at a cost of $25 each, the amount in 
controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument 
is laughable, and warrants sanctions under Rule 11. There is no principle of 
federal jurisprudence under which a plaintiff can arbitrarily aggregate 
speculative damages over the course of a decade to meet the minimum amount in 
controversy. Even worse, because the plaintiffs were seeking a temporary 
restraining order to prohibit the imminent Kapparot ritual in October 2016, it 
is absurd to look out a decade. And why only ten years? Why not twenty, thirty, 
or even a century? If this standard is applied, “any plaintiff filing suit 
would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, 
No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 
2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. 
Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank 
of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. 
Cal. Oct. 27, 2010). There is no diversity jurisdiction.

   Second, if plaintiffs speculate that if victorious, their 
attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is 
specious, and flatly contrary to law. As the Court noted in its order to show 
cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do 
they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), 
which requires the matter to exceed $75,000 “exclusive of interest and costs.” 
If fees could be aggregated in a fantasy-victory, plaintiffs could always 
artificially manufacture diversity jurisdiction.

   Third, plaintiffs write that a “A California court would have 
subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally 
irrelevant. California courts are courts of general jurisdiction. Federal 
courts are courts of limited subject matter jurisdiction empowered to exercise 
the judicial power of the United States only when authorized to do so by 
Congress. (For a preview of future briefs-to-come if this case is not 
dismissed, citations to state-court decisions are not sufficient to demonstrate 
an Article III injury).

   Fourth, plaintiffs write that “this case requires resolution of 
a substantial question of federal law” because the defendants will “contend 
their actions are protected by the Free Exercise clause of the First 
Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. 
Under the Mottley rule, a well-pleaded complaint must raise the federal 
questions on the face of the complaint–it is not enough to speculate about what 
federal questions the defendant may raise in response. Louisville & Nashville 
Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons 
Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which 
defendants inexplicable cite, is to the contrary. Indeed, Grable does not even 
reference the canonical Mottley rule, which has stood for nearly a century 
without challenge.

   Finally, the Court’s order to show cause seems to conflate 
subject matter jurisdiction and injury for purpose of Article III. Regardless 
of whether the plaintiffs have suffered an injury – again, a dubious 
proposition under Article III even if is permissible in state courts – the 
threshold inquiry is whether there is federal diversity or federal question 
subject matter jurisdiction. Under no set of circumstances have plaintiffs 
established that this court has jurisdiction to proceed.



   Eugene






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RE: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Thanks; I recognize the underlying question left open from Smith of whether the 
existence of any exemptions (scientific research) but no religious exemption 
triggers strict scrutiny.

Mike

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, October 10, 2016 1:41 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: "California Court Issues TRO Against Kaporos Practices"

   I think that's right -- but I'm curious about whether there 
would indeed be viable objections to a criminal prosecution, whether for 
violation of the injunction or for violation of the underlying statute.  (I 
assume that prosecution for violation of an injunction is more likely than 
prosecution for violation of the statute, but I agree that the legal arguments 
would be pretty similar.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Sunday, October 9, 2016 8:18 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: "California Court Issues TRO Against Kaporos Practices"

Eugene,

I recall that CA does not follow the collateral bar rule. If that's true, then 
can't the Chabad pursue a two track strategy--try to have the injunction 
vacated tomorrow, and failing that, just ignore it and defend any ensuing 
criminal contempt (or implausible remedial civil contempt proceeding) by 
contesting the validity of the injunction?

Mike Masinter
masin...@nova.edu<mailto:masin...@nova.edu>

Sent from my iPhone

On Oct 9, 2016, at 2:44 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

>From 
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:

As previously reported, in late September an animal rights group filed suit 
against Chabad of Irvine in a California federal district court challenging 
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use 
of live chickens which are then slaughtered. (Complaint in United Poultry 
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint 
contended that defendants are in violation of California's unfair business 
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show 
cause why the case should not be dismissed for lack of standing. (Full text of 
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:

   UPC has standing under the Unfair Competition Law based on its 
diversion of organizational resources spent addressing Defendants' unlawful 
activity and attempting to convince authorities to take action.

The court was apparently convinced. It issued another order (full text 
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting 
plaintiff a temporary restraining order barring defendants from killing 
chickens or other animals in exchange for a fee or donation in violation of 
California Penal Code Sec. 597(a). It set a hearing on whether to order a 
preliminary injunction for October 13, the day after Yom Kippur-- effectively 
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this?  Note that sec. 597(a) generally bans 
killing animals, but excludes killings allowed under sec. 599c:

No part of this title shall be construed as interfering with any of the laws of 
this state known as the "game laws," or any laws for or against the destruction 
of certain birds, nor must this title be construed as interfering with the 
right to destroy any venomous reptile, or any animal known as dangerous to 
life, limb, or property, or to interfere with the right to kill all animals 
used for food, or with properly conducted scientific experiments or 
investigations performed under the authority of the faculty of a regularly 
incorporated medical college or university of this state.

I take it that, if the kaporos chicken were eaten after being slaughtered, the 
action would not be illegal, and the injunction would not cover the sale of the 
chicken.  But according to the plaintiff's papers, it appears that the chickens 
are not being eaten -- partly because plaintiffs had earlier argued that the 
carcasses were "unsanitary" -- but are instead being "rendered into fertilizer."

I'm inclined to think that these exceptions don't stop the law from being a law 
of general applicability for Employment Division v. Smith purposes, because 
they aren't focused on singling out religious practice for special burdens.  
(They do favor some secular practices over religious practices, but I think 
that's OK, as it is for a vast range of other laws that have many 

Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Eugene,

I recall that CA does not follow the collateral bar rule. If that's true, then 
can't the Chabad pursue a two track strategy--try to have the injunction 
vacated tomorrow, and failing that, just ignore it and defend any ensuing 
criminal contempt (or implausible remedial civil contempt proceeding) by 
contesting the validity of the injunction?

Mike Masinter
masin...@nova.edu

Sent from my iPhone

On Oct 9, 2016, at 2:44 PM, Volokh, Eugene 
> wrote:


>From 
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:

As previously reported, in late September an animal rights group filed suit 
against Chabad of Irvine in a California federal district court challenging 
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use 
of live chickens which are then slaughtered. (Complaint in United Poultry 
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint 
contended that defendants are in violation of California's unfair business 
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show 
cause why the case should not be dismissed for lack of standing. (Full text of 
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:

   UPC has standing under the Unfair Competition Law based on its 
diversion of organizational resources spent addressing Defendants' unlawful 
activity and attempting to convince authorities to take action.

The court was apparently convinced. It issued another order (full text 
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting 
plaintiff a temporary restraining order barring defendants from killing 
chickens or other animals in exchange for a fee or donation in violation of 
California Penal Code Sec. 597(a). It set a hearing on whether to order a 
preliminary injunction for October 13, the day after Yom Kippur-- effectively 
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this?  Note that sec. 597(a) generally bans 
killing animals, but excludes killings allowed under sec. 599c:

No part of this title shall be construed as interfering with any of the laws of 
this state known as the "game laws," or any laws for or against the destruction 
of certain birds, nor must this title be construed as interfering with the 
right to destroy any venomous reptile, or any animal known as dangerous to 
life, limb, or property, or to interfere with the right to kill all animals 
used for food, or with properly conducted scientific experiments or 
investigations performed under the authority of the faculty of a regularly 
incorporated medical college or university of this state.

I take it that, if the kaporos chicken were eaten after being slaughtered, the 
action would not be illegal, and the injunction would not cover the sale of the 
chicken.  But according to the plaintiff's papers, it appears that the chickens 
are not being eaten -- partly because plaintiffs had earlier argued that the 
carcasses were "unsanitary" -- but are instead being "rendered into fertilizer."

I'm inclined to think that these exceptions don't stop the law from being a law 
of general applicability for Employment Division v. Smith purposes, because 
they aren't focused on singling out religious practice for special burdens.  
(They do favor some secular practices over religious practices, but I think 
that's OK, as it is for a vast range of other laws that have many secular 
exceptions, such as Title VII, copyright law, the duty to testify, and many 
more.)  But I'd love to hear what others think.

Note also that California courts have not yet decided whether the California 
Constitution's religious freedom provision should be interpreted using the 
Sherbert/Yoder model -- though, given the current liberal retreat from the old 
Justice Brennan/ACLU position, I suspect that California courts will follow 
Justice Scalia rather than Justice Brennan on this.

Eugene
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Re: "California Court Issues TRO Against Kaporos Practices"

[Michael Masinter]

Paul raises a question that surely would trigger an interesting debate among 
rabbinical authorities and Talmudic scholars, but I suspect from Hosanna Tabor 
and from the contraception mandate cases that a court would conclude the law 
burdens a religious practice if those who wish to engage in the practice 
sincerely believe that it is a religious observance or practice.  Save for 
prisoner RLUIPA cases, both opposing parties and courts seem quite unwilling to 
question the characterization by a religious observer that a practice is 
religious in character, and that appears to be equally the case whether the 
claim arises under the religion clauses or RFRA.



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  
on behalf of Paul Finkelman 
Sent: Sunday, October 09, 2016 2:51:57 PM
To: Law & Religion issues for Law Academics
Subject: Re: "California Court Issues TRO Against Kaporos Practices"

I would be interested in knowing if this practice is actually a "religious" 
practice as opposed to a cultural practice brought over from Europe at some 
point.  That is, is there a basis for this practice in Torah, Talmud, or Jewish 
"oral tradition," of if this is merely custom. Perhaps someone on the list who 
knows more on this can comment.

I guess my question is, and I hope Eugene has some thoughts on it is this:  
just because it is done around a holiday and in a synagogue and with a rabbi, 
does that actually make it a religious practice?  Or a cultural one?
I do not know the answer.

Then of course, if this is not actually a religious practice, can the Courts be 
asked to determine that?


**
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 (US number)


From: "Volokh, Eugene" 
To: "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)" 

Sent: Sunday, October 9, 2016 12:43 PM
Subject: "California Court Issues TRO Against Kaporos Practices"

>From 
>http://religionclause.blogspot.com/2016/10/california-court-issues-tro-against.html:
As previously reported, in late September an animal rights group filed suit 
against Chabad of Irvine in a California federal district court challenging 
Chabad's promotion of the pre-Yom Kippur ceremony of kaporos that involves use 
of live chickens which are then slaughtered. (Complaint in United Poultry 
Concerns v. Chabad of Irvine, (CD CA, filed 9/29/2016)). The complaint 
contended that defendants are in violation of California's unfair business 
practices law. On Oct. 6, the court on its own motion ordered plaintiff to show 
cause why the case should not be dismissed for lack of standing. (Full text of 
court order.) On Oct. 7, plaintiff filed a response (full text) arguing in part:
   UPC has standing under the Unfair Competition Law based on its 
diversion of organizational resources spent addressing Defendants' unlawful 
activity and attempting to convince authorities to take action.
The court was apparently convinced. It issued another order (full text 
[https://www.scribd.com/document/326967590/Upc-v-Chabad-Tro]) on Oct 7 granting 
plaintiff a temporary restraining order barring defendants from killing 
chickens or other animals in exchange for a fee or donation in violation of 
California Penal Code Sec. 597(a). It set a hearing on whether to order a 
preliminary injunction for October 13, the day after Yom Kippur-- effectively 
barring the pre-Yom Kippur practice by defendants for this year.
Any thoughts on how to analyze this?  Note that sec. 597(a) generally bans 
killing animals, but excludes killings allowed under sec. 599c:

No part of this title shall be construed as interfering with any of the laws of 
this state known as the "game laws," or any laws for or against the destruction 
of certain birds, nor must this title be construed as interfering with the 
right to destroy any venomous reptile, or any animal known as dangerous to 
life, limb, or property, or to interfere with the right to kill all animals 
used for food, or with properly conducted scientific experiments or 
investigations performed under the authority of the faculty of a regularly 
incorporated medical college or university of this state.

I take it that, if the kaporos chicken were eaten after being slaughtered, the 
action would not be illegal, and the injunction would not cover the sale of the 
chicken.  But according to the plaintiff's papers, it appears that the chickens 
are not being eaten -- partly because plaintiffs had earlier argued that the 

RE: New Version of Proposed First Amendment Defense Act

[Michael Masinter]

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 <religionlaw@lists.ucla.edu>
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 
<masin...@nova.edu<mailto:masin...@nova.edu>> 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<mailto:masin...@nova.edu>



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of James Oleske
Sent: Wednesday, July 13, 2016 6:29 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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 
<jole...@lclark.edu<mailto:jole...@lclark.edu>> 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 "persons" to exclude 
federal employees working within the scope of employment, for-profit federal 
contractors operating within the scope of their contract, and medical providers 
with respect to issues of visitation and provision of care.

The version discussed at the hearing is available here:

https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf

In addition to including the modifications proposed by Senator Lee last 
September, the newest proposal appears designed to address concerns about 
viewpoint discrimination and equal protection by making the following 
modification to the first paragraph of the bill's oper

RE: New Version of Proposed First Amendment Defense Act

[Michael Masinter]

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 "persons" to exclude 
federal employees working within the scope of employment, for-profit federal 
contractors operating within the scope of their contract, and medical providers 
with respect to issues of visitation and provision of care.

The version discussed at the hearing is available here:

https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf

In addition to including the modifications proposed by Senator Lee last 
September, the newest proposal appears designed to address concerns about 
viewpoint discrimination and equal protection by making the following 
modification to the first paragraph of the bill's operative section (new 
provision in all caps):

"Notwithstanding any other provision of law, the Federal Government shall not 
take any discriminatory action against a person, wholly or partially on the 
basis that such person believes, speaks, or acts in accordance with a sincerely 
held religious belief or moral conviction that (1) marriage is or should be 
recognized as the union of (A) two individuals of the opposite sex; or (B) TWO 
INDIVIDUALS OF THE SAME SEX; or (2) extramarital relations are improper."

As previously discussed on the list, "discriminatory action" is defined to 
include, among other things, "caus[ing] any tax, penalty, or payment to be 
assessed against."

Under this latest modification to FADA, those with religious objections to 
facilitating opposite sex marriage (if any such individuals or entities exist) 
would have the same protection as those with religious objections to 
facilitating same-sex marriage.

The bill's findings (Section 2) remain focused on religious objections to 
same-sex marriage.

- Jim

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RE: Assessing a Proposed Solution to the KY Case

[Michael Masinter]

What plausible reading of religious freedom empowers Ms. Davis to prohibit her 
deputies from issuing marriage licenses because of her religious objections to 
same sex marriage?  I am genuinely astonished by the persistent claim that, in 
the name of religious freedom, we should compel license applicants to go to 
another county to obtain marriage licenses lest Ms. Davis attribute their 
issuance by a Rowan county deputy clerk to her person.  It is the state of 
Kentucky, acting through the office of the county clerk, which issues the 
licenses.  Ms. Davis may assert in Kentucky courts or before the Kentucky 
legislature under KRFRA that she ought not to have to sign the license, or 
perhaps even that her name ought not even to appear on the licenses when issued 
by a deputy clerk.  But how can she be thought to have the right to forbid 
those employees from discharging their legal duty to issue those licenses or 
claim that their issuance of those licenses substantially burdens her religious 
exercise?

This thread lays bare the real import of a muscular reading of RFRA’s 
substantial burden test – implicit if not explicit in the defense of Ms. Davis 
is this proposition -- no matter how absurd the claim of a substantial burden 
may be, as long as it is advanced in good faith (i.e., sincerely), it simply 
does not matter that it is contrary to well established fact, the boundary 
between individual and government, or how attenuated its claim of causation may 
be.  All that matters is the governmental employee-objector’s belief that 
whatever it is that the government seeks to do, directly or indirectly 
substantially burdens her religious exercise.  Under that reading of KRFRA, the 
cogent explanations of why Ms. Davis should lose, repeatedly and clearly 
offered by Doug Laycock and Marty simply do not matter, for they rest upon the 
all but universal understanding that Ms. Davis and her office are distinct from 
each other.  But that is not her belief, and because she appears to sincerely 
hold the belief that nobody in her office can issue a license without 
associating her with irreligious conduct, thereby substantially burdening her 
religious exercise, this muscular understanding of KRFRA compels the state to 
accommodate her since it can always do so by imposing on those who seek a 
license the burden to travel to a different county.

Forgive me for thinking the argument is nonsensical, but I do.  It is at odds 
with ex Parte Young, which long ago drew the very distinction Ms. Davis seeks 
through KRFRA to obliterate.  But it is also at war with self-government 
because it puts the private self of a government official acting in her 
government capacity above the sovereignty of government, whether understood as 
state qua state or state as the people.  The people and state of Kentucky have 
decided that marriage licenses should be available through the office of a 
clerk in every county in the state; Ms. Davis would undo that decision based on 
her private faith, insisting that she must as a matter of private faith forbid 
her employees from carrying out their legal duties.  Did Congress or the state 
legislatures that enacted RFRAs intend by to equip every government 
officeholder and employee with a universal solvent for self-government subject 
only to a requirement of good faith and an all but unavailable defense of 
strict scrutiny?  Surely that is a bridge too far even under the most generous 
reading of RFRAs.  To be sure we do accommodate most government employees 
(though not Ms. Davis as an elected official) under Title VII, but under

Mike


Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Wednesday, September 16, 2015 8:40 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Assessing a Proposed Solution to the KY Case

To Kevin's point, a somewhat similar accommodation is playing out in North 
Carolina.  As readers of this list will recall, North Carolina passed 
legislation which allows magistrates to opt out of performing any marriages, 
provided that each county was required to continue to make secular marriage 
services routinely available in each county.  Recently, all of the magistrates 
in one county (McDowell County) opted out of performing marriages.  However, 
marriages are still performed in McDowell County because magistrates in 
neighboring Rutherford County drive over on a regular weekly basis to make the 
marriage service available.

http://www.wbtv.com/story/30001008/mcdowell-co-magistrates-recuse-themselves-from-performing-same-sex-marriages



Not that this addresses the current procedural situation with Davis, but it 
certainly provides a model which the Kentucky legislature 

RE: Assessing a Proposed Solution to the KY Case

[Michael Masinter]

Kevin,



Under your proposed accommodation (leave aside the court order for now), who 
would issue marriage licenses in Rowan County?  In your earlier post below, you 
write  "the licenses are to be authorized by a human being holding a particular 
office (namely, by one of the 120 people holding the office of county clerk)" 
which would seem to imply that the answer, at least in Rowan County, would be 
, requiring those seeking a license to travel to one of Kentucky's 119 
other counties.  If that's the case, I think the establishment clause remains 
in play for the reasons Alan identified.



Returning to the court order, today the Court of Appeals denied Davis's request 
for an injunction pending appeal against the state defendants, writing "Davis 
has not demonstrated a substantial likelihood of success on her federal 
constitutional claims.  We need not address the merits of her claims under 
Kentucky law because the Eleventh Amendment of the U.S. Constitution precludes 
federal courts from compelling state officials to comply with state law."  
Pennhurst



Mike





Michael R. Masinter

Professor of Law

Nova Southeastern University

3305 College Avenue

Fort Lauderdale, FL 33314

954.262.6151

masint...@nsu.law.nova.edu







-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 15, 2015 9:03 PM
To: Law & Religion issues for Law Academics 
Subject: RE: Assessing a Proposed Solution to the KY Case



Alan,



That's a helpful clarification. You're right about this third meaning of 
"office." (And there may be more!)



I find it helpful to think in terms of partial recusal: Davis is declining to 
exercise marriage licensing authority, rather than exercising it to comport 
with her religious beliefs. She's still exercising county clerk authority when 
she does other things while remaining recused from marriages. So there's a 
sense in which we could say that she is insisting that the way she exercises 
her official authority must comport with her religious beliefs. But that 
doesn't seem like the right frame of reference. If it were, there would be seem 
to be an Establishment Clause problem with the judge who recuses on religious 
grounds from the rare death penalty cases that come her way while still 
insisting on exercising the authority of her office in other cases. But there's 
not; or, at least, I don't think there is. Is there?



For whatever it might be worth, the marriage licensing function of the county 
clerk in Rowan County is a tiny piece of her office's workload. In 2014, the 
office issued 212 licenses; Davis's PI testimony was that each license took 
about five to seven minutes of employee time to issue. Davis also estimated 
marriage licensing to take about one employee hour per week (in an office with 
her and six deputies) even in the comparatively busy months of May and June. 
Revenue from the licenses was .1% of the office's revenue from fees and other 
collections. Not sure if these numbers are directly responsive to your 
Establishment Clause concerns, but they provide useful perspective for a 
partial recusal frame of reference.



Kevin





From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Alan E Brownstein 
[aebrownst...@ucdavis.edu]

Sent: Tuesday, September 15, 2015 7:04 PM

To: Law & Religion issues for Law Academics

Subject: RE: Assessing a Proposed Solution to the KY Case



I think I see one source of our disagreement more clearly now, Kevin. You 
suggest that the term "this office"  has two meanings, the individual holding 
the office and the physical location of the office. I think, however, there is 
a third meaning. The term "office" refers to the government power that is 
vested in the individual who holds the office. For example, the executive power 
of the United States is vested in the President. So if a person said, "All 
executive powers required to be exercised by the office of the President will 
only be exercised if they comply with and are not inconsistent with the 
religious beliefs of the individual holding the office of the President" we can 
understand that the office of the President involves more than the identity of 
the individual holding that office. It refers to government power and authority 
- the executive powers vested in the President.



County clerks are not presidents, of course. And I understand your argument 
that they may be fungible with regard to some of their authority. But I take it 
that Ms. Davies (and you) are arguing that there is no Establishment Clause 
problem if the governmental power and authority vested in a county clerk is 
restricted to only those exercises of authority that are consistent with the 
clerk's religious beliefs. It is this governmental 

Good Faith (was What's happening in the Kim Davis case)

[Michael Masinter]

Aren’t good faith inquiries the inevitable consequence if, in adjudicating 
claimed state or federal RFRA exemptions from compliance with generally 
applicable law, courts must:


1.  Accept without review the claimant’s determination that compliance 
substantially burdens religious exercise; and

2.  Hold that the government cannot satisfy strict scrutiny unless no 
possible administrative or legislative workaround is available?

As arguments in this thread and in the many contraception mandate threads have 
shown, skilled counsel can always suggest a possible, albeit sometimes highly 
implausible administrative or legislative workaround.  If a brief identifying 
what an unusually cooperative legislature or an administrator unconcerned with 
the practicality of implementation theoretically might do to alleviate a 
claimed burden is all it takes for a RFRA claimant to prevail, then the only 
meaningful defense available becomes bad faith or lack of sincerity.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, September 13, 2015 2:47 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: What's happening in the Kim Davis case


I agree with Roberta that generally it is not "necessarily a wise route to 
investigate her good or bad faith in these types of matters."  However, I think 
is is also important to have some legal realism here.

Davis's arguments seem to be in flux and in motion because I think it is quite 
clear that she does not want any accommodation.  As others have pointed out, 
her County does not have a religion but she thinks it does and the county 
itself can get an exemption from the U.S. Constitution.  Would anyone accept 
this as a plausible theory of law?  Or as an example of someone acting in good 
faith.

That she made such arguments suggests that her goal is not merely to personally 
remove herself from the process (which she could do), but to prevent people 
from obtaining their constitutional rights in her county.  This is not acting 
in good faith and I think it is reasonable, as academics, for us to consider 
motive and goals.  We judge political figures all the time on the basis of 
their motives and good or bad faith.  She is a political actor, an elected 
official, and her actions speak to that.

George Wallace lost his first bid to be governor because he was seen as too 
moderate on race.  He allegedly said he would never be "out Niggered" again, 
and its pretty clear he achieved that goal during most of the rest of his 
Alabama career (although late in life is moderated a little).  No scholars I 
know of think he acted in good faith while attempted to prevent integration in 
the face of court orders.

Do we somehow elevate Ms. Davis's standing into courthouse door (or court 
clerk's door) as more appropriate than George Wallace or Ross Barnett, because 
she cloaks her refusal to give people their constitutional rights by claiming a 
religious right to utterly prevent marriages from taking place.

As far as I can tell, everyone on this list agrees that 1) the licenses can be 
issued by someone else; 2) she does not have to issue them; 3) that she only 
has to step aside to let the people of her county obtain their constitutional 
rights.

That she has done none of these things suggests bad faith.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com


From: "Kwall, Roberta" >
To: Law & Religion issues for Law Academics 
>
Sent: Sunday, September 13, 2015 8:20 AM
Subject: RE: What's happening in the Kim Davis case

The first paragraph of Paul's post about whether we should entertain the 
possibility of bad faith on the part of Kim Davis (given her past)  
particularly caught my eye. It made me think of  Jews who can be described as  
"Baal Tshuvot" (this term refers to those that were born Jewish but who 
"return" to the faith at some point in their lives). There is a phenomenon that 
often occurs with these Jews (and sometimes with those who convert especially 
under more traditional authorities) in which they become super-strict with all 
the rules and follow everything to what they understand to be the letter of the 
law.  Part of the 

RE: More Davis strangeness

[Michael Masinter]

Perhaps KRFRA makes Davis's state law duty defeasible, but isn't that a 
question of Kentucky law appropriately resolved by Kentucky courts rather than 
by a federal judge making an Erie guess?  Perhaps Kentucky would give to its 
act only the crabbed construction Florida's supreme court gave to FRFRA in 
Warner v. Town of Boca Raton, or perhaps it would give it the extraordinarily 
broad construction SCOTUS gave to RFRA in Hobby Lobby, but a federal judge 
should not make that call.

Ms. Davis has and continues to have an opportunity to bring her KRFRA claim in 
a Kentucky court; she could have done so before the plaintiffs sued and can 
still do so.  The plaintiffs are entitled to licenses, but in her still 
evolving view, Kentucky must adjust its laws to remove responsibility for their 
issuance from her office.  Whether she is right or wrong in no way affects the 
right of the plaintiffs to a license, and should not bog down their right to 
relief to which under Obergefell they are entitled.

The hypothetical below doesn't capture the question for three reasons.  First, 
it shifts the question from whether plaintiffs are entitled to a license from 
the official charged with its issuance to whether the state's decision to shift 
to another official the obligation to issue that license violates the 
establishment clause.  Second, it creates a dispute between two county 
officials rather than between a county official and its governor, taking 
Pennhurst's limitation on the judicial power of the United States out of the 
discussion. Third, if the statute provides the plaintiffs the relief to which 
they are entitled - a marriage license - without relegating them to some second 
class status, then it is not obvious that they even have standing to contest 
its constitutionality.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu<mailto:masint...@nsu.law.nova.edu>



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 08, 2015 5:47 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; 
Michael Dorf <miked...@gmail.com>
Cc: Dellinger, Walter <wdellin...@omm.com>; Howard Wasserman 
<wasse...@fiu.edu>; Samuel Bagenstos <sba...@gmail.com>
Subject: Re: More Davis strangeness

If the Kentucky RFRA does not make Davis's state-law duty defeasible, or if 
federal constitutional law forecloses this kind of defeasability, then there's 
no need to get into Rule 19. So maybe we're talking past each other.

Here's an analogy to illustrate my thinking (but bear in mind it's just an 
analogy!).

Suppose state law on who may issue marriage licenses is something like this: 
"All marriage licenses in a county must be issued by the county clerk (and only 
the county clerk). But if the county clerk once objects on religious grounds to 
providing a marriage license to any one couple, the county executive shall 
thereafter be the exclusive issuer of marriage licenses in the county."

And suppose the facts are these: A couple seeks a marriage license from the 
county clerk. The clerk refuses on religious grounds and says "go get it from 
the county executive." So they try. But the county executive refuses on the 
ground that the state marriage licensing law is unconstitutional after the 
first sentence. On reflection, the couple agrees with this position.

And then we have a federal lawsuit in which the couple are plaintiffs and the 
county clerk is the sole defendant. The clerk tries to get the county executive 
added as a defendant under Rule 19. The county clerk says that she is the wrong 
person under state law to issue the marriage license. Plaintiffs disagree and 
say the county clerk is wrong about her view of state law because the 
constitution disallows substitutions and thereby entitles them to a license 
from the county clerk.

There are some differences with Miller v. Davis, of course. But this is roughly 
the kind of situation that it seems to me the court was facing at the outset. 
Kentucky's RFRA meant that marriage licenses should be issued by someone else 
or in some other form. But because the governor's "issue or resign" position 
was wrong about what state law required, the state failed to come up with 
another way of delivering licenses to couples seeking state marriage licenses 
in Rowan County. And then the court went ahead and decided in the context of a 
PI motion that RFRA didn't let Davis off the hook anyway.

From: Michael Masinter 
<masint...@nsu.law.nova.edu<mailto:masint...@nsu.law.nova.edu>>
Reply-To: Law & Religion List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Tuesday, September 8, 2015 at 4:16 PM
To: Law & Religion List 
<religionlaw@lists.ucla.

RE: More Davis strangeness

[Michael Masinter]

I don't see a basis for objecting under Rule 19 to the plaintiffs' choice of 
defendants in an official capacity claim for injunctive relief. The plaintiffs 
sought the issuance of marriage licenses from the county official designated by 
state law as the official with a ministerial duty to issue them and sued her 
for refusing to issue them.  As others have already noted, the supremacy clause 
supersedes any objection she might have had that complying with the 
constitution would cause her to violate state law, particularly given the order 
from the governor. In short, plaintiffs sued the defendant who could afford 
them all the relief they sought, so I cannot see why Rule 19(a) would authorize 
the court to order the joinder of others.  Even if the plaintiffs might have 
had a claim against state officials (it is not obvious that they would have), 
Rule 19(a) does not empower a court to order the joinder of defendants simply 
because a plaintiff might have a viable claim against them.  Although Temple v. 
Synthes Corp. arose in tort litigation for damages, its holding on the limited 
scope of power under Rule 19(a) would seem to dispose of a Rule 19 motion here 
too.



As to the third party complaint, Sam Bagenstos and Mike Dorf have already noted 
the limitation of the judicial power of the United States that arises from 
Pennhurst, a limitation that is not dependent on the particular source of 
statutory subject matter jurisdiction.  There are also Rule 14 questions that 
lurk in the third party complaint arising from the frequently stated 
requirement that third party claims must be in the nature of derivative claims 
for indemnification should plaintiff prevail, not independent claims for relief 
against the putative third party defendant even if they arose from the same 
transaction.  The claims of the clerk  against the governor derive from her 
objection to the governor's order; they were ripe even before the plaintiffs 
sued.  For that reason, they arguably  are not proper third party claims.  Of 
course even if they were, they would run into Pennhurst, but they are at least 
questionable attempts by a defendant to use Rule 14 to interfere with the 
plaintiffs' presumptive control over parties to litigation, the principle 
underlying Temple v. Synthes Corp. in the Rule 19 context.



Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu








-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Monday, September 07, 2015 10:58 PM
To: Law & Religion issues for Law Academics ; 
Michael Dorf 
Cc: Dellinger, Walter ; Howard Wasserman 
; Samuel Bagenstos 
Subject: RE: More Davis strangeness



The procedural discussion has been very helpful.



One problem is that not all the right parties are in front of the court. I've 
been wondering why Rule 19 has not been more prominently discussed. It turns 
out that it has been invoked in various pleadings, and I'm wondering if it 
provides the best way out (and the best way to deal with similar problems 
should they arise in the future).



Entry no. 32 on the district court docket is a motion to dismiss filed by 
Davis. One of the grounds is 12(b)(7): failure to join a party required by Rule 
19. Briefing on this motion has been suspended pending disposition of the stay 
request and related matters.



Rather than dismissal, the right response would seem to be a court order 
pursuant to FRCP 19(a)(2) requiring joinder of whichever state officials can 
get plaintiffs their marriage licenses. No Pennhurst problem and no 
supplemental jurisdiction problem with such an order. But this kind of order 
seems to be overlooked when the attention is on the PI, the stay request, the 
contempt proceedings, and the third-party complaint.





From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]

Sent: Monday, September 07, 2015 9:35 PM

To: Michael Dorf

Cc: Law & Religion issues for Law Academics; Samuel Bagenstos; Dellinger,   
Walter; conlawp...@lists.ucla.edu; Howard 
Wasserman

Subject: Re: More Davis strangeness



I've fixed the link to Davis's emergency motion to the CTA6 -- it's here:



https://www.liberty.edu/media/9980/attachments/2015/090715_Emergency_Motion_for_Immediate_Consideration_and_Motion_for_Injunction_Pending_Appeal.pdf



I've also added this UPDATE--please let me know if it's not correct:



It's not clear that the Kentucky RFRA claim against a third-party would support 

RE:

[Michael Masinter]

Plaintiffs who do seek damages for establishment clause violations often do so 
to forestall potential mootness issues even absent any likelihood of 
substantial damages.  Injunctive relief claims can become moot either because 
the plaintiff cannot show the injury is capable of repetition to her, or, 
particularly in circuits that employ a presumption in favor of government 
defendants to overcome U.S. v. W.T. Grant Co., because the school officials 
voluntarily cease the allegedly unconstitutional conduct.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314vi
954.262.6151
masint...@nsu.law.nova.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Friday, June 12, 2015 10:38 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE:

I think there is no legal or doctrinal basis for her statement. But the 
practical reality is that the damages are emotional or dignitary, and juries 
are generally unsympathetic, so plaintiffs usually don't seek damages and don't 
recover much when they do.

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.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Friday, June 12, 2015 9:44 AM
To: Law  Religion issues for Law Academics
Subject:

In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by 
the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that 
We do not grant monetary damages for violations of the Establishment Clause. 
No authority is cited for that proposition ,other than  a remark that EC relief 
is equitable in nature.  I know that other courts have awarded such damages, 
although with the exception of one 10th Circuit case, I  don't know of any 
published opinions. Is Judge Batchelder right about this claim? I understand it 
will often be difficult to prove or quantify such damages, but I don't see a 
blanket rule against them.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.orgmailto:ste...@ajc.org
www.ajc.orghttp://www.ajc.org/
Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal
Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

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Anyone can subscribe to the list and read messages that are posted; people can 
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Bronx Household of Faith Decision

[Michael Masinter]

The city regulation forbidding the long term use of public school facilities 
for the conduct of religious worship services does not violate the free 
exercise clause, and, reaffirming an earlier panel decision, does not violate 
the free speech clause. http://tinyurl.com/lcosuva  The 2-1 vote repeats the 
2-1 division from the earlier panel decision, with the majority relying heavily 
on Locke v. Davey and the dissent reprising free speech arguments from the 
earlier panel decision.


Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masint...@nsu.law.nova.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, March 26, 2014 9:53 AM
To: Law Religion  Law List
Cc: lawcour...@unt.edu
Subject: RE: The importance of the assignment power

What if, in 1990, Chief Justice Rehnquist had assigned the opinion in Smith to 
O'Connor instead of Scalia?   The result in the instant case, of course, would 
have been the same, but instead of junking the Free Exercise Clause, as Scalia 
basically did, the argument would have been that Oregon had met its compelling 
interest burden. So the doctrine of Sherbert etc. (whatever one thinks it 
actually was) stays in place-many of us would have castigated O'Connor for 
believing that Oregon had in fact demonstrated a compelling interest, but that 
would have gone to the application, not necessarily to the doctrine itself-and, 
I assume there would have been no RFRA.  I wonder if we wouldn't have been 
better off, as a society, with that outcome, since RFRA is entirely a response 
to Scalia's specific opinion (which, I concede, did garner five votes).

So one question is why did Rehnquist give the opinion to Scalia?  Is it 
simply that he was due for an assignment?  One can ask the same question, 
of course, about Roberts and Heller.  I have no problem with the outcome in 
Heller, but I think that Scalia's opinion is scandalously awful in the way he 
handles historical materials and leaves open many questions (beginning, of 
course, with the standard of review and why it is constitutional to deprive 
Martha Stewart of the fundamental right to defend herself merely because she 
lied to an FBI agent).


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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[Michael Masinter]

Doesn't Runyon v. McRary's resolution of the freedom of association  
claim, understood to be derived from the first amendment's protection  
of the freedom of speech, suggest the answer?  The photographer has a  
first amendment right of expression that would protect the display of  
the sign, but no affirmative constitutional right to engage in  
statutorily forbidden discrimination.  Complaint dismissed.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marc Stern ste...@ajc.org:

Assume neither bill becomes law. A wedding photographer hangs a sign  
 in his shop saying SSM is immoral but state civil rights require us  
 to photograph SSM ceremonies. A complaint of discrimination is   
filed. What result?

Marc Stern

From: Richard Dougherty [mailto:dou...@udallas.edu]
Sent: Wednesday, February 26, 2014 06:51 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting   
for-profit businesses


The ship that has clearly sailed on this list is respect.  That   
scholars and professional educators cannot refrain from calling   
their colleagues bigots for holding a position that the President   
of the United States himself held publicly (until being politically   
forced into evolving) less than two years ago is frankly   
insulting.  The more one shouts bigot, though, the more one thinks  
 there is no argument there.


And of course innocent people are being harmed; ask the children who  
 have gone unadopted because their prospective parents have been  
told  they aren't worthy as parents because they are bigots.


Richard Dougherty
University of Dallas


On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock   
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
?They need to adjust [which here clearly means give up their   
religious commitments] or move on.?  As I said.


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

From:   
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of   
hamilto...@aol.commailto:hamilto...@aol.com

Sent: Wednesday, February 26, 2014 3:43 PM

To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting   
for-profit businesses


I don't have any desire for them to go out of business, but if   
they are going to be in business, they need to operate in the   
marketplace without
discrimination.   If the business they have chosen does not fit   
their belief, they need to adjust, or move on.   No one is barring   
religious minorities from professions.
What is being suggested is that believers cannot shape the business   
world and customers to fit their prejudices.  The insidious notion   
that believers have a right
not to adjust to the law is the most damaging element of the RFRA   
movement, not just to those harmed by it, but by the believers who   
are permitted to avoid dealing
with the changes that increase human rights, and demand their   
consideration and accommodation.   Believers have enthusiastically   
supported the subjugation of blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are   
doing is a violation of human rights is a disservice to all.   It is  
 an understanding of religion removed from history, which

is false.

The ship has sailed on distinguishing homophobic discrimination and   
race discrimination.


Even if the compelling interest test can be overcome (assuming we   
are dealing with balancing and not an absolute right), the least   
restrictive means test remains, and that
is the element that drives cases in favor of the religious actor and  
 against those they burden and harm.








___
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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 
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messages to others.

Re: Warner v. City of Boca Raton

[Michael Masinter]

Like Doug, I think the Florida supreme court misconstrued FRFRA (more  
full disclosure -- I chaired the ACLUFL legal panel that authorized  
Jim Green and Doug to represent Warner on behalf of the ACLUFL).  But  
it remains the case that the court devoted several critical paragraphs  
of its opinion to the meaning of the word substantial, and relied on  
its definition of substantial to decide the case.


I offered Warner in response to a specific question -- whether any  
court had regarded the presence or absence of the word substantial in  
a state RFRA as significant -- not whether the court that did so  
construed it properly.  So it seems to me reasonable to suggest that  
the inclusion of the word substantial within the statutory text does  
do some work, even if, as happens here, we agree that Warner does not  
accurately capture the work that it does.


Perhaps substantial was meant only to invoke a sincerity inquiry into  
the objector's claim that the burden was substantial, but that still  
seems to effectively edit the word our of the statute. Construing the  
statute to leave the determination of what is substantial entirely to  
the subjective assessment of the objector, subject only to a sincerity  
determination, means that in every case in which the objector invokes  
a RFRA, the court must either find the objection insincere or apply  
strict scrutiny.  It would be easy enough to write such a statute, but  
why in writing it would one include the word substantial?


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Douglas Laycock dlayc...@virginia.edu:


Michael cites Warner v. Boca Raton, 887 So.2d 1023 (Fla. 2004), as an
example of a case where the word “substantially” was critical to the result.
And that is what the court says. But it is quite obviously not true.



The Florida court read “substantially” to mean that only those practices
that were required by a faith were protected by Florida RFRA. The Florida
legislature had attempted to specifically negate any such requirement, as
the court recognized. The statute defined “exercise of religion” as “an act
or refusal to act that is substantially motivated by religious belief,
whether or not the religious exercise is compulsory or central to a larger
system of religious belief.” The Florida court’s interpretation of
“substantially burden” negated this definition and read back into the
statute a requirement that religious exercise be compulsory to be protected.
The statutory definition of religious exercise will never again matter to a
Florida RFRA case; only a subset of religious exercise as defined will ever
be protected. This opinion is plainly driven not by the word
“substantially,” but by the court’s disagreement with the scope of the
statute. Full disclosure: I argued the case for the plaintiffs.



Here is what the court said about the statutory definition, just before it
turned to the meaning of “substantially burden”:



“The FRFRA includes several important definitions:



* * *



(3) “Exercise of religion” means an act or refusal to act that is
substantially motivated by a religious belief, whether or not the religious
exercise is compulsory or central to a larger system of religious belief.



§ 761.02, Fla. Stat. (2003).



* * * The protection afforded to the free exercise of religiously motivated
activity under the FRFRA is broader than that afforded by the decisions of
the United States Supreme Court for two interrelated reasons. First, the
FRFRA expands the free exercise right as construed by the Supreme Court in
Smith because it reinstates the Court's pre-Smith holdings by applying the
compelling interest test to neutral laws of general application. Second,
under the FRFRA the definition of protected “exercise of religion” subject
to the compelling state interest test includes any act or refusal to act
whether or not compelled by or central to a system of religious belief. The
legislative history of the FRFRA suggests that in order to state a claim
that the government has infringed upon the free exercise of religion, a
plaintiff must only establish that the government has placed a substantial
burden on a practice motivated by a sincere religious belief.”



887 So.2d at 1031-32 (emphasis in original).



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546



-Original Message-
From: religionlaw-boun...@lists.ucla.edu
mailto:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Monday, December 02, 2013 8:44 PM
To: Law  Religion issues for Law Academics; Christopher Lund
Cc: Law  Religion issues for Law Academics
Subject: Re

Re: RLUIPA and hair length in prison

[Michael Masinter]

Why does RLUIPA as applied to state prisons unconstitutionally  
interfere with state sovereignty?  RLUIPA is a spending clause  
statute; any state that objects to RLUIPA as an intrusion into its  
sovereignty is free to operate its prisons without federal financial  
assistance.  To be sure Cutter did not resolve the question of whether  
Congress exceeded its powers under the spending clause as constrained  
by the tenth amendment, but every circuit to have considered that  
question, including the sixth circuit on remand in Cutter, held that  
RLUIPA was a constitutional exercise of spending clause power  
notwithstanding the tenth amendment.  Nat'l Federation of Independent  
Business v. Sebelius does not undermine those decisions; Ohio did not  
even assert in Cutter that federal financial assistance was coercive,  
and it blinks reality to suggest otherwise.


Were a state to reject federal funds, the separate and more difficult  
question of commerce clause power as limited by the tenth amendment  
would arise, but until and unless one does, it's hard to take  
seriously the claim that RLUIPA is an unconstitutional intrusion into  
state sovereignty.


As Dave notes and the eleventh circuit confirms, the eleventh circuit  
is an outlier in construing RLUIPA as applied to prisons; if Knight's  
narrow tailoring  were put to song, its title, with apologies to Cole  
Porter, would be Anything Goes.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting hamilto...@aol.com:

I am on deadline here, so can't really pursue this, but I have to   
say that I do find it troubling that the fact question of   
penological interest is now being decided based on what another   
state does.   It appears to me that RLUIPA has nationalized state   
prison system administration.  Those representing the prisoners I'm   
sure find no problem with this as a result, but for me, the   
constitutional structural issues call out for more nuanced   
treatment.  The Cutter court essentially says that the federal   
courts are to take penological interest seriously, as it is advanced  
 by the administrators.  Every prison system has its own issues and   
difficulties, ranging from age and quality of prisons, to types of   
prisoners, to types of gangs and terrorists behind bars, to state   
budgets.  To say that if one (or several) prison systems has a   
permissive hair length policy means that every other system now   
bears a heavier burden on showing its penological interests strikes   
me as a large incursion into state authority over prisons.  It makes  
 me question Congress's power to enact RLUIPA on the prison side  
more  than I have before.  The operation of state prisons is part of  
the  sovereign capacity of the state, and RLUIPA does not require  
those  prisons to follow constitutional guarantees, which are either  
much  more lax (Smith) or significantly more lax (Turner v. Safley)  
than  RLUIPA's strict scrutiny, but rather imposes a much heavier  
burden.



Apologies for my inability to jump back in very quickly, but will   
try to as my schedule permits this week.



Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com





-Original Message-
From: Dawinder S. Sidhu dsi...@gmail.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Mon, Aug 5, 2013 2:02 pm
Subject: Re: RLUIPA and hair length in prison



Please forgive me for being late to the party here -- I drafted an   
amicus brief on behalf of the National Congress of American Indians   
in this case.  Our argument was quite simple: that Alabama could   
restrict the right of the prisoners to grow their hair in accordance  
 with their religious principles provided that they had   
individualized evidence that the prisoners in question gave rise to   
the penological concerns (e.g., need to ensure proper hygiene, need   
for easy identification in case of escape) justifying the   
restrictions.


We pointed out how most prison systems, including the Federal Bureau  
 of Prisons, do not have such restrictions, or make exceptions for   
medical and/or religious reasons, which we thought put the onus on   
Alabama to explain why the restrictions were necessary despite   
having penological interests identical to those of other   
jurisdictions.  That is precisely what the Ninth Circuit did in   
Warsoldier, asking why prison systems with permissive grooming   
policies are able to meet their indistinguishable interests without  
 infringing on their inmates' right to freely exercise their   
religious beliefs.   The Justice Department has made this point as   
well.  The 

Re: RLUIPA and hair length in prison

[Michael Masinter]

	Cutter properly recognizes the state's compelling interest in  
maintaining prison safety, and also recognizes that prison  
administrators have experience and expertise in implementing that  
compelling interest.  But I do not read due deference to that  
experience and expertise as synonymous with the abdication of judicial  
review.  Cutter notes that federal courts have not found carrying out  
their congressionally mandated role in protecting the religious  
observances of federal prisoners under RFRA to be overly difficult.   
Particularly when, as here, other states have safely accommodated  
sincere religiously motivated requests for exemptions from hair length  
rules, and when Alabama's contrary decision rests not on actual  
experience but in part on the semi barbaric conditions to which it  
subjects inmates, its refusal even to consider the feasibility of  
granting such requests ought to trigger skepticism, not reflexive  
deference.


	Congress has twice enacted legislation subjecting state restrictions  
on prisoner religious observances to strict scrutiny.  One need not  
endorse the wisdom of those legislative judgments by expecting the  
courts to honor them.  I don't read Cutter's call for reasonable  
deference as signifying that strict scrutiny entails only rational  
basis review, and, as the eleventh circuit notes, neither apparently  
do other circuits.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marci Hamilton hamilto...@aol.com:

Michael--  how do you read Cutter's several statements that require   
deference to prison officials on safety?


Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jul 27, 2013, at 12:36 PM, Michael Masinter masin...@nova.edu wrote:

The eleventh circuit's restatement of RLUIPA's compelling   
interest/narrowly tailored standard based on a snippet of   
legislative history and some language from Cutter v. Wilkinson   
respecting due deference would make George Orwell proud:


Although the RLUIPA protects, to a substantial degree, the   
religious observances of institutionalized persons, it does not   
give courts carte blanche to second-guess the reasoned judgments of  
 prison officials. Indeed, while Congress enacted the RLUIPA to   
address the many ?frivolous or arbitrary? barriers impeding   
institutionalized persons' religious exercise, it nevertheless   
anticipated that courts entertaining RLUIPA challenges ?would   
accord ?due deference to the experience and expertise of prison and  
 jail administrators.? ? Cutter v. Wilkinson, 544 U.S. 709, 716?17   
(2005) ( quoting 146 Cong. Rec. 16698, 16699 (2000) (joint   
statement of Sens. Hatch and Kennedy on the RLUIPA)). The Supreme   
Court has cautioned that ?[w]e do not read RLUIPA to elevate   
accommodation of religious observances over an institution's need   
to maintain order and safety,? and ?an accommodation must be   
measured so that it does not override other significant interests.?  
 Id. at 722. The Court further instructed:


We have no cause to believe that RLUIPA would not be applied in an   
appropriately balanced way, with particular sensitivity to security  
 concerns. While the Act adopts a ?compelling governmental  
interest?  standard, context matters in the application of that  
standard.  Lawmakers supporting RLUIPA were mindful of the urgency  
of  discipline, order, safety, and security in penal institutions.  
They  anticipated that courts would apply the Act's standard with  
due  deference to the experience and expertise of prison and jail   
administrators in establishing necessary regulations and procedures  
 to maintain good order, security and discipline, consistent with   
consideration of costs and limited resources.


Id. at 722?23 (internal quotation marks and citations omitted).   
This deference is not, however, unlimited, and ?policies grounded   
on mere speculation, exaggerated fears, or post-hoc   
rationalizations will not suffice to meet the act's requirements.?   
Rich v. Secretary, Florida Dep't of Corrections, 716 F.3d 525, 533   
(11th Cir.2013) (internal quotation marks omitted).


It would be hard to write a better statement of only slightly   
beefed up rational basis review whenever discipline is in play.  As  
 long as the judgment of an administrator cannot be proven to be   
frivolous or arbitrary or based on mere speculation, exaggerated  
 fears, or post-hoc rationalizations it will survive statutorily   
mandated strict scrutiny review.  Perhaps the unstated premise that  
 incarcerated felons are subhuman will cabin the dilution of strict  
 scrutiny, but perhaps not; in the national security state, it's   
only a short leap from prison

Re: RLUIPA and hair length in prison

[Michael Masinter]

The eleventh circuit's restatement of RLUIPA's compelling  
interest/narrowly tailored standard based on a snippet of legislative  
history and some language from Cutter v. Wilkinson respecting due  
deference would make George Orwell proud:


Although the RLUIPA protects, to a substantial degree, the religious  
observances of institutionalized persons, it does not give courts  
carte blanche to second-guess the reasoned judgments of prison  
officials. Indeed, while Congress enacted the RLUIPA to address the  
many “frivolous or arbitrary” barriers impeding institutionalized  
persons' religious exercise, it nevertheless anticipated that courts  
entertaining RLUIPA challenges “would accord ‘due deference to the  
experience and expertise of prison and jail administrators.’ ” Cutter  
v. Wilkinson, 544 U.S. 709, 716–17 (2005) ( quoting 146 Cong. Rec.  
16698, 16699 (2000) (joint statement of Sens. Hatch and Kennedy on the  
RLUIPA)). The Supreme Court has cautioned that “[w]e do not read  
RLUIPA to elevate accommodation of religious observances over an  
institution's need to maintain order and safety,” and “an  
accommodation must be measured so that it does not override other  
significant interests.” Id. at 722. The Court further instructed:


We have no cause to believe that RLUIPA would not be applied in an  
appropriately balanced way, with particular sensitivity to security  
concerns. While the Act adopts a “compelling governmental interest”  
standard, context matters in the application of that standard.  
Lawmakers supporting RLUIPA were mindful of the urgency of discipline,  
order, safety, and security in penal institutions. They anticipated  
that courts would apply the Act's standard with due deference to the  
experience and expertise of prison and jail administrators in  
establishing necessary regulations and procedures to maintain good  
order, security and discipline, consistent with consideration of costs  
and limited resources.


Id. at 722–23 (internal quotation marks and citations omitted). This  
deference is not, however, unlimited, and “policies grounded on mere  
speculation, exaggerated fears, or post-hoc rationalizations will not  
suffice to meet the act's requirements.” Rich v. Secretary, Florida  
Dep't of Corrections, 716 F.3d 525, 533 (11th Cir.2013) (internal  
quotation marks omitted).


It would be hard to write a better statement of only slightly beefed  
up rational basis review whenever discipline is in play.  As long as  
the judgment of an administrator cannot be proven to be frivolous or  
arbitrary or based on mere speculation, exaggerated fears, or  
post-hoc rationalizations it will survive statutorily mandated strict  
scrutiny review.  Perhaps the unstated premise that incarcerated  
felons are subhuman will cabin the dilution of strict scrutiny, but  
perhaps not; in the national security state, it's only a short leap  
from prison safety to public safety.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Joel Sogol jlsa...@wwisp.com:




http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl
etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593
7966 Knight, et al. v. Thompson, et al.


Docket: 12-11926

Opinion Date: July 26, 2013


Judge: Schlesinger


Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government 
Administrative Law

Plaintiffs, male inmates, filed suit under the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq.,
challenging an ADOC policy that forbids them from wearing their hair unshorn
in accordance with the dictates of their Native American religion. The
United States intervened on plaintiffs' behalf. The court affirmed the
district court's judgment in favor of the ADOC because the ADOC carried its
burden of demonstrating that its hair-length policy was the least restrict
means of furthering its compelling governmental interests of prevention of
contraband, facilitation of inmate identification, maintenance of good
hygiene and health, and facilitation of prison discipline through
uniformity.


http://j.st/HMg
http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl
etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593
7966


http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl
etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593
7966 View Case


View Case On: Justia
http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl
etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593
7966   Google Scholar
http://scholar.google.com/scholar?hl=enq=Knight%2C+et+al.+v.+Thompson%2C+e

Re: FW: Fouche V. NJ Transit

[Michael Masinter]

Bob,

Because an applicant may believe that he can perform the essential job  
functions with reasonable accommodations (e.g., a voluntary job swap),  
or in some cases that working on his sabbath is not actually  
essential, I don't think his answer would be fraudulent or given in  
bad faith.  In any event, if the function is essential, the applicant  
cannot perform it without a reasonable accommodation, and there is no  
reasonable accommodation, the applicant loses under Title VII, as in  
Hardison.


Just to be clear, I should note that the ADA only protects a  
qualified individual from discrimination, and defines qualified  
individual to mean one who can perform the essential functions of the  
job.  No similar language limiting Title VII coverage to qualified  
individuals defined as those who can perform essential job functions  
appears in section 701(j) or section 704(a) of Title VII.  For that  
reason, Title VII and the ADA may operate differently in reasonable  
accommodation cases, particularly since SCOTUS has never addressed the  
employee's prima facie case in a religious discrimination claim based  
on a failure to accommodate.  But it is hard to see how Title VII's  
duty of reasonable accommodation could be defined without reference to  
or consideration of essential job functions.



Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting b...@jmcenter.org b...@jmcenter.org:

Mike, I totally agree with the way you stated the issue -- it's the   
candidate's

ability to perform the essential requirements of the job, not their religion
that is the issue. Consequently, the employer need only ask: Can you work
Saturdays?



What is absent from this discussion, is the candidate's bad faith (no pun
intended), if not fraud, for failing to disclose upfront that she   
will not work

on Saturdays if offered the job notwithstanding the fact that the job
announcement stated that Saturday work is required. In my opinion,   
her lawsuit

should have been dismissed for failing state a claim upon which relief could
have been granted. To be eligible to equitable relief, a person must  
 do equity.



I would also echo the remarks of another commenter that the notion that other
employees could be compelled to work on their regular Saturdays off to
accommodate another person's religious belief is perverse and   
unjust. After many

decades of being a strong believer in religious liberty, I've seen its dark
side. The religion clauses of the First Amendment do not require   
accommodation

-- at least where others are negatively impacted.



Best wishes, Bob Ritter




On July 27, 2012 at 10:16 PM Michael Masinter masin...@nova.edu wrote:


Why, short of religious bias, would an employer ask about an
applicant's religious observances or practices?  Applicants may have
many reasons for preferring not to work on Saturday, or Sunday, or
whatever day is in question.

An employer who wishes to ascertain whether an employee can perform
essential job functions with or without reasonable accommodation can
ask the applicant that question, provided it asks that question of all
applicants and does not ask whether the applicant will require an
accommodation.  See, by analogy, the EEOC regulations governing
pre-employment inquiries and disabilities, 29 CFR 1630.13, 1630.14,
the associated interpretive guidance, and the Enforcement Guidance at
http://www.eeoc.gov/policy/docs/preemp.html  If an employee answers
that he cannot, then the reason does not matter; he is not qualified.
If the employee answers that he can, then the employer has no reason
to ask how he will do so absent visible evidence to the contrary, and
while that evidence may exist respecting a disability (an applicant
with one leg who proposes to climb telephone poles), it is much less
likely to exist respecting religious observances and practices.

Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting b...@jmcenter.org b...@jmcenter.org:

 Marc, you state: no employer with any choice at all will hire such a
 person
 and call it discrimination. If an applicant cannot fulfill the
 responsibilities
 of the job, the employer shouldn't hire the candidate. That's not
 discrimination, rather its sound judgment. I'm sorry if the
 idiosyncrasies of a
 religion cause problems for its adherents, but those problems should harm
 the
 rest of society.

 Bob Ritter


 On July 26, 2012 at 12:12 PM Marc Stern ste...@ajc.org wrote:

 The District Court missed an obvious possible accommodation:
 swapping shifts
 voluntarily with other employees

Re: FW: Fouche V. NJ Transit

[Michael Masinter]

Why, short of religious bias, would an employer ask about an  
applicant's religious observances or practices?  Applicants may have  
many reasons for preferring not to work on Saturday, or Sunday, or  
whatever day is in question.


An employer who wishes to ascertain whether an employee can perform  
essential job functions with or without reasonable accommodation can  
ask the applicant that question, provided it asks that question of all  
applicants and does not ask whether the applicant will require an  
accommodation.  See, by analogy, the EEOC regulations governing  
pre-employment inquiries and disabilities, 29 CFR 1630.13, 1630.14,  
the associated interpretive guidance, and the Enforcement Guidance at  
http://www.eeoc.gov/policy/docs/preemp.html  If an employee answers  
that he cannot, then the reason does not matter; he is not qualified.   
If the employee answers that he can, then the employer has no reason  
to ask how he will do so absent visible evidence to the contrary, and  
while that evidence may exist respecting a disability (an applicant  
with one leg who proposes to climb telephone poles), it is much less  
likely to exist respecting religious observances and practices.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting b...@jmcenter.org b...@jmcenter.org:


Marc, you state: no employer with any choice at all will hire such a person
and call it discrimination. If an applicant cannot fulfill the   
responsibilities

of the job, the employer shouldn't hire the candidate. That's not
discrimination, rather its sound judgment. I'm sorry if the   
idiosyncrasies of a

religion cause problems for its adherents, but those problems should harm the
rest of society.

Bob Ritter


On July 26, 2012 at 12:12 PM Marc Stern ste...@ajc.org wrote:

The District Court missed an obvious possible accommodation:
swapping shifts
voluntarily with other employees. in fact, cases very similar to   
this one get

resolved by such swaps. See, eg, Myer v NYCTA, 674 NE2d 305 (1996). So  not
only did the courts ignore this possibility, but they added the   
charge of bad

faith-which essentially means that Sababth observers are unwelcome in seven
day a week, 24 hour a day job-an exclusion noticeably absent from   
the statute.

It aslo suggests that, unlike for example, the handicapped, all  job
applicants requiring religious accommodation would have to disclose  
 that fact

up front. In practical terms, no employer with any choice at all will hire
such a  person. Proving that sort of employment  discrimination is almost
always impossible in individual cases
Marc Stern.
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Friday, July 20, 2012 11:56
To: religionlaw@lists.ucla.edu
Subject: Re: Fouche V. NJ Transit

The district court order in Fouche, reported at 2011 WL 2792450, seems
unremarkable; the CBA was straightforward; a more senior driver returned to
work, exercised his seniority rights not to work on Sunday, bumping Fouche
into a Sunday assignment, and Fouche responded by not coming to   
work on Sunday

rather than by working out, or even offering evidence that he could have
worked out, a voluntary job swap with a more senior employee.  The employer
discharged him for nonattendance, he exercised his CBA rights and   
grieved his
discharge; the employer first offered him reinstatement to part   
time work that

would exempt him from Sunday driving as a reasonable accommodation, and he
refused; it then reinstated him contingent upon passing a physical exam
required of returning employees, and he refused to show up for his physical.

Under Hardison, what plausible argument does Fouche have that 1) there was a
reasonable accommodation other than part time work and that 2) the employer
failed to offer it to him?  And if the offer of part time work was a
reasonable accommodation, isn't that offer sufficient, in and of itself, to
discharge the obligation to offer a reasonable accommodation even   
if it is not

the employee's preferred obligation?

I agree that the panel should have omitted its gratuitous and   
improper comment

about the employee's good faith, but its judgment -- affirming the district
court -- seems correct.  And given that unpublished   
non-precedential opinions

don't establish circuit law, I don't think the court has created a new
exemption from Title VII protection for religiously observant employees;
rather, it has just reminded applicants for seven day a week jobs   
governed by

a CBA that Hardison still controls.

Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern

Re: FW: Fouche V. NJ Transit

[Michael Masinter]

Marc,

I previously characterized the panel discussion of Fouche's good faith  
as improper; I did so because I agree that an employee has no  
obligation to disclose his religious beliefs (or his disability) when  
applying for a job.  But I am not convinced the court erred on the  
merits for two reasons.  First, I doubt Fouche's religious observances  
and practices precluded him from giving his employer the required four  
hour advance notice, or failing that, notice within four hours after  
his shift ends, that he would be absent from work.  Such notice  
accompanied by an explanation of his reason (religious observance)  
would have triggered a duty to accommodate that the employer could  
have discharged by offering to permit a voluntary shift swap. Second,  
Fouche did not seek permission for a voluntary shift swap; he sought a  
blanket exemption from sabbath work, and Hardison puts that beyond his  
reach.


Perhaps the district court misstated the facts, but on the facts as it  
presented them, its ruling still seems sound.


But you are right respecting the discussion of good faith; the court  
should never have suggested that sabbatarian observers are obliged to  
refrain from applying for employment that might conflict with their  
observances.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marc Stern ste...@ajc.org:

The District Court missed an obvious possible accommodation:
swapping shifts voluntarily with other employees. in fact, cases   
very similar to this one get resolved by such swaps. See, eg, Myer v  
 NYCTA, 674 NE2d 305 (1996). So  not only did the courts ignore this  
 possibility, but they added the charge of bad faith-which   
essentially means that Sababth observers are unwelcome in seven day   
a week, 24 hour a day job-an exclusion noticeably absent from the   
statute. It aslo suggests that, unlike for example, the handicapped,  
 all  job applicants requiring religious accommodation would have to  
 disclose that fact up front. In practical terms, no employer with   
any choice at all will hire such a  person. Proving that sort of   
employment  discrimination is almost always impossible in individual  
 cases

Marc Stern.
-Original Message-
From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael   
Masinter

Sent: Friday, July 20, 2012 11:56
To: religionlaw@lists.ucla.edu
Subject: Re: Fouche V. NJ Transit

The district court order in Fouche, reported at 2011 WL 2792450,   
seems unremarkable; the CBA was straightforward; a more senior   
driver returned to work, exercised his seniority rights not to work   
on Sunday, bumping Fouche into a Sunday assignment, and Fouche   
responded by not coming to work on Sunday rather than by working   
out, or even offering evidence that he could have worked out, a   
voluntary job swap with a more senior employee.  The employer   
discharged him for nonattendance, he exercised his CBA rights and   
grieved his discharge; the employer first offered him reinstatement   
to part time work that would exempt him from Sunday driving as a   
reasonable accommodation, and he refused; it then reinstated him   
contingent upon passing a physical exam required of returning   
employees, and he refused to show up for his physical.


Under Hardison, what plausible argument does Fouche have that 1)   
there was a reasonable accommodation other than part time work and   
that 2) the employer failed to offer it to him?  And if the offer of  
 part time work was a reasonable accommodation, isn't that offer   
sufficient, in and of itself, to discharge the obligation to offer a  
 reasonable accommodation even if it is not the employee's preferred  
 obligation?


I agree that the panel should have omitted its gratuitous and   
improper comment about the employee's good faith, but its judgment   
-- affirming the district court -- seems correct.  And given that   
unpublished non-precedential opinions don't establish circuit law, I  
 don't think the court has created a new exemption from Title VII   
protection for religiously observant employees; rather, it has just   
reminded applicants for seven day a week jobs governed by a CBA that  
 Hardison still controls.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marc Stern ste...@ajc.org:



An unpublished opinion of the Third Circuit in Fouche v.NJ Transit
(11-3031) portends excluding large classes of jobs from the
protection of Title VII.A full time  driver sought to be
accommodated

Reaasonable acccommodations and Observant Sabbatarians

[Michael Masinter]

Does an employer's duty to reasonably accommodate the work scheduling  
needs of a sabbatarian employee include compelling objecting coworkers  
to accept involuntary shift reassignments requiring additional weekend  
work in the absence of a formal seniority system?  Perhaps, says a  
split panel of the sixth circuit in an unpublished decision, splitting  
with two other circuits in Crider v. University of Tennessee,  
http://www.ca6.uscourts.gov/opinions.pdf/12a0800n-06.pdf


Ms. Crider was hired as the third of three university employees whose  
core job responsibilities included monitoring a portable emergency  
cell phone through which study abroad students could reach the  
university in an emergency at any time.  The university required the  
phone to be monitored at all times; the two employees who previously  
had assumed that responsibility by working alternate seven day shifts  
objected to the burden of working every other weekend, and the  
university sought to hire a third employee to spread the weekend  
workload.  Ms. Crider, a Seventh Day Adventist, applied for and  
accepted the job knowing of the scheduling requirements, but,  
consistent with her religious observances and practices, informed the  
university four days after she was hired that she would not work,  
including answer the phone, from sundown Friday through sundown  
Saturday.  Ms. Crider was unable to work out a voluntary shift swap  
with either of her two coworkers.  After two months of unsuccessful  
attempts to resolve the scheduling dispute, including a threat by one  
coworker to resign if forced to again work every other weekend, the  
university discharged Ms. Crider, and she sued, asserting that it had  
violated Title VII by failing to reasonably accommodate her.


The trial court granted summary judgment to the university, and in a  
2-1 decision, the sixth circuit reversed, with the panel splitting  
over whether TWA v. Hardison foreclosed involuntary shift  
reassignments of coworkers to additional weekend work as a reasonable  
accommodation.  The majority reasoned:  Title VII does not exempt  
accommodation which creates undue hardship on the employees; it  
requires reasonable accommodation “without undue hardship on the  
conduct of the employer's business.” To show that an involuntary  
shift assignment would impose an undue hardship on an employer, the  
majority, relying on pre-Hardison circuit precedent, held that the  
employer was required to prove that involuntary  reassignment would  
create a chaotic personnel problem rather than dissatisfaction among  
coworkers, and to do so, the university could not rely on the repeated  
threats by one of the two coworkers to resign since, per the panel,  
[t]he University provided nothing to show that Meador's threat was  
more than mere “grumbling.”


The dissent argued that the involuntary reassignment to accommodate  
Crider would be discrimination against Meador and Rost in violation  
of Title VII and that in any event, the personnel problems arising  
from an involuntary reassignment of weekend work to the two remaining  
coworkers was more than an abstract burden on the employer.


Should Title VII be construed to require an employer to compel  
objecting employees to work weekends to accommodate a coworker in the  
absence of a seniority system?  Presumably an employer could not  
compel another religiously observant coworker to accept a reassignment  
that violated that employee's religious observances and practices, so  
does the majority's ruling require the employer to engage in religious  
discrimination by only reassigning employees who religious observances  
and practices do not foreclose weekend work?  If so, what protection  
does Title VII offer to sabbatarian employees who cannot arrange  
voluntary swaps?  And what purpose does the court serve by issuing an  
unpublished opinion?



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



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Re: Fouche V. NJ Transit

[Michael Masinter]

The district court order in Fouche, reported at 2011 WL 2792450, seems  
unremarkable; the CBA was straightforward; a more senior driver  
returned to work, exercised his seniority rights not to work on  
Sunday, bumping Fouche into a Sunday assignment, and Fouche responded  
by not coming to work on Sunday rather than by working out, or even  
offering evidence that he could have worked out, a voluntary job swap  
with a more senior employee.  The employer discharged him for  
nonattendance, he exercised his CBA rights and grieved his discharge;  
the employer first offered him reinstatement to part time work that  
would exempt him from Sunday driving as a reasonable accommodation,  
and he refused; it then reinstated him contingent upon passing a  
physical exam required of returning employees, and he refused to show  
up for his physical.


Under Hardison, what plausible argument does Fouche have that 1) there  
was a reasonable accommodation other than part time work and that 2)  
the employer failed to offer it to him?  And if the offer of part time  
work was a reasonable accommodation, isn't that offer sufficient, in  
and of itself, to discharge the obligation to offer a reasonable  
accommodation even if it is not the employee's preferred obligation?


I agree that the panel should have omitted its gratuitous and improper  
comment about the employee's good faith, but its judgment -- affirming  
the district court -- seems correct.  And given that unpublished  
non-precedential opinions don't establish circuit law, I don't think  
the court has created a new exemption from Title VII protection for  
religiously observant employees; rather, it has just reminded  
applicants for seven day a week jobs governed by a CBA that Hardison  
still controls.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marc Stern ste...@ajc.org:



An unpublished opinion of the Third Circuit in Fouche v.NJ Transit   
(11-3031) portends excluding large classes of jobs from the   
protection of Title VII.A full time  driver sought to be   
accommodated in not driving on Sunday. The  employer claimed its   
labor contract precluded accommodation; whether this is so, depends   
on whether, for example, swaps were possible and from the bare bones  
 description of the facts given by the Court one cannot tell. But  
the  court went on to say that it doubted the good faith of the  
claimant  who applied for a job in a seven day a week employment  
situation  when he knew or should have known in advance of the  
conflict with  his religious requirements.  Given the number of  
accommodations  worked out in such cases there is in any event no  
factual basis for  this doubt. Worse, the court's off-hand comment  
suggests that all  employers in need of seven day a week services  
(e.g. police   ,hospitals  etc.) have a new , non-statutory,  
unprecedented, defense  in Title VII religious accommodation cases.

Marc Stern





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RE: Ban on Feeding Homeless

[Michael Masinter]

The Eleventh Circuit sees neither a free speech nor a free exercise  
problem with time, place, and frequency restrictions on public  
feedings in traditional public fora.  First Vagabonds Church of God v.  
City of Orlando, 638 F.3d 756 (11th Cir. 2011) (en banc) (assuming  
without deciding that feeding is expressive conduct, restriction  
upheld under O'Brien), reinstating First Vagabonds Church of God v.  
City of Orlando, 610 F.3d 1274, 1285-1292 (11th Cir. 2010) (public  
feeding restrictions are generally applicable laws that do not violate  
the free exercise clause, applying Smith, or Florida's RFRA).


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting James Edward Maule ma...@law.villanova.edu:

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


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


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


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


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


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


Jim Maule

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

Sent: Wednesday, July 11, 

Re: Providing public school credits for release-time religious classes

[Michael Masinter]

Rick,

If a public school district can award public school educational credit  
for two hours of purely religious release time instruction, what  
limiting principle constrains it from awarding ten or, for that  
matter, a full year's worth of public school credit for release time  
religious instruction?  What secular objective does this program  
serve?  To be sure a parent can opt out of the public school system  
and send a child to a school that teaches only religious doctrine  
(whether in Spartanburg, Borough Park, or Dearborn), but why does that  
rule also permit that parent to secure public school academic credit  
and a public school diploma for that instruction?


The panel's misplace reliance on Lanner v. Wimmer is no answer; Lanner  
reaffirms Allen's authorization to insist that transfer credits cover  
prescribed subjects of instruction.  Lanner put it this way:


School authorities may inquire into the training of teachers and  
whether a particular course covered a subject for which credit could  
be granted. Such inquiry is analogous to the state's constitutional  
perusal of full-time private schools.


Lanner affirmed the injunction insofar as it forbade academic credit  
for elective courses, leaving the school district free on remand to  
adopt religiously neutral criteria that focus on whether a release  
time course covers a subject for which credit could be granted.   
Although Lanner doesn't put release time credit off limits simply  
because a release time course has religious content, it reaffirms  
Allen's rule that, religious content aside, the subject covered be one  
for which a public school can grant academic credit.


Public schools do not grant academic credit for instruction in toenail  
cutting; the reason isn't because toenail cutting has an impermissible  
religious purpose or because it impermissibly advances religion; it is  
that toenail cutting is not a subject for which public school credit  
can be granted irrespective of where the instruction takes place.   
Under the religion clauses, religious instruction cannot be a public  
school prescribed subject of instruction, so a public school cannot,  
through its release time program, selectively favor it for academic  
credit.


There's no reason to ask whether South Carolina could award academic  
credit for all instruction irrespective of subject (including toenail  
cutting) since it does not do that; what it does is single out  
religious instruction for release time academic credit.  That’s a far  
cry from accepting for transfer credits a year at St. Joseph High  
based on the factual judgment that St. Joseph teaches prescribed  
subjects of instruction.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Rick Garnett rgarn...@nd.edu:


Dear Marty,

Credits are awarded, I assume, routinely when students transfer   
from, say, St Joseph High School to Thomas Jefferson High School   
for, say, courses in Theology. In my view, this does not raise   
Establishment / Larkin issues. Our disagreement, I suppose, proceeds  
 from a different view of what the state is doing when it awards   
credits to students. I think, again, that Judge Niemeyer is right.


Best, R

Sent from my iPhone

On Jun 30, 2012, at 11:13 AM, Marty Lederman   
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:


I should add that, wholly apart from whether the particular   
Spartanburg Bible School class was in any way, as Rick suggests, of   
some secular educational value (which was, I repeat, not the basis   
for the court's holding), the South Carolina statute at issue   
expressly provides that [a] school district board of trustees may   
award high school students no more than two elective Carnegie units   
for the completion of released time classes in religious instruction.


That is to say, the credits are specifically and unequivocally being  
 awarded for the religious instruction as such.



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RE: Providing public school credits for release-time religious classes

[Michael Masinter]

Zorach is a release time case; it is not an academic credit case.  If  
the distinction between academic credit (Allen) and release time  
(Zorach) matters, and I think it does for reasons previously  
expressed, then Spartanburg is free to offer release time selectively  
for religious instruction (Zorach), but not to offer academic credit  
for it unless the religious school's course is a permissible public  
school subject of instruction (Allen), and, religious instruction, as  
distinct from the history of religion, is not a permissible subject of  
public school instruction.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Scarberry, Mark mark.scarbe...@pepperdine.edu:

Setting aside the Oh, sure, for whatever meaning it may have, the   
same issues are raised by Zorach. If the school district may release  
 students for religious instruction as an accommodation, must it  
also  release students for Pilates (note the spelling and  
capitalization)  classes, pottery classes, etc.? If a student gets  
release time for a  religious class, or credit for a religious  
class, then the student  should also get release time, or credit,  
for a philosophy or history  of thought or atheism or secular  
humanist class. I'm not sure how  broadly the net must be cast as a  
matter of constitutional law, but  in each instance that question  
must be addressed.


By the way, what makes an outside pottery class any less valuable   
than an inside pottery class? I have a very ugly coffee mug that I   
made in a public school 7th grade art class. I doubt that the inside  
 class did any more for my nonexistent artistic skills in  
furtherance  of the school district's mission than an outside  
class would have.


Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty   
Lederman

Sent: Saturday, June 30, 2012 9:26 AM
To: Law  Religion issues for Law Academics
Subject: Re: Providing public school credits for release-time   
religious classes


Oh, sure.  If a school counts credits for graduation purposes   
based on total hours spent in any school -- such that it gives   
credit for the student's outside courses in pottery, Pilades,   
drivers' education, SAT test-taking, etc. -- then of course it   
should not, and need not, discriminate against hours spent in   
religious courses.  But no school does any such thing.  Instead, the  
 credits presumably must be for classes in service of the school   
system's pedagogic mission.
On Sat, Jun 30, 2012 at 12:12 PM, Scarberry, Mark   
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu   
wrote:
I'm having trouble seeing just what the awarding of credit means   
here and how it's problematic that a public school gives students   
credit for time sitting in a different classroom. There is no   
constitutional obligation on a public school to provide any   
particular level or amount or quality of instruction. The awarding  
 of a high school diploma is not a conferring of a public right or   
license or anything of the sort.


I believe that religious schools include religion classes in their   
curriculum as part of the number of hours of instruction required   
for graduation under their accrediting bodies' standards and   
presumably under whatever Education Code may apply. If that practice  
 sufficiently meets societal needs, then I don't understand why (as  
a  matter of constitutional law) the public schools should have to  
drag  in students to sit for additional public school hours when the  
 students have a release time religious educational experience.


Consider this hypo: A public school district has relatively few   
specified high school graduation requirements (only two years of   
English, two years of math, etc.), but it does require that students  
 be in school from 8am to 3pm. The school district sets up a release  
 time program for religious instruction from 2-3pm. Must the school   
district now require students who are in the release time program to  
 return to the public school and sit through a study hall period (or  
 other class) for an additional hour, so that they have seven hours   
on the public school campus? If not, then the release time students   
are in effect being given credit for their release time   
educational experience.


Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


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RE: Providing public school credits for release-time religious classes

[Michael Masinter]

The tenth circuit's judgment upheld an injunction against the policy  
as it was written, and in doing so accurately cited Allen.  The  
panel's later statement of what the school district might do on remand  
purported to decide an issue not before it (the constitutionality of a  
program the school had never adopted), and to that extent, would seem  
to be dictum, not binding in the tenth circuit and, for the reasons  
already discussed, not even persuasive in the fourth circuit.  As a  
close friend who served for many years on a court of appeals regularly  
reminded his colleagues the more we write beyond what is necessary to  
decide a case, the more from which we will later have to recede.


I should qualify what I wrote in this respect, though -- I'm not  
entirely confident that the Court as currently comprised would find  
teaching religious doctrine in a public school elective course to be  
unconstitutional, though I hope that for Chief Justice Roberts, that  
would be a bridge too far.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Scarberry, Mark mark.scarbe...@pepperdine.edu:

Mike Masinter suggested that the Fourth Circuit in Moss was mistaken  
 in relying on its prior decision in Lanner v. Wimmer. Mike put it   
this way:



Lanner affirmed the injunction insofar as it forbade academic   
credit for elective courses, leaving the school district free on   
remand to adopt religiously neutral criteria that focus on whether a  
 release time course covers a subject for which credit could be   
granted.   Although Lanner doesn't put release time credit off   
limits simply because a release time course has religious content,   
it reaffirms Allen's rule that, religious content aside, the subject  
 covered be one for which a public school can grant academic credit.


I have to disagree with his reading of Lanner (and of Allen). The   
court in Lanner did not require that the subject covered be one for  
 which a public school can grant academic credit.


Lanner allowed release time religious instruction to be counted as   
custodial time credit (that is, to be counted as part of the number   
of hours each day that the student was to be in class under   
compulsory attendance laws), and to be counted as eligibility credit  
 (that is, the number of hours of classes per day that the student   
had to be enrolled in to be eligible for sports teams and other   
extra-curricular activities).


The court would have allowed release time religious instruction to   
be counted as academic elective credit (that is, to count toward the  
 number of elective units needed for graduation), except for an   
entanglement problem. Under the state education department's policy,  
 schools were not to give academic elective credit for courses   
devoted mainly to denominational instruction. The court held that   
the Establishment Clause did not permit the school to determine   
whether a course was mainly devoted to denominational instruction,  
 because that would create an impermissible entanglement. Contrary  
to  Mike's reading of the case, the court did not require that the   
course be one for which a public school could grant academic credit.


The court in Lanner stated:

If the school officials desire to recognize released-time classes   
generally as satisfying some elective hours, they are at liberty to   
do so if their policy is neutrally stated and administered.   
Recognizing attendance at church-sponsored released-time courses as   
satisfying graduation requirements advances religion no more than   
recognizing attendance at released-time courses or full-time   
church-sponsored schools as satisfying state compulsory attendance   
laws. If the extent of state supervision is only to insure, just as   
is permitted in the case of church-sponsored full-time private   
schools, that certain courses are taught for the requisite hours and  
 that teachers meet minimum qualification standards, nothing in   
either the establishment or free exercise clauses would prohibit   
recognizing all released-time classes or none, whether religious in   
content or not, in satisfaction of graduation requirements. It is   
when, as here, the program is structured in such a way as to require  
 state officials to monitor and judge what is religious and what is   
not religious in a private religious institution that the   
entanglement exceeds permissible accommodation and begins to offend   
the establishment clause.


Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law





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

Sent: Saturday, June 30, 2012 10:00 AM
To: Law  Religion issues for Law Academics

Re: Religious exemptions and discrimination

[Michael Masinter]

Regarding Eugene's second point, I suspect the narrow scope of Title  
Two of the 1964 CRA speaks more to what was politically possible in  
1964 than to a judgment that, with only narrow exceptions, businesses  
should be free to inflict dignitary harm by engaging in purposeful  
racial or religious discrimination.


Almost thirty years later, when Congress enacted the Americans With  
Disabilities Act, it defined public accommodations far more broadly in  
section 12181 to both prohibit intentional discrimination on the basis  
of disability and to require public accommodations to reasonably  
accommodate at their expense individuals with disabilities.


Once Runyon v. McCrary held that 42 U.S.C. 1981 broadly prohibited  
private racial discrimination in the making of contracts, and  
Al-Khazraji and Shaare Tefila held that the nineteenth century  
understanding of race meant that race encompassed national origin and  
religion, section 1981 became the more significant vehicle for  
challenging private contractual discrimination.  When the Court  
reopened the  question of section 1981's application to private  
transactions by setting Patterson v. McLean Credit Union for  
reargument, Congress amended section 1981 to settle the question and  
further expanded its scope in the Civil Rights Act of 1991.


Section 1981 and the ADA both appear to apply to cab drivers,  
professional photographers, and pharmacies.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Volokh, Eugene vol...@law.ucla.edu:

I think this is combining under the rubric of   
?discrimination? many different things.  First, item 2 doesn?t   
involve discrimination based on the passenger?s race, religion, sex,  
 and so on which is why businesses generally are free to  
discriminate  against patrons with wine, or employees who drink  
wine.  The  relevant law here is a sort of ?common carrier? rule  
that imposes on  a few businesses (and only a few) the obligation to  
do business with  pretty much everyone, an obligation that is much  
broader than that  imposed by antidiscrimination law.  Relatedly,  
item 1 doesn?t  involve discrimination in the antidiscrimination law  
sense (except  insofar as one can argue that such a refusal is sex  
discrimination  because only women take Plan B, which I doubt will  
succeed).   Indeed, I take it that all of us would agree that a  
supermarket  could choose to refuse to stock condoms (male or  
female) or  over-the-counter contraceptives.  Rather, the relevant  
law is a  professional obligation imposed on pharmacies to stock  
either all  in-demand pharmaceuticals, or at least to stock this  
particular  pharmaceutical.


Second, even true discrimination rules have   
historically been applied more narrowly in some areas than in   
others, and this reflects (in addition to federalism concerns) real   
differences in the way discrimination affects people.  Title II of   
the Civil Rights Act, for instance, does not constrain pharmacies,   
cab drivers, or professional photographers; indeed, it applies to   
only a narrow range of places of public accommodation.  It does,   
however, affect all businesses with more than a threshold number of   
employees.  And this makes sense, because as to many places of   
public accommodation, the chief harm with discrimination is only   
dignitary:  If Elaine Huguenin refuses to photograph a same-sex   
commitment ceremony, the couple might be annoyed by the refusal, but  
 they can probably find another photographer at little cost, at  
least  in most places.  (Indeed, the couple may prefer to hire a   
photographer who they feel will see their ceremony as beautiful, and  
 thus be inspired to photograph it that way, rather than a   
photographer who is being forced by law to photograph something she   
disapproves of.)  On the other hand, employment discrimination can   
dramatically affect people?s livelihoods, especially since   
employment is often much less fungible than most commercially   
available services.


Third, different sorts of discrimination rules   
relate differently to other constitutional rights, and liberty   
rights more generally.  Requiring a photographer to photograph   
something she doesn?t want to photograph affects her  First   
Amendment right not to create expressive works that she disapproves   
of.  (Even those who think wedding photography isn?t expressive   
enough to qualify for that purposes might, I think, agree that a   
commercial press release writer should have the right to refuse to   
write press releases for Scientology ? though that?s discriminating   
based on religion ? or to write a glowing account of a same-sex   
ceremony.)  Likewise, 

Re: Snyder v. Phelps

[Michael Masinter]

Perhaps Claiborne Hardware is the better analogy.  Most of Clarence  
Evers' speech to the crowd consisted of protected speech on a matter  
of public concern -- a politically motivated boycott of white  
merchants to remedy racial discrimination.  Taken in isolation, a  
couple of his statements could be construed as unprotected threats  
against anyone who broke the boycott.  But rather than analyze those  
statements in isolation, Claiborne Hardware saw them in the larger  
context of Evers' speech, and because the theme of the speech was  
protected political speech, liability could not rest on those isolated  
statements.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marty Lederman lederman.ma...@gmail.com:


Perhaps.  Or perhaps those signs might refer, like most of the other
messages, to the government and its agents more generally.  And perhaps that
would be good enough reason to immunize such statements -- because there is
a likelihood they were on matters of public concern, and would be understood
as such by a (forgive me) reasonable observer.  At least that would be a
rationale -- one that would limit the holding so that it did not apply to
speech unambiguously about a private figure (an issue that could be
reserved).

But what Roberts writes is this:  *Even if a few of the signs*?such as
?You?re Going to Hell? and ?God Hates You??*were viewed as containing
messages related to Matthew Snyder or the Snyders specifically*, that would
not change the fact that the overall thrust and dominant theme of Westboro?s
demonstration spoke to broader public issues.

This *appears* to suggest that speech can't be the source of IIED liability
if its overall thrust is with respect to broader public issues, even if
certain of its constituative statements are only about non-public-figure
targets.
On Wed, Mar 2, 2011 at 7:13 PM, Ira Lupu icl...@law.gwu.edu wrote:


It's not at all obvious that You're Going to Hell and God Hates You
refers to  Mr. Snyder (the father), or to his deceased son, or to anyone in
particular.  Perhaps the You in these messages refers to anyone who
supports gay rights, or the Roman Catholic Church.  So Isn't there an echo
here of NYT v. Sullivan, where (as I recall, perhaps erroneously) the Court
did not remand because a jury could not reasonably find that the NYT ad was
of and concerning Sullivan?

  On Wed, Mar 2, 2011 at 6:45 PM, Marty Lederman lederman.ma...@gmail.com
 wrote:


  The most troubling (or at least undefended) part of the majority
opinion is why the particular signs specifically about Snyder and arguably
not on a matter of public concern ? namely, ?You?re Going to Hell? and ?God
Hates You? ? should be immunized merely because the ?overall thrust? of the
collective messages was on matters of public concern.  (Get ready to teach
your students the ?overall thrust? doctrine.  Akin to the taken   
as a whole

component of obscenity doctrine?)

That is to say ? why wasn?t the proper resolution to remand with
instructions that the jury is to be charged only with respect to the
non-public-concern speech?  I can imagine reasons why the Court might be
reluctant to do that and might prefer an ?overall thrust? test ? e.g., to
provide breathing space; or because the jury would invariably be   
tainted by,

and inclined to assign liability for, the surrounding public concern
speech; or because the record didn't demonstrate that the Snyder family was
aware of those particular messages (if that's the case); or perhaps even on
the theory that speech *about Snyder* but directed to a public audience
is more constitutionally protected than DunBradstreet-like speech to a
purely private audience -- but the Court doesn't bother to invoke any such
explanations, or even try to distinguish, e.g., the old ?Voltaire/flyleaf?
reasoning.

On the other hand, most of the Internet speech here was, in fact, directed
to a public audience but concerning a private figure, and the   
Court goes out

of its way to emphasize that it's not deciding that question.  So perhaps
some such speech might still not be entitled to full constitutional
protection . . . at a minimum, where it constitutes the overall thrust of
the expression viewed as a whole.

On Wed, Mar 2, 2011 at 6:05 PM, Steven Jamar stevenja...@gmail.comwrote:


Snyder v. Phelps, 8-1.

C.J. Roberts:

 Whether the First Amendment prohibits holding Westboro liable for its
speech in this case turns largely on whether that speech is of public or
private concern, as determined by all the circumstances of the case.


http://www.supremecourt.gov/opinions/10pdf/09-751.pdf
 http://www.supremecourt.gov/opinions/10pdf/09-751.pdf
   --
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute for Intellectual Property 

RE: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

 be stronger the closer the company  
 is to a uniform, franchise model, where every single detail of the   
operation is considered part of the brand experience. So the more   
bohemian the bookstore, the less brand identity it could claim. It   
would also be interesting to see whether a non-profit bookstore   
would have a better claim; I suspect it would though I am not sure   
that there would be a very principled reason for it.


The converse situation also makes for an interesting hypothetical.   
Say a religious (or militantly agnostic) person goes to work for   
Freedom From Religion Foundation and refused a requirement to wear   
their Village Atheist t-shirt while working in the FFRF bookstore:  
 http://www.ffrf.org/shop/t-shirts/new-village-atheist/. [Btw, I   
can't help but think that this is some sort of allusion to the   
popular GW Bush bumper sticker.]  Presumably FFRF could make the   
same argument as the Christian bookstore--it would harm its brand   
identity for employees who deal with the public to opt out of   
wearing the Village Atheist T-shirts. I think Eugene may have been   
making a similar point with respect to the Las Cruces logo, as it is  
 part of the brand of the city.


Eric


From: religionlaw-boun...@lists.ucla.edu   
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan   
[aebrownst...@ucdavis.edu]

Sent: Tuesday, December 21, 2010 5:06 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols


I agree with Michael for the most part and certainly with his   
statement that expressions of religious faith are not analogous to   
expressions of racial subordination. But I'm not sure if he is   
suggesting that there is a difference between a uniform that stated   
I am not a Pentecostal and a uniform that stated I am a   
Pentecostal. If everyone wears the latter statement on their   
uniform, I would think the clear message is that no members of other  
 faiths or non-believers work for that employer and that prospective  
 employees who are unwilling to make such an affirmation should not   
apply for employment. I agree that religious statements expressing   
other messages may be much less problematic and indicative of   
discrimination and that requesting an accommodation is an easier   
route to pursue.


Alan

-Original Message-
From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael   
Masinter

Sent: Tuesday, December 21, 2010 1:47 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Federal regulators apparently force bank to take down   
religioussymbols


Alan's examples of uniform language expressing racial discrimination  
 or hostility seem more than sufficient to establish a conventional   
disparate treatment claim since the evident purpose and effect of   
the language is to discourage African-Americans from working for the  
 employer.  Similarly, an employer who required employees to wear a   
uniform that said No Jews work here or I am not a Pentecostal
should expect to incur disparate treatment liability for religious   
discrimination.


Perhaps the employer who requires his employees to display a   
religious message also intends to discourage members who do not   
share that faith from working for him; if so, the employer is indeed  
 liable for disparate treatment.  But I would not be so quick to  
draw  that inference from a more positive religious message;  
expressions  of religious faith generally are not analogous to  
expressions of  racial subordination.  In the event, if I am a  
Jewish employee who  objects to wearing an expression of Christian  
faith as a burger  joint employee, I don't have to prove that the  
purpose of the  message is religious subordination; all I have to do  
is request an  accommodation.  701(j) eliminates the need to  
identify either the  purpose or likely effect employees and  
applicants of a religious  message; all the objector needs is a  
sincere religious objection to  its expression in circumstances that  
permit a reasonable  accommodation.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Brownstein, Alan aebrownst...@ucdavis.edu:


I don't know enough about employment discrimination law to discuss
whether there is any case law to support my analysis (certainly
Michael is far more knowledgeable in this area of law than I am).
But as a normative manner, I would argue that a work requirement
that in essence tells employees to publicly disclaim their faith
discriminates on the basis of religion. The uniform requirements I
mentioned in my last post would fit that description.  If we were
discussing race

RE: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

I do not think a for profit fast food employer covered by Title VII  
can lawfully refuse a sincerely based request for a religious  
accommodation when that request is to refrain from wearing either  
There is no God or Jesus Christ is my Lord and Savior and, though  
there is no case that comes to mind precisely on point, I would start  
with EEOC v. Townley Engineering  Manufacturing Co., 859 F.2d 610  
(9th Cir. 1988).  If Townley cannot compel its objecting employee to  
attend but not actively participate in devotional services, then I do  
not see how the fast food restaurant would have any prayer of  
prevailing in the face of a request for accommodation.




Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Brownstein, Alan aebrownst...@ucdavis.edu:

I always assumed, although I admit without much reflection, that the  
 duty to accommodate operated in parallel to the duty not to   
discriminate. Thus, if a religious organization is exempted from the  
 prohibition against religious discrimination, it is also exempt  
from  any duty to accommodate. (Of course, many religious  
organizations do  not discriminate on the basis of religion in  
hiring for many  positions and do accommodate employees of others  
faiths to the  extent that they can reasonably to do so.)


A commercial business like In-N-Out Burger is prohibited from   
discriminating on the basis of religion in hiring and is subject to   
a duty to accommodate.  I don't know a lot about the division of   
labor in these kinds of fast food operations, but one possible   
accommodation for an employee whose religious beliefs precluded the   
distribution of religious messages of other faiths would be to   
transfer that individual to food preparation rather than distribution.


I can imagine some commercial operations in which accommodations   
would be clearly impractical. If an non-Jewish employee accepts a   
job in a business that makes and sells menorahs, for example, it   
would be difficult to accommodate religious beliefs that prevent him  
 from participating in the creation or distribution of items used in  
 the religious rituals of other faiths.


There is probably a continuum here. If that is correct, what belongs  
 near the prohibited discrimination or required accommodation pole  
of  the continuum. Eric, may a fast food employer require employees  
to  wear uniforms that affirm There is no God or Jesus Christ is  
my  Lord and Savior without accommodating religious employees who  
ask  to be exempted from this requirement?


Alan



-Original Message-
From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach

Sent: Monday, December 20, 2010 5:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down   
religioussymbols



Alan --

Does your analysis below apply equally to religious organizations   
and non-religious organizations?


One example I think would be interesting in the latter category is   
In-N-Out Burger, which prints Bible references (e.g. John 3:16) on  
 every piece of food packaging. What sort of accommodation would an   
employee who had religious objections to the Bible references be   
entitled to?  Although In-N-Out is clearly for-profit, it also has   
at least some religious purposes.


Eric


From: religionlaw-boun...@lists.ucla.edu   
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan   
[aebrownst...@ucdavis.edu]

Sent: Monday, December 20, 2010 2:26 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take   down  
religioussymbols


I think Doug is correct that there is a religious accommodation   
claim here. Maybe there is a hostile work environment argument as   
well. But I was thinking of a claim that falls somewhere in between   
these two conventional frameworks.


I have no problem with Erik's comment that competing truth claims of  
 different religions are not intrinsically offensive to members of   
other faiths. Of course, some religious truth claims are offensive   
to members of other faiths, see e.g., anti-Catholic and anti-Jewish   
religious statements by some  clergy of other faiths which were   
fairly common in years past. But let's put that issue aside.


It isn't clear to me that discriminatory conduct has to communicate   
an invidious message. An employer may not intend to communicate an   
offensive message if he requires employees to display religious   
symbols on their desk (or uniforms) that communicate a message that   
is starkly inconsistent with the beliefs of other faiths. If it is   
common knowledge, and the employer 

RE: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

As always, Eugene asks good questions.

Religious discrimination claims can take several forms -- disparate  
treatment,  failure to accommodate, and in addition harassment and  
disparate impact.


I am not familiar with any case that treats an employer's mandated  
expression of religious (dis)belief as disparate treatment since such  
a rule, uniformly applied to all similarly situated employees, would  
be disparate treatment only if it were adopted for the purpose of  
discouraging employees or applicants of a particular faith from  
applying or continuing to work.  So I would expect any claim relating  
to compelled expression to arise as a reasonable accommodation claim.   
I suppose compelled expression could be part of a religious harassment  
claim, but religious harassment claims are rare given the high burden  
(severe or pervasive) that claimants face.  Facing that higher burden,  
a sensible employee or her lawyer would surely prefer a reasonable  
accommodation claim.  Disparate impact claims raise even more  
difficult issues respecting classwide impact and preclude recovery of  
damages, so I wouldn't expect to see one of those either.


My sense is that neither the Las Cruces employee nor the Mogen David  
employee is entitled to an accommodation relating to vehicles or  
stationery.  The city seal and Mogen David emblem identify the  
employer; since no reasonable observer would see them as the compelled  
expression of belief, I'd expect a court to hold that requiring the  
employer to forego their use at the request of a religious believer  
would impose an undue hardship on the conduct of the employer's  
business.


It's worth noting that section 702(a) of Title VII exempts religious  
corporations, associations, and societies from the prohibition against  
religious discrimination, and therefore from any duty of religious  
accommodation.  Although courts have struggled to work out a standard  
for identifying employers entitled to the religious corporation  
exemption that is both faithful to the intent of its drafters and  
consistent with the establishment clause, all of the competing  
standards impose a de facto requirement that the employer be organized  
as a not for profit business even while insisting that the form of the  
organization is only part of the analysis.  Townley Engineering lost  
on its claim to a religious corporation exemption for precisely that  
reason.


Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Volokh, Eugene vol...@law.ucla.edu:

	Michael:  How religious does the statement have to be before   
requiring it becomes religious discrimination (which is per se   
forbidden, unless religion is treated as a BFOQ, a high bar) as   
opposed to absence of religious accommodation (which may be   
permissible, if an accommodation is an undue hardship)?


	Say, for instance, that someone who drives around in Las Cruces,   
N.M., city cars insists on taping over the city seal (which is   
mainly three crosses), or insists on crossing out the crosses on any  
 city stationery that he uses.  Should he be allowed to do that?
What if he does delivery for Mogen David Wine Corporation (which I   
take it doesn't qualify for the religious entity exemption under   
Title VII), and wants to tape over the Mogen David itself on the   
trucks?  The list could go on.


Eugene


-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Tuesday, December 21, 2010 10:01 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

I do not think a for profit fast food employer covered by Title VII
can lawfully refuse a sincerely based request for a religious
accommodation when that request is to refrain from wearing either
There is no God or Jesus Christ is my Lord and Savior and, though
there is no case that comes to mind precisely on point, I would start
with EEOC v. Townley Engineering  Manufacturing Co., 859 F.2d 610
(9th Cir. 1988).  If Townley cannot compel its objecting employee to
attend but not actively participate in devotional services, then I do
not see how the fast food restaurant would have any prayer of
prevailing in the face of a request for accommodation.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Brownstein, Alan aebrownst...@ucdavis.edu:

 I always assumed, although I admit without much reflection, that the
  duty to accommodate operated in parallel to the duty

RE: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

Alan's examples of uniform language expressing racial discrimination  
or hostility seem more than sufficient to establish a conventional  
disparate treatment claim since the evident purpose and effect of the  
language is to discourage African-Americans from working for the  
employer.  Similarly, an employer who required employees to wear a  
uniform that said No Jews work here or I am not a Pentecostal  
should expect to incur disparate treatment liability for religious  
discrimination.


Perhaps the employer who requires his employees to display a religious  
message also intends to discourage members who do not share that faith  
from working for him; if so, the employer is indeed liable for  
disparate treatment.  But I would not be so quick to draw that  
inference from a more positive religious message; expressions of  
religious faith generally are not analogous to expressions of racial  
subordination.  In the event, if I am a Jewish employee who objects to  
wearing an expression of Christian faith as a burger joint employee, I  
don't have to prove that the purpose of the message is religious  
subordination; all I have to do is request an accommodation.  701(j)  
eliminates the need to identify either the purpose or likely effect  
employees and applicants of a religious message; all the objector  
needs is a sincere religious objection to its expression in  
circumstances that permit a reasonable accommodation.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Brownstein, Alan aebrownst...@ucdavis.edu:

I don't know enough about employment discrimination law to discuss   
whether there is any case law to support my analysis (certainly   
Michael is far more knowledgeable in this area of law than I am).   
But as a normative manner, I would argue that a work requirement   
that in essence tells employees to publicly disclaim their faith   
discriminates on the basis of religion. The uniform requirements I   
mentioned in my last post would fit that description.  If we were   
discussing race discrimination, I would probably argue that   
requiring all employees to wear uniforms that state No   
African-Americans work here, or I am not an African-American   
would also be discriminatory. Since there is no duty to accommodate   
with regard to race, I assume those who disagree would have to argue  
 that these requirements do not constitute race discrimination. I   
find that conclusion troubling.


As for the other questions, requiring an employee to drive a truck   
with a sign on it that is generally understood to communicate the   
employer's religious message might invoke a duty to accommodate --   
but I would anticipate that the accommodation would result in a   
change in the employee's duties -- not the covering of the sign. If   
an employee works for a company that produces or distributes   
products to be used for religious rituals, wine for Passover,   
candles for religious services , and other products -- most requests  
 for accommodation will constitute an undue hardship on the employer.


Alan

-Original Message-
From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh,   
Eugene

Sent: Tuesday, December 21, 2010 11:19 AM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down   
religioussymbols


	I appreciate Michael's thoughtful and detailed response.  But it   
sounds like his approach, then, is different from Alan's, since Alan  
 apparently would treat some such cases as disparate treatment cases  
 (yes?).  If so, Alan, what would you think about the Las Cruces,   
Mogen David, or There Is No God on uniforms, cars, burger   
wrappers, and so on?


Eugene


-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Tuesday, December 21, 2010 11:12 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

As always, Eugene asks good questions.

Religious discrimination claims can take several forms -- disparate
treatment,  failure to accommodate, and in addition harassment and
disparate impact.

I am not familiar with any case that treats an employer's mandated
expression of religious (dis)belief as disparate treatment since such
a rule, uniformly applied to all similarly situated employees, would
be disparate treatment only if it were adopted for the purpose of
discouraging employees or applicants of a particular faith from
applying or continuing to work.  So I would expect any claim relating
to compelled expression to arise as a reasonable accommodation claim.
I suppose compelled

Re: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

The Eleventh Circuit's recent religious discrimination, religious  
accommodation, and retaliation decision, Dixon v. The Hallmark  
Services, http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf does  
not foreclose a reasonable accommodation claim or a disparate  
treatment claim by an employee forced to remove religious objects from  
her workspace; to the contrary, it held that the statement allegedly  
made in conjunction with her discharge that she was too religious was  
direct evidence of discriminatory intent, and that because management  
was on notice of the conflict between her religious belief that she  
must display religious objects in her workspace and its contrary  
policy, it was obliged to consider a reasonable accommodation unless  
granting one would cause undue hardship.  The court reversed summary  
judgment for the employer on both grounds, reasoning that the former  
turned on the contested question of whether the statement that the  
employee was too religious was actually made, and the latter on the  
case by case and as yet undeveloped factual specifics of what is a  
reasonable accommodation or an undue hardship.


Dixon did hold that neither Title VII nor the Fair Housing Act forbids  
a private employer from establishing a no religious symbols policy,  
and that an objection to such a policy therefore could not support an  
opposition clause claim even though its application to an individual  
employee with contrary religiously motivated practices could support a  
reasonable accommodation claim.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Douglas Laycock dlayc...@virginia.edu:

It doesn't make sense to call religious truth claims offensive   
(although that is common parlance), but it does make sense to say   
that an employee who doesn't believe such a claim should not have to  
 display the claim or its symbols. The employee has a legitimate   
interest in not appearing to promote what he considers to be a false  
 belief. And this interest should be well within the religious   
accommodation protections of Title VII.


Except, apparently, in the Eleventh Circuit.

On Mon, 20 Dec 2010 11:47:20 -0500
 Eric Rassbach erassb...@becketfund.org wrote:


I took Alan's example re re Confederate flags etc. to be raising   
the issue of hostile work environment discrimination claims. Of   
course for such a claim to be successful, a lone requirement that   
employees display something offensive would not be enough; you'd   
have to show some other pattern of discrimination on the basis of   
the protected class at issue. (Wrt the Confederate flag example, it  
 is certainly the case that a lot of businesses in the South  
display  Confederate battle flags and require their employees to do  
so;  though it is probably bars more than banks.)


I think a religious discrimination hostile work environment claim   
would be really hard to make out based on the display of one   
religion's symbol. Competing truth claims are a feature, not a bug,  
 of religious life, so it doesn't make sense to call one group's   
truth claims or the symbols representing those truth claims   
offensive or discriminatory per se.




From: religionlaw-boun...@lists.ucla.edu   
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene   
[vol...@law.ucla.edu]

Sent: Monday, December 20, 2010 10:33 AM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down   
 religioussymbols


  Alan:  Can you flesh out the discrimination theory  
more?  I take it that the claim is that requiring everyone to  
display something would constitute discrimination (not just failure  
to accommodate religious beliefs, or creation of an allegedly  
hostile environment), and that this would trigger a requirement of  
exemption even outside the context of religious discrimination,  
where such exemption is statutorily required – is that right?  It  
seems like an odd sort of discrimination claim, but I’d like to  
hear more about it.  (I take it that this would practically be of  
some more importance because some companies include in their  
corporate symbols items that some people may find offensive based  
on membership in various groups, whether the symbols are religious,  
allegedly racially offensive, and so on – consider the litigation  
over Sambo’s Restaurants, or the use of American Indian symbols, or  
other things that might well be a part of company logos, displayed  
on compa

 ny

vehicles, and so on.)

  By the way, some jurisdictions ban discrimination   
based on political affiliation, and of course government entities   
are generally barred by the First Amendment from 

Re: Federal regulators apparently force bank to take down religioussymbols

[Michael Masinter]

I do not want to sound like an apologist for the Eleventh Circuit; it  
is notoriously hostile to Title VII claims, particularly in opposition  
clause discharge cases.  But perhaps the court meant to differentiate  
between the no symbols policy as a policy and the employer's  
obligation to offer a reasonable accommodation to a particular  
employee.  Per the court a policy that bans religious symbols from a  
private workspace is not even arguably an unlawful employment  
practice, so even though  Title VII may require an individual   
exemption as a reasonable accommodation, the employee cannot plausibly  
claim the policy itself, as distinct from the failure to accommodate,  
is discriminatory.  On that reasoning, firing the employee for seeking  
an exemption would be unlawful retaliation; firing the employee for  
complaining, as did the employee, that the policy was forbidden by law  
would not be unlawful retaliation since no reasonable employee could  
believe that Title VII forbids such a policy.  Again, following the  
court's reasoning, since the employee never asked for an  
accommodation, the employer could not have been said to have fired her  
in retaliation for seeking a reasonable accommodation.


The Eleventh Circuit regularly rejects opposition clause claims on  
similarly stretched reasoning.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Douglas Laycock dlayc...@virginia.edu:


Thanks Michael.  I obviously have not read the opinion.

But if the employee has a claim for the employer's refusal to   
accomodate her, why doesn't she have a retaliation claim for   
opposing its refusal to accommodate her?


On Mon, 20 Dec 2010 13:34:16 -0500
 Michael Masinter masin...@nova.edu wrote:
The Eleventh Circuit's recent religious discrimination, religious
accommodation, and retaliation decision, Dixon v. The Hallmark
Services, http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf   
does  not foreclose a reasonable accommodation claim or a disparate  
  treatment claim by an employee forced to remove religious objects  
 from  her workspace; to the contrary, it held that the statement   
allegedly  made in conjunction with her discharge that she was too   
religious was  direct evidence of discriminatory intent, and that   
because management  was on notice of the conflict between her   
religious belief that she  must display religious objects in her   
workspace and its contrary  policy, it was obliged to consider a   
reasonable accommodation unless  granting one would cause undue   
hardship.  The court reversed summary  judgment for the employer on  
 both grounds, reasoning that the former  turned on the contested   
question of whether the statement that the  employee was too   
religious

  was
actually made, and the latter on the  case by case and as yet   
undeveloped factual specifics of what is a  reasonable   
accommodation or an undue hardship.


Dixon did hold that neither Title VII nor the Fair Housing Act   
forbids  a private employer from establishing a no religious   
symbols policy,  and that an objection to such a policy therefore   
could not support an  opposition clause claim even though its   
application to an individual  employee with contrary religiously   
motivated practices could support a  reasonable accommodation claim.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Douglas Laycock dlayc...@virginia.edu:

It doesn't make sense to call religious truth claims offensive 
(although that is common parlance), but it does make sense to say   
  that an employee who doesn't believe such a claim should not  
have  to   display the claim or its symbols. The employee has a   
legitimate   interest in not appearing to promote what he   
considers to be a false   belief. And this interest should be well  
 within the religious   accommodation protections of Title VII.


Except, apparently, in the Eleventh Circuit.

On Mon, 20 Dec 2010 11:47:20 -0500
 Eric Rassbach erassb...@becketfund.org wrote:


I took Alan's example re re Confederate flags etc. to be raising   
  the issue of hostile work environment discrimination claims. Of  
   course for such a claim to be successful, a lone requirement   
that   employees display something offensive would not be enough;  
 you'd   have to show some other pattern of discrimination on the  
 basis of   the protected class at issue. (Wrt the Confederate   
flag example, it   is certainly the case that a lot of businesses  
 in the South  display  Confederate battle flags and require

RE: No religious advertisements on municipal buses

[Michael Masinter]

The problematic case is Lehman v. City of Shaker Heights; if a city  
can ban political ads from a bus, presumably it can also ban religious  
ads, though it may matter whether the ads are inside or outside the  
bus (inside in Lehman).  But I would have joined the Lehman  
dissenters, and I am not confident that either the views of Justice  
Blackmun for the plurality or Justice Douglas would prevail today.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Corcos, Christine christine.cor...@law.lsu.edu:

Fort Worth.  See here.   
http://www.nytimes.com/2010/12/17/us/17brfs-atheist.html?partner=rssemc=rss


 I think it may be a reaction to part of a campaign (linked to a   
similar campaign in Canada) that is continuing the Good Without   
God campaign that was launched last year.  See here.
http://atheistbus.ca/


See the Atheist bus website here. http://www.atheistbus.org.uk/

Christine Corcos
Associate Professor of Law
Paul M. Hebert Law Center, Louisiana State University
Associate Professor, Women's and Gender Studies Program
LSU AM
324 Law Building
1 East Campus Drive
Baton Rouge LA 70803
tel: 225/578-8327
fax: 225/578-3677
home page: http://faculty.law.lsu.edu/ccorcos
Feminist Law Professors (http://feministlawprofessors.com/)
Law and Humanities Blog (http://lawlit.blogspot.com/)
Law and Magic Blog  (http://lpcprof.typepad.com/law_and_magic_blog/)
Media Law Blog (http://lawprofessors.typepad.com/media_law_prof_blog/)
email: christine.cor...@law.lsu.edu

-Original Message-
From: religionlaw-boun...@lists.ucla.edu   
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,  
 Alan

Sent: Monday, December 20, 2010 1:35 PM
To: Law  Religion issues for Law Academics
Subject: RE: No religious advertisements on municipal buses


I saw a newspaper story a few days ago (I'm sorry, but I don't   
recall all the details) reporting that a city prohibited all   
religious advertising on buses because people were annoyed with   
advertisements expressing a message by Atheists suggesting that   
there is no G-d. Wouldn't that regulation constitute   
unconstitutional viewpoint discrimination under Rosenberger and Good  
 News Club? I have serious problems with some of the Court's   
decisions that characterize discrimination against religious   
expressive activities as viewpoint discrimination. But if that's the  
 rule, it would certainly seem to apply in this case as well.


Alan Brownstein
UC Davis School of Law
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Re: Religious arbitration

[Michael Masinter]

The question seems as likely to arise when one party to the agreement  
seeks a judicial rather than an arbitral forum, the other party moves  
to compel arbitration, and the suing party opposes enforcement of the  
arbitration clause on the ground that the arbitral procedure, as  
structured, is unconscionable or otherwise unenforceable.  See the  
briefs and argument in ATT Mobility, LLC v. Concepcion, recently  
argued in SCOTUS for a discussion of whether courts may on  
unconscionability grounds refuse to enforce arbitration agreements.   
http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/


I think the more interesting question is whether a court must decline  
to enforce the agreement, since the answer would seem to have a great  
deal to do with the state action doctrine in its application to the  
equal protection rights of excluded witnesses.  Were the witness  
exclusion racially based, 42 USC 1981 (a) likely would make it  
judicially unenforceable without regard to the resolution of the state  
action question, but although race is broadly construed under section  
1981, its provisions have never been construed to reach sex  
discrimination.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Volokh, Eugene vol...@law.ucla.edu:

Any thoughts on whether, under current arbitration law,   
secular courts asked to enforce arbitration agreements may (or must)  
 set aside the arbitration if it took place under procedural rules   
that call for some degree of sex discrimination?  I have in mind   
some understandings of Orthodox Jewish rules that mandate the   
exclusion of the testimony of women in some (though not all)   
situations, and some understandings of Sharia rules that place a   
lower weight on the testimony of women.


Relatedly, may arbitral rulings be set aside on the grounds   
that the arbitrators were chosen from a pool in which women are   
deliberately not included?


I should say that I've in the past defended the propriety of  
 religious arbitration, see  
http://volokh.com/posts/1202446904.shtml;  and I myself would likely  
accept, on freedom of contract grounds,  agreed-to arbitrations that  
apply rules that are known to the  parties to be sex-discriminatory.  
 (I realize that religious group  social pressure may often push  
people into agreeing to arbitration  agreements -- and lots of other  
things -- that they might in some  sense not prefer, but I don't  
think that should be a basis for  generally rejecting such  
agreements.)  At the same time, I'm not at  all sure that  
arbitration law shares my freedom-of-contract  perspective when it  
comes to discriminatory rules.  So I'd love to  hear what others who  
know more than I do about this (and I'm not at  all an arbitration  
expert) think.


Eugene


-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, November 11, 2010 8:07 AM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

The quoted language may mean no more than that parties can't agree to
bound by religious law and then ask a court to determine (in   
violation of the

First Am.) what that religious law requires.

Mark Scarberry
Pepperdine



-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, November 11, 2010 7:31 AM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

Interesting quote re the Oklahoma ban and religious arbitration:

http://articles.latimes.com/2010/nov/10/opinion/la-oe-helfand-oklahoma-
20101110

Rex Duncan, a Republican state representative in Oklahoma and a sponsor
of the amendment, has explained that part of its purpose is to ban religious
forms of arbitration: Parties would come to the courts and say we want to
be bound by Islamic law and then ask the courts to enforce those
agreements. That is a backdoor way to get Sharia law into courts. There ...
have been some efforts, I believe, to explore bringing that to America, and
it's dangerous.



From: religionlaw-boun...@lists.ucla.edu [religionlaw-
boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Wednesday, November 10, 2010 2:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

(1)  Yes, there's a 1982 case finding no standing with   
regard to that

Arkansas law.

(2)  The Oklahoma law is indeed awful, not just because of the
prohibition on the use of Sharia law but chiefly because of the 

RE: Religious arbitration

[Michael Masinter]

I have not seen the question litigated, and because the arbitral  
parties are the only parties likely to raise the witness's rights, the  
absence of litigation is not surprising.  But racially based witness  
disabilities were a badge or incident of servitude, and therefore  
within the reach of congressional legislative power under the  
thirteenth amendment, and the textual expansion of section 1981 in the  
Civil Rights Act of 1991 to private conduct would seem to reach  
judicial enforcement of such agreements.


Although race is broadly construed under section 1981, the rationale  
for the broad construction is that historically, animus based  
discrimination arises from the discriminator's and society's treatment  
of ethnicity as equivalent to race.  Whether that rationale requires  
treatment of religiously based discrimination as ethnic and racial  
discrimination if its roots are not based on animus but rather on  
religious doctrine is also an interesting question; I don't think  
Shaare Tefila v. Cobb answers that question.


In any event, I think section 1981 (a) and (c) do make the argument  
for non-enforcement easier when the exclusion is race rather than sex  
based.



Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Volokh, Eugene vol...@law.ucla.edu:

	I'm not sure whether 42 USC 1981 would apply to arbitral tribunals'  
 decisions about which witnesses to consider; but if it does, I   
wonder how it would apply to Beth Dins.  As I understand it, certain  
 kinds of witnesses before those tribunals must be adult, male,   
Sabbath observing Jews.  That is an age, sex, and religion   
classification, but also, I take it, an ethnic classification:  A   
Sabbath-observing child of a Jewish mother would qualify, but a   
Sabbath-observing child of a non-Jewish mother would not qualify,   
unless he had converted in a way that the tribunal accepts -- and   
this is so even if the actual religious beliefs of the two people   
were identical.  And as I understand it race in 42 USC 1981  1982  
 has been interpreted (consistently with late 1800s practice) to   
include ethnicity.


Eugene

Michael Masinter writes:


The question seems as likely to arise when one party to the agreement
seeks a judicial rather than an arbitral forum, the other party moves
to compel arbitration, and the suing party opposes enforcement of the
arbitration clause on the ground that the arbitral procedure, as
structured, is unconscionable or otherwise unenforceable.  See the
briefs and argument in ATT Mobility, LLC v. Concepcion, recently
argued in SCOTUS for a discussion of whether courts may on
unconscionability grounds refuse to enforce arbitration agreements.
http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/

I think the more interesting question is whether a court must decline
to enforce the agreement, since the answer would seem to have a great
deal to do with the state action doctrine in its application to the
equal protection rights of excluded witnesses.  Were the witness
exclusion racially based, 42 USC 1981 (a) likely would make it
judicially unenforceable without regard to the resolution of the state
action question, but although race is broadly construed under section
1981, its provisions have never been construed to reach sex
discrimination.

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Re: TRO against Oklahoma no use of Sharia Law

[Michael Masinter]

For many agreements to arbitrate, the Federal Arbitration Act is the  
argument for enforcement; there is nothing in the FAA that would  
exempt agreements that provide for a religiously based arbitral forum.  
 For others, analogous state statutes are the argument for enforcement.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting hamilto...@aol.com:

What are the arguments for enforcing religious arbitration   
agreements or disputes when religions have their own courts?


Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Eric Rassbach erassb...@becketfund.org
Sender: religionlaw-boun...@lists.ucla.edu
Date: Thu, 11 Nov 2010 13:49:19
To: Law  Religion issues for Law Academicsreligionlaw@lists.ucla.edu
Reply-To: Law  Religion issues for Law Academics   
religionlaw@lists.ucla.edu

Subject: RE: TRO against Oklahoma no use of Sharia Law

Let's say that an arbitration clause says that the case shall be   
decided in accordance with Islamic law as determined by the Texas   
Islamic Court.   One party sues in Oklahoma state court. The   
defendant asks the court to stop the state court proceedings and   
enforce the arbitration clause.  The plaintiff says the arbitration   
clause is unenforceable because some substantive and procedural   
aspects of Islamic law as typically determined by the Texas Islamic   
Court are unconscionable/against public policy. Would the court have  
 to consider or look to Sharia to decide the enforceability   
question?


An analogy might be an adequate alternative review on a forum non   
conveniens motion; courts have had to consider, for example, whether  
 Saudi courts are adequate alternative fora given the lesser weight   
given to the testimony of women and non-Muslims.



From: religionlaw-boun...@lists.ucla.edu   
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene   
[vol...@law.ucla.edu]

Sent: Thursday, November 11, 2010 1:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

Eric Rassbach writes:


Wouldn't that depend on whether consider and look to mean something
broader than apply?


My sense is that one advantage of arbitration is that courts  
 generally need not consider or look to the underlying law.  As I   
understand it, that's what happens in intrachurch disputes, when   
courts defer to the decision of the authorized church tribunal --   
not a traditional arbitration, I realize, but close to it.



And if one party challenged enforcement of the arbitration clause as
unconscionable or involuntary based on the use of religious law, would
deciding that question require a court to consider religious law?


I take it that if the claim required deciding what religious  
 law should actually have been applied, the First Amendment would  
bar  a secular court from resolving the claim.  But do you mean that  
it  would have consider religious law to decide whether it actually   
called for (say) the application of sex discriminatory rules?  I   
would think that even there the court wouldn't actually consider the  
 law as such, but just hear testimony -- from instance, from the   
arbitral tribunal's judges, or from the parties -- about what   
procedures were actually followed by the tribunal.  Or am I missing   
something?




From: religionlaw-boun...@lists.ucla.edu [religionlaw-
boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Thursday, November 11, 2010 12:14 PM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

But would the amendment actually apply to judicial enforcement of
religious arbitrations -- or arbitrations under the law of foreign   
countries --

so long as the court itself was only applying secular American law and not
religious or foreign law?

Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
 Sent: Thursday, November 11, 2010 9:05 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: TRO against Oklahoma no use of Sharia Law

 In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to
 religious arbitration immediately before he says the quoted language:

 http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration-
 and-the-new-multiculturalism.html
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RE: N.J. public transit employee fired for blasphemy

[Michael Masinter]

In defense of Justice Breyer, I don't think he called into question  
first amendment doctrine as it might apply to Q'ran burning; the  
reported text of his remarks suggests only that he was speaking with  
the prudence of a Justice talking about a legal issue that might some  
day come before the Court.


“It will be answered over time in a series of cases which force people  
to think carefully.  That’s the virtue of cases,” Breyer told me. “And  
not just cases. Cases produce briefs, briefs produce thought.  
Arguments are made. The judges sit back and think. And most  
importantly, when they decide, they have to write an opinion, and that  
opinion has to be based on reason.  It isn’t a fake.”


That strikes me as a pretty accurate description of how the Court works.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Conkle, Daniel O. con...@indiana.edu:

In an interview with George Stephanopolous, Justice Breyer has   
suggested that burning the Koran conceivably might not be protected   
by the First Amendment at all.  According to Breyer, Holmes said it  
 doesn't mean you can shout 'fire' in a crowded theater . . . .
Well, what is it?  Why?  Because people will be trampled to death.
And what is the crowded theater today?  What is the being trampled   
to death? . . .  It will be answered over time in a series of cases   
which force people to think carefully.


http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html

Surely this cannot be unprotected speech, can it?  Wouldn't that   
amount to a global heckler's veto whenever speech triggers or   
threatens a sufficiently violent reaction?  And wouldn't such a   
doctrine effectively reward - and thus encourage - such violence or   
threats thereof?


Dan Conkle

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 Volokh,   
Eugene

Sent: Wednesday, September 15, 2010 8:06 PM
To: Law  Religion issues for Law Academics
Subject: N.J. public transit employee fired for blasphemy


The New York Daily News,   
http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html,   
reports:




[Derek Fenton, t]he protester who burned pages from the Koran   
outside a planned mosque near Ground Zero has been fired from   
NJTransit, sources and authorities said Tuesday




Mr. Fenton's public actions violated New Jersey Transit's code of   
ethics, an agency statement said.




NJ Transit concluded that Mr. Fenton violated his trust as a state   
employee and therefore [he] was dismissed. ...




Fenton was an assistant train-consist coordinator, sources said - a   
job that entails ensuring there are enough train cars positioned to   
be put into service




If Fenton was fired for burning the Koran while off-duty, his First   
Amendment rights probably were violated, Chris Dunn of the New York   
Civil Liberties Union said




Is this permissible under Pickering?  Should it be?



Eugene







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Circumcision, Religion and Custody in Oregon

[Michael MASINTER]

Apropos the ongoing discussion of the role religious beliefs should play
in custody disputes, the Oregon Supreme Court decided today that a 12 year
old boy should have some say in the custodial parent's decision to have
him circumcisd, though that say should occur within the context of the
noncustodial parent's motion for a change of custody.  The parents reared
their son in the Russian Orthodox faith, but at about the time of their
divorce, the father began to study Judaism and later converted.  As
custodial parent, the father elected to have the son circumcised claiming
that the boy wished to be circumcised because of his interest in
converting to Judaism; the mother objected and asserted that so did her
son; she sought to enjoin the circumcision and to obtain a change of
custody.  In response, the father, aided by amici, asserted both that the
son accepted the decision to be circumcised, and that in any event the
son's wishes were irrelevant, and that even conducting an evidentiary
hearing to determine the son's wishes would violate the free exercise
rights of the father to control as custodial parent the decision of
whether to circumcise his son.  The trial court temporarily enjoined the
circumcision, and the case made its way to the Oregon supreme court. The
relevant portion of the decision (minus footnotes) follows:

Although the parties and amici have presented extensive material regarding
circumcision, we do not need to decide in this case which side has
presented a more persuasive case regarding the medical risks or benefits
of male circumcision. We conclude that, although circumcision is an
invasive medical procedure that results in permanent physical alteration
of a body part and has attendant medical risks, the decision to have a
male child circumcised for medical or religious reasons is one that is
commonly and historically made by parents in the United States. We also
conclude that the decision to circumcise a male child is one that
generally falls within a custodial parent's authority, unfettered by a
noncustodial parent's concerns or beliefs -- medical, religious or
otherwise. Were mother's concerns or beliefs regarding circumcision all
that were asserted in the affidavits in this case, we would conclude that
mother did not carry her initial statutory burden to demonstrate a
sufficient change in circumstances demonstrating father's inability to
properly care for M.

However, in this case, mother has averred in her affidavit that M objects
to the circumcision.  In our view, at age 12, M's attitude regarding
circumcision, though not conclusive of the custody issue presented here,
is a fact necessary to the determination of whether mother has asserted a
colorable claim of a change of circumstances sufficient to warrant a
hearing concerning whether to change custody. That is so because forcing M
at age 12 to undergo the circumcision against his will could seriously
affect the relationship between M and father, and could have a pronounced
effect on father's capability to properly care for M. See Greisamer, 276
Or at 400 (illustrating proposition). Thus, if mother's assertions are
verified the trial court would be entitled to reconsider custody. As to
that inquiry, however, we think that no decision should be made without
some assessment of M's true state of mind. That conclusion dictates the
outcome here.

We remand the case to the trial court with instructions to resolve the
factual issue whether M agrees or objects to the circumcision. In order to
resolve that question, the trial court may choose to determine M's state
of mind utilizing means available to it under the relevant provisions of
ORS 107.425.  If the trial court finds that M agrees to be circumcised,
the court shall enter an order denying mother's motions. If, however, the
trial court finds that M opposes the circumcision, it must then determine
whether M's opposition to the circumcision will affect father's ability to
properly care for M. And, if necessary, the trial court then can determine
whether it is in M's best interests to retain the existing custody
arrangement, whether other conditions should be imposed on father's
continued custody of M, or change custody from father to mother.

Boldt v. Boldt, http://www.publications.ojd.state.or.us/S054714.htm


If the son wishes to proceed with the circumcision, the litigation should
quickly come to an end for lack of any basis to order a change of custody.
But suppose the trial court determines in an evidentiary hearing that the
son opposes circumcision.  How should the court determine whether it is in
the best interest of the child to order a change of custody?  Should it
matter whether the son wishes to remain within the Russian Orthodox faith
and to avoid a symbolic statement of Jewish religious faith, or simply
wishes to avoid the risks associated with elective surgery, or just wishes
to avoid what is reputed to be the substantial discomfort associated with
the procedure at his 

Re: InnerChange decision

[Michael MASINTER]

Here's a link to the InnerChange decision, Americans United v. Prison
Fellowship Ministries:

http://www.au.org/site/DocServer/Innerchange_opinion.pdf?docID=861

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel



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Re: Home Schooling and Real Covenants

[Michael MASINTER]

As I read Rick's argument, it has consequences that extend far beyond
RLUIPA and home schooling.  Treating restrictive covenants as zoning
regulations and their enforcement as state action subjects them to the
same first and fourteenth amendment limits that constrain local
governments in enacting positive law.  Many property owners associations
routinely enforce restrictive covenants against non-covenanting parties
that would, as positive law, violate the free speech provisions of the
first amendment.  Age restrictions prohibiting occupancy by children
arguably would violate both the equal protection clause and the right of
intimate association under the first amendment.  POAs would become subject
to the procedural requirements of the fourteenth amendment.  

I am sympathetic to Rick's argument; POAs regularly behave more like
authoritarian states than liberal democracies, but, save for Shelley, I
don't see any indication in state action law that supports it, and, as
Justice Scalia once wrote, [a]ny argument driven to reliance upon an
extension of that volatile case is obviously in serious trouble.  Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 282 n.14 (1993).

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Wed, 4 Jan 2006, Rick Duncan wrote:

 Steve: The difference between a typical contract case and the law of 
 covenants running with the land is that in the latter case the law provides 
 authority to enable A  B to restrict the liberty of C, D, and E (future 
 landowners who did not agree to the covenant).

   If A agrees with B not to use Blackacre as a home school, there is
 no major liberty issue when A breaches his agreement and B sues to
 enforce the restriction that A agreed to. But under the law of
 covenants, when A sells Blackacre to C, a non-covenanting party, the
 covenant runs with the land  and requires C to perform a promise
 that C never made.

   The law of covenants allows A  B to attach their covenant to land
 and enforce it against non-covenanting parties. Therefore, it is
 really a kind of zoning law in which the state delegates to the
 original covenanting parties the power to promulagte the zoning
 restrictions that will govern future non-covenanting andowners. This
 matters for purposes of RLUIPA, because I argue that the body of law
 (the law of covenants) that allows enforcement of covenants against
 non-covenanting parties is a land use regulation as defined in RLUIPA
 (and state action for purposes of the Constitution).

   Cheers, Rick Duncan
   
 
 Steven Jamar [EMAIL PROTECTED] wrote:
   Rick,
   
 
   Doesn't the same logic apply to contract law?  Contracts are enforceable 
 under law, like restrictive covenants, but are essentially private matters.  
 Some covenants are illegal (no blacks allowed, for example), and so are some 
 contracts (slavery, for example).  But this does not mean that they are the 
 same as legislation.
   
 
   Steve
   
 
   
 
 -- 
   Prof. Steven D. Jamar   vox:  202-806-8017
   Howard University School of Law fax:  202-806-8567
   2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
   Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
   
 
   The modern trouble is in a low capacity to believe in precepts which 
 restrict and restrain private interests and desires.
   
 
   Walter Lippmann
 
 
 
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   Rick Duncan 
 Welpton Professor of Law 
 University of Nebraska College of Law 
 Lincoln, NE 68583-0902

   
 When the Round Table is broken every man must follow either Galahad or 
 Mordred: middle things are gone. C.S.Lewis, Grand Miracle
 
 I will not be pushed, filed, stamped, indexed, briefed, debriefed, or 
 numbered. --The Prisoner
 
 
   
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Re: Property Law and Religious Liberty/Constituional Law

[Michael MASINTER]

The question Rick poses has been litigated; it routinely arose in the
context of age restrictions barring occupancy by children enforced against
grandparents whose grandchild moved in because of a family emergency,
Rocek v. Markowitz, 492 So.2d 460 (Fla. App. 1986) or parents who
unexpectedly became pregnant and bore a child, Pomerantz v. Woodlands
Section 8 Ass'n Inc., 479 So.2d 794 (Fla. App. 1985), rev. denied, 491 So.
2d 280 (Fla. 1986).  Congress reacted by amending the Fair Housing Act in
1988 to prohibit familial status discrimination save in subdivisions that
qualify as housing for older persons (HFOP). See Massaro v. Mainlands
Section 1  2 Civic Ass'n, Inc., 3 F.3d 1472 (1th Cir. 1993), but in 1995
weakened the statutory protection for families by easing the requirements
that enabled associations to qualify for the HFOP exemption.  See
generally 42 U.S.C. 3607 (b)(2).  

Many POAs have abandoned enforceable age restrictions even though they
qualify for the HFOP exemption, but their motives have had little to do
with family integrity or religious freedom.  Rather, they have been driven
to abandon age restrictions by market forces -- older residents have died,
and their adult children have discovered that the property is hard to sell
and that the exclusion from the pool of potential buyers of young families
looking for starter homes reduces the market value of age restricted homes
by more than $25,000 in south Florida.

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Wed, 4 Jan 2006, Rick Duncan wrote:

 Here is a fun religious liberty/con law issue from my Property course 
 syllabus. We read Moore v. City of East Cleveland, the SDP case in which the 
 Court struck down a restrictive zoning ordinance that defined single family 
 residential use in a way which prohibited a grandmother from living with her 
 two grandsons (from separate branches of her family tree). You all know the 
 case.

   Well, suppose that instead of a restrictive zoning ordinance (which,
 of course, would be unconstitutional under Moore), Mrs. Moore was sued
 by a HOA to enforce a running covenant restricting her use of her own
 home to single family residential purposes only (with single family
 defined very restrictively as in Moore). Suppose futher that she took
 her two grandsons into her home following the deaths of their
 respective parents, and that she sincerely believes that her religious
 faith requires her to raise her otherwise homeless grandchildren.

   Assume that, under the state law of covenants running with the land,
 the state courts would enforce the covenant and order Mrs. Moore to
 evict one of her grandsons as an illegal occupant.

   Is there sufficient state action to trigger SDP under the 14th
 Amendment? Does Shelley apply to all cases involving restrictive
 covenants (including single faimly restrictions as above and
 speech-restricting covenants such as those prohibiting large C-band
 satellite dishes and outside antennas).

   Does RLUIPA protect her right to obey her religious conscience
 against the substantial burden imposed upon her free exercise by the
 law of running covenants under RLUIPA's definition of land use
 regulations.

   I swear, the Property class could be taught in large part as a
 religious liberty/con law class!

   Rick Duncan 

   
 
  
 
 
   Rick Duncan 
 Welpton Professor of Law 
 University of Nebraska College of Law 
 Lincoln, NE 68583-0902

   
 When the Round Table is broken every man must follow either Galahad or 
 Mordred: middle things are gone. C.S.Lewis, Grand Miracle
 
 I will not be pushed, filed, stamped, indexed, briefed, debriefed, or 
 numbered. --The Prisoner
 
 
   
 -
 Yahoo! Photos
  Ring in the New Year with Photo Calendars. Add photos, events, holidays, 
 whatever.


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Re: Dover Intelligent-Design Case

[Michael MASINTER]

Wouldn't individual board members have at least a plausible claim to
legislative immunity?  See Bogan v. Scott-Harris, 523 U.S. 44 (1998).

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 20 Dec 2005, Lupu wrote:

 In light of the judge's appraisal of the behavior of the Board 
 members, do members of the list think that punitive damages might 
 have been awarded against particular Board members had they 
 been sued individually?  Would their ordinary immunity from 
 damages have been lost as a result of what now looks like a wilful, 
 bad faith violation of the Constitution?  Would an award of punitive 
 damages against them have been an appropriate remedy?  
 (Perhaps plaintiffs' counsel feared that such an award would 
 generate some sympathy for the individual defendants, and 
 backlash against the plaintiffs.  Obtaining money, of course, was not 
 the point of the suit -- but such a remedy would certainly deter the 
 next school board that headed in this direction.)
 
 
 Chip Lupu
 
 On 20 Dec 2005 at 15:56, Ed Brayton wrote:
 
  
  Marc Stern wrote: 
  Were there any interveners? Might Discovery Institute intervene
  for purposes of appeal? .During the fight over equal access, the
  Supreme Court held in Bender v. Williamsport ASD,475 US 534 that a
  single school board member did not have standing to appeal a
  decision to allow religious clubs .A fortiori former members
  should lack standing, unless ,perhaps they were sued in an
  individual capacity and held for damages.
  
  The Foundation for Thought and Ethics attempted to intervene but was
  denied. Discovery Institute did not attempt to intervene. This suit,
  as far as I know, was only against the school district as a whole, not
  against the individual members of the school board. There are no
  damages awarded and none asked for. So I can't imagine there is anyone
  with standing that could intervene at this point. The school board has
  said that they will not file an appeal of the case.
  
  Ed Brayton
  
 
 
 
 Ira C. (Chip) Lupu
 F. Elwood  Eleanor Davis Professor of Law 
 The George Washington University Law School 
 2000 H St., NW
 Washington D.C 20052
 
 (202) 994-7053
 
 [EMAIL PROTECTED]
 [EMAIL PROTECTED]
 
 
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RE: Zionist-Occupied Government

[Michael MASINTER]

 On Tue, 13 Dec 2005, Larry Darby wrote:
 
  [snip]
  To understand the fallacy of calling someone anti-semitic, it's helpful
  to understand that semitic refers to a group of African-Asian
  languages, not Jews or any religion. Arabic, Ethiopic, Hebrew are just 3
  of several semitic languages.  Semantic terrorists who throw out the
  hate-based word anti-semitic are simply engaging in an offensive
  maneuver to stifle discussion.
  [snip]
 

And our zionist occupied government is actually run by a cabal of Utah
slot canyon hikers?


Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel






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Re: RE:creationsim redux

[Michael MASINTER]

Brad's hypothesis would be more convincing if the school's science books
also included explanations that various religions posit(ed) a geocentric
universe, reject germs and other physical explanations as a cause of
disease, and offer supernatural explanations for weather phenomena.  The
reality is quite different; the only scientific theory ordinarily singled
out is evolution.

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Mon, 28 Nov 2005, Brad M Pardee wrote:

 Marc,
 I think it is a victory (albeit a very small one) for ID supporters 
 because it means a textbook publisher had the nerve to acknowledge that 
 many people do not believe in evolution.  And Americans United is 
 undoubtedly unhappy that not every publisher is drinking the koolaid.
 
 Marty,
 Isn't it possible that this is somewhat less Machiavellian than you are 
 describing?  It's not about providing students with a fuller 
 understanding of the diversity of religious beliefs or undermining 
 science.  It's as Marc described it: simply an acknowledgment that not 
 everybody believes in evolution, and that those who don't believe in 
 evolution, demographically speaking, are largely viewing the matter from a 
 religious perspective.
 
 Marc wrote:
 Supporters of ID are claiming victory; and Americans United is complaining 
 that the wall of separation is falling. I feel stupid because I see 
 nothing of ID in this description, merely factual descriptions of peoples? 
 beliefs. What am I missing that the activists see?
 
 Marty replied:
 Marc:  Might it have something to do with the fact that the statement 
 appears in a biology text, rather than in a comparative religions text, 
 and that therefore the foreseeable -- and, dare I surmise, intended -- 
 effect of the statement is not to provide the students with a fuller 
 understanding of the diversity of religious beliefs, but instead to call 
 into question, and to undermine, the actual science information that 
 appears on pages 1-387 and 389f?



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Re: Voters Oust Dover School Board

[Michael MASINTER]

On Wed, 9 Nov 2005 [EMAIL PROTECTED] wrote:

 
 I am not searching for conspiracies behind large oaks on dimly lit streets,  
 but what impact would the immediate decision of the board, on their own  
 judgments about intelligent design vs evolution, to eliminate ID instruction  
 have 
 on the case, in particular, on the award of attorneys fees?  What if  the 
 practice and policy changes and it is not caused by the catalyst of the  
 litigation, but on a change of the political persuasions of the board?
  
 Jim Henderson
 Senior Counsel
 ACLJ
 

Mootness drives the fee question, not the reason for mootness, since fees
are available only to a prevailing party.  Buckhannon Board and Care Home,
Inc. v. W. Va. Dep't of Health and Human Servicees, 532 U.S. 598 (2001).  
Buckhannon forbids a fee award to a plaintiff absent a judgment (or
perhaps some court order short of a judgment not at issue here) altering
the legal relationship between the parties since absent such an order, the
plaintiff cannot be said to have prevailed.  Thus, Buckhannon held that a
dismmissal for mootness precluded a fee award even if the plaintiffs'
claim was the catalyst for the repeal of the challenged legislative
mandate.  I read Buckhannon to hold that if the school board were to moot
the case before judgment, it would escape fee exposure irrespective of
its reasons for mooting the case.

Whether the school board *could* moot the case is the harder question; as
Ann Althouse already noted, the plaintiffs would likely respond that the
voluntary cessation of illegal conduct generally is insufficient to moot a
claim for injunctive relief.  U.S. v. W. T. Grant Co. 345 U.S. 629 (1953).
To be sure, as in Buckhannon, governmental defendants can moot a claim for
injunctive relief despite the voluntary cessation limitation by repealing
an offending statute or regulation since its repeal eliminates any risk of
the recurrence of its mandated illegal conduct.  The problem for the Dover
School Board is that its challenged conduct is an exercise of
discretionary authority that it remains free to reassert at any time; the
election did not alter its statutory or regulatory authority to reimpose
elements of ID as part of the curriculum.

In short, I don't think the School Board can moot the case.  And like you,
I see no reason to think the posture of its newly elected members is
conspiratorial, or that their refusal to act promptly to try to moot the
case evinces a sham attempt to maintain a case and controversy for the
benefit of plaintiffs' counsel.  In any event, were the goal of the board
to ensure a fee award, it would need do no more than enter into a consent
judgment.


Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel





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Re: Censoring Narnia

[Michael MASINTER]

As far as I can tell, Americans United wisely has not threatened to sue
anybody.  Here's a link to their press release: http://tinyurl.com/b5lnd

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 8 Nov 2005, Rick Duncan wrote:

 Here is an excerpt from an ADF Press Release on an interesting case 
 concerning an attempt by Americans United to censor a public school reading 
 contest concerning The Lion, the Witch, and the Wardrobe. Any thoughts?  
 --Rick Duncan ADF to stand by any schools threatened for participating in 
 Florida governor's Narnia contestMonday, November 07, 2005, 10:45 AM (MST)
 ADF Media Relations | 480-444-0020
 
 
 
 
 -
  [input]  Comments
   [input]  
 
 
 SCOTTSDALE, Ariz. - Attorneys with the Alliance Defense Fund say they will 
 offer free legal representation to any Florida schools threatened with 
 lawsuits for participating in the governor's reading contest involving The 
 Lion, the Witch, and the Wardrobe by C.S. Lewis. 
 
 On Oct. 20, Americans United for Separation of Church and State issued a 
 press release condemning Gov. Jeb Bush's Just Read, Florida! campaign, 
 which this year encourages public school students to read the Lewis novel in 
 conjunction with the release of the Disney movie based on the book Dec. 9.  
 AUSCS claims this year's campaign is designed to promote a religious story. 
 
 The governor's campaign is clearly designed to promote reading in 
 conjunction with a much-anticipated film; it is not designed to promote 
 religion, said ADF Senior Counsel Gary McCaleb.  ADF will defend any school 
 district in the nation that gets sued by AUSCS, the ACLU, or any other group 
 for having students read The Lion, the Witch, and the Wardrobe, as long as 
 the school allows students to opt out of reading it if they or their parents 
 don't want to. 
 
 According to the 2001 executive order establishing the Just Read, Florida! 
 program, the campaign is a comprehensive, coordinated reading initiative 
 aimed at helping every student become a successful, independent reader.  
 Nonetheless, AUSCS called it an offense to the First Amendment. 
 
 
 
 Douglas Laycock [EMAIL PROTECTED] wrote:
 
 Of course no document of Vatican II talks specifically about
 private religious speech in public schools. And if there were such a
 discussion, it would not be on the basis that some religion is better
 than no religion.
 
 The documents of Vatican II do defend freedom of conscience for
 all, which necessarily means that evangelical Protestant teaching will
 be protected by law even if it tends to undermine Catholicism. And the
 reason given in those documents sounds in the dignity of the human
 person, not in institutional or theological advantage. The documents of
 Vatican II also recognize the possibility of salvation outside the
 church, and even outside Christianity, makig Catholic teaching far more
 tolerant than evangelical Protestant teaching.
 
 Michael, you seem to think that the persistence of serious
 theological disagreements show that the conflict of the Reformation has
 not burned itself out. I agree that theological disagreements persist,
 but they no longer motivate much serious conflict. For more than 200
 years, from Henry VII to Culloden Moor in 1746, Englishman
 intermittently killed each other in serious numbers over the
 Protestant-Catholic divide. Nineteenth-century Americans occasional
 killed each other in street violence, and occasionally destroyed
 churches, over the Protestant-Catholic divide. In the 1920s, Oregon
 banned private schools as a way of banning Catholic schools, and several
 other states considered similar legislation. That's the kind of
 conflict that has burned itself out.
 
 After Vatican II took away so many Protestant talking points,
 and after the popularity of the Kennedys, old-style anti-Catholicism
 faded away and became disreputable. Al Smith was hurt as a Presidential
 candidate by his Catholocism; Kennedy was hurt some but seems to have
 been helped more. Kerry was not hurt by being Catholic; he was hurt by
 not being Catholic enough. The current theological disagreements are
 nothing like the old style conflict. Contemporary anti-Catholicism is
 rooted not in Protestantism, but in the secular left, principally
 organized around issues of sexual morality, and secondarily on derision
 of any belief in the supernatural.
 
 It may be that reduced conflict is a form of assimilation, and
 bad for Catholic doctrine in the long run. That's a different point
 from whether social conflict actually persists.
 
 Finally, let me say that I agree that persistence and resistance
 pretty much describes a lot of 

RE: Two kinds of purpose inquiries

[Michael MASINTER]

Do Title VII and the religion clauses (the latter of course applied only
to governmental employers) permit an employer to fire an employee for
engaging in conduct that offends his religious beliefs?  For an extreme
example that answers the question no, see Venters v. City of Delphi, 123
F.3d 956 (7th Cir. 1997). Recounting the evidence that Ives (the
supervisor) fired Venters (the employee) based on Ives' religious
objections to Venters' lifestyle, the court wrote:

Matters came to a head on February 14, 1994, when Ives called Venters
into his office and asked if she had attended church services the previous
Sunday.  When Venters admitted that she had not, Ives told her that she
had a choice to follow God's way or Satan's way, and that she would not
continue working for Ives if she chose the latter.  Ives then began
talking about Venters' sinful life and the disgust he felt toward her
because of her obstinate refusal to be saved, indicating to Venters that
he believed she was repeating a cycle of abuse she had experienced as a
child with her family.  Ives told Venters that after having observed her
behavior, he became convinced that she had had sexual relations with
family members and perhaps even animals, and that she was sacrificing
animals in Satan's name.  Ives also suggested to Venters that suicide
would have been preferable to her continuing a life of sin, and that he
would not allow the evil spirit that had taken [Venters'] soul to
continue to live in the police department.

The court describes the role of the religion clauses (and later Title
VII similarly):

It is readily apparent from this rough sketch of the two clauses that
coercing a person to conform her beliefs *or her conduct* to a particular
set of religious tenets can run afoul of both the establishment as well as
the free exercise clauses.

The court focused throughout its opinion on Ives' religiously motivated
objections to Venters' conduct; with sufficient evidence from which to
conclude that Ives used conduct as a proxy for religion faith, firing
Venters because of her conduct was firing her because of her failure to
conform her conduct to his religious beliefs; the court held that would
violate both Title VII and the religion clauses.  


Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 23 Aug 2005, A.E. Brownstein wrote:

 
 I don't want to belabor the point since no one else is joining this thread 
 --- but let me take one more shot at explaining why I don't get Eugene's 
 point -- despite his very good efforts to help me understand his position.
 Then I'll give him the last word and end the dialogue.
 
 Eugene writes:
 
 I think it's important to distinguish, as the subject line
 suggests, two kinds of purpose inquiries.  The primary purpose inquiry
 under Epperson/Aguillard/etc. asks whether the primary goal of the
 legislature was motivated by a desire to further religion. (emphasis 
 added) The
 intentional discrimination inquiry under the Equal Protection Clause,
 the Free Exercise Clause, and so on asks whether the government actor
 intended (whether primarily or not) to treat a particular group worse.
 
 Why is the primary purpose analysis under the Establishment Clause 
 different than the purpose analysis
 under Equal Protection or Free Exercise? What's different about the purpose 
 of furthering religion
 and the purpose of treating a particular group worse? Is the relevant 
 difference between furthering and treating worse
 or is it the difference between a group, say Blacks or Jews, and a 
 belief system, say religion, Christianity or Judaism.
 
 I don't think the distinction between furthering and treating worse is 
 controlling. First, the EPC applies to racial favoritism as well as racial
 mistreatment. If a neutral law is enacted because it disproportionately 
 benefits Whites, it is as unconstitutional as a law that is enacted because 
 it disproportionately
 burdens Blacks.
 
 Second, I think the religion clauses should apply with equal force whether 
 the school board is vetoing material solely because it is inconsistent with 
 Christianity (furthering), for example, or is vetoing material
 solely because it is consistent with Christianity (treating worse). (I'm 
 not talking about religious doctrine itself, which would be evaluated under 
 an effects test, or a content test, but rather material that is neutral but 
 resonates with or against religious beliefs -- and therefore would be often 
 evaluated under a purpose analysis.) Eugene, are you saying that it would 
 be OK to consider purpose if the Board was vetoing material solely because 
 it was consistent with Judaism  -- treating worse (e.g. the school says 
 teachers can't 

RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Michael MASINTER]

Rick's question below proceeds from a false premise; public school
classrooms are not the public square.  None of the posts have suggested
that ID should be banned from the public square; the first amendment
pretty obviously would forbid that, and on that point I suspect we would
all agree.

I see no evidence that anyone is seeking to suppress ID.  What I have seen
is a concerted effort to debunk ID's claim to be science.  Were ID
presented simply as a matter of religious faith, it would engender no
controversy, but then no plausible argument could be made for including it
as part of a science curriculum.  The controversy over ID isn't about
religious faith; it's about the introduction of poorly disguised religious
doctrine into a science class.  The place to teach the controversy is in a
course that explores the role of the religion clauses in our system of
government, not in a science class.


Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Fri, 19 Aug 2005, Rick Duncan wrote:

 Mark and Sandy are just making my 1A point for me. They ridicule and
 disparage ID in an attempt to marginalize it and keep it out of the
 public square. Let me put the question this way for Sandy and Mark: Do
 they really believe it would violate the EC for a public school to
 assign, say, Behe's Darwin's Black Box for a high school science
 class? Is this really the same thing as wanting to teach malevolent
 design or the Protocols of the Elders of Zion in public school?  
 It just makes me all the more certain that the attempt to suppress ID
 is merely a product of cultural power. Phil Johnson calls scientific
 naturalism the new established religious philosophy of America and
 goes on to say that like the old [established] philosophy, the new
 one is tolerant only up to a point, specifically the point where its
 own right to rule the public square is threatened. He continues: The
 establishment of a particular religious philosophy does not imply that
 competing philosophies are outlawed, but rather that they are
 relegated to a marginal position in private life. The marginalization
 is most effective when formal; government actions are supplemented by
 a variety of intimadating acts by nongovernmental institutions such as
 the news media.
 
  I think Phil is right. His book, Reason in the Balance, is still my
 must read for college students thinking about law school.
  
 Cheers, Rick
 
 
 
 
 
 Rick Duncan 
 Welpton Professor of Law 
 University of Nebraska College of Law 
 Lincoln, NE 68583-0902
 
 When the Round Table is broken every man must follow either Galahad or 
 Mordred: middle things are gone. C.S.Lewis, Grand Miracle
 
 I will not be pushed, filed, stamped, indexed, briefed, debriefed, or 
 numbered.  --The Prisoner
   
 -
  Start your day with Yahoo! - make it your home page 




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Re: Findings on Hostility at Smithsonian Noted in NRO Article

[Michael MASINTER]

Ed Brayton replied while I was away from my office with a link to the
quite thorough critique written by Alan Gishlick, Nick Matzke, and Wesley
R. Elsberry; I would have posted the same link, which should more than
suffice.  For a less technical but no less devastating critique of ID's
claim to be science, see Jerry Coyne, The Case Against Intelligent Design,
The Faith That Dare Not Speak Its Name, The New Republic (August 22, 2005)
http://tnr.com/docprint.mhtml?i=20050822s=coyne082205 (subscription
required).

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Thu, 18 Aug 2005, Steve Monsma wrote:

 
 I have exercised great will power in holding my tongue (or, more accurately, 
 my
 keyboard) in not responding to the earlier posts in regard to ID.  But,
 Michael, your post finally overcame my will power.  Unless I am missing some
 posts and links to which they pointed, I need to question your claim that
 Meyer's aritcle is filled with distortions, takes statements out of context,
 etc., etc.  The only link you offer is to a spoof of ID that in itself grossly
 misrepresents ID.  I have not read Meyer's article and I am not a biologist so
 can offer no judgment on it.  But I have read an op ed essay he had in the NY
 Times years ago and have used in often in some of my classes.  It was a
 thoughtful, balanced essay, so I would be surprised if he is now engaging in
 the unethical behavior Michael seems to assume he is.
 
 Stephen Monsma
 Henry Institute,
 Calvin College
 
  [EMAIL PROTECTED] 08/18/05 10:16 AM 
 Hostility to bad science is not hostility to religious faith; the free
 exercise clause and Title VII only protect against religiously motivated
 hostile environments.  Whether the hostility reported in the NR piece was
 motivated by bad science or religious bias is far less clear to me than to
 Klinghoffer; it is Klinghoffer who uses loaded phraseology like the
 writer had learned how to deal with religious Christians, and OSC
 ultimately concluded only that it lacked jurisdiction.
 
 Scientists who make claims that lack evidentiary support, that distort the
 work of other scientists, and that take statements of other scientists out
 of context to misrepresent their views generally do not engender respect
 from their colleagues.  Mr. Meyer has every right to believe in
 intelligent design or intelligent falling,
 http://www.onion.com/news/index.php?issue=4133n=2 or, for that matter,
 perpetual motion machines, but he has no right to have his beliefs treated
 as responsible scientific claims or to be shielded from contempt for
 having claimed otherwise.
 
 Michael R. Masinter   3305 College Avenue
 Professor of Law  Fort Lauderdale, FL 33314
 Nova Southeastern University  (954) 262-6151 (voice)
 Shepard Broad Law Center  (954) 262-3835 (fax)
 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel
 
 On Thu, 18 Aug 2005 [EMAIL PROTECTED] wrote:
 
  David Klinghoffer reports on findings of the OSC in the flap over  
  discollegial reactions to publication of a intelligent design article in one
 the  
  Institution's journals.  See 
  _http://www.nationalreview.com/comment/klinghoffer200508160826.asp_ 
  (http://www.nationalreview.com/comment/klinghoffer200508160826.asp) .
   
  Jim Henderson
  Senior Counsel
  ACLJ
  
 
 
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Re: religiously-motivated political strife

[Michael MASINTER]

Don't overlook the anti-Catholic Know Nothing Party riots, including the
Philadelphia Bible Riot of 1843:

http://www.pbs.org/kcet/publicschool/photo_gallery/photo2.html

Two sources approach the same history from different perspectives, but do
not much disagree on what happened:

http://www.newadvent.org/cathen/08677a.htm
http://www.atheists.org/publicschools/street.html


Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel



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Re: Wait, there's more: Leading ID think tank calls Dover evolution policy misguided, calls for it to be withdrawn

[Michael MASINTER]

How does evolution appear to violate the laws of thermodynamics?   And if
it does, why haven't physicists figured it out?

Michael R. Masinter Visiting Professor of Law
On Leave From   University of Miami Law School
Nova Southeastern University(305) 284-3870 (voice)
Shepard Broad Law Center(305) 284-6619 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 14 Dec 2004, Alan Leigh Armstrong wrote:

 
 My training in physics was that a theory is an explanation that fits 
 the facts. For example, the theoretical physicist comes up with a 
 theory. The experimentalist runs the experiment and gives the results 
 to the theoretical physicist who then modifies the theory.
 
 There are many holes in the theory of evolution. Evolution appears to 
 violate the laws of thermodynamics. There are also many things that 
 have been presented as evidence of evolution that have been proven 
 false.
 
 The problems with evolution and the major schools of thought within 
 evolution should be taught to the students. If DI has a different 
 theory that fits the facts, it should also be taught.
 
 I tend toward the 6 days of creation with the clock counting the time 
 being at the center of the big bang. The gravitational effect slowing 
 down the clock so that we may still be in the seventh day.
 
 Alan
 
 Law Office of Alan Leigh Armstrong
 Serving the Family  Small Business Since 1984
 18652 Florida St., Suite 225
 Huntington Beach CA 92648-6006
 714-375-1147   Fax 714 375 1149
 [EMAIL PROTECTED]
 [EMAIL PROTECTED]
 www.alanarmstrong.com
 KE6LLN
 On Dec 14, 2004, at 3:05 PM, Steven Jamar wrote:
 
  Sandy, I agree that there is value in multiplicity in the three 
  examples you mention, including critiques of evolution.  But there is 
  a difference between evolution (an established fact) and disagreements 
  about the mechanism by which it works.  Requiring teaching that 
  evolution is false is not an acceptable alternative.  But allowing or 
  even requiring critiques makes a great deal of sense.  Even if it is 
  creationism light.
 
  Knowledge is not all a matter of social power.  But what constitutes 
  truth at any given time certainly is affected by social power.
 
  Steve
 
  On Tuesday, December 14, 2004, at 05:16 PM, Sanford Levinson wrote:
 
  I just listened to an NPR segment quoting one of the supporters of ID 
  saying that it is important that students be presented with 
  alternatives to Darwinism.  That is, this is an appeal to the 
  importance of a multiplicity of points of view.  Is there a 
  principled way of deciding when that is a desiderata?  Consider, 
  e.g., the failure of American public schools to present in any 
  serious way the propositions that a) we have quite a dysfunctional 
  Constitution (a proposition that I personally believe) and b) there 
  are legitimate reasons for various and sundry persons around the 
  globe to hate us (a proposition that I also believe, but not for all 
  of the various and sundry persons who in fact hate us, obviously).  I 
  take it that the persons who believe in multiplicity of views with 
  regard to ID are unlikely to accept its importance with regard to my 
  examples.  But, conversely, I presume that persons who agree with my 
  examples are likely to be hostile to presenting ID as even a 
  possibility.  Is Foucault right, that what counts as knowledge (or 
  disputable theory) is all a matter of social power?  (This is not a 
  rhetorical question.)
   
  sandy
  -- 
  Prof. Steven D. Jamar   vox:  202-806-8017
  Howard University School of Law fax:  202-806-8567
  2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
  Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
 
  It is by education I learn to do by choice, what other men do by the 
  constraint of fear.
 
  Aristotle
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Fl Voucher Program Unconstitutional

[Michael MASINTER]

So says Florida's First District Court of Appeal, construing the Florida
Constitution's no aid provision in Article One, Section Three, which
provides: No revenue of the state . . . shall ever be taken from the
public treasury directly or indirectly in aid . . . of any sectarian
institution.  Rejecting arguments that the state constitution imposed no
greater restriction on state spending than did the establishment clause,
the court relied on Locke v. Davey to reject the argument that, so
construed, it would violate the Free Exercise clause.  The court certified
the question to the Florida Supreme Court.

http://www.1dca.org/opinion/opinions2004/8-16-04/02-3160.pdf

Michael R. Masinter Visiting Professor of Law
On Leave From   University of Miami Law School
Nova Southeastern University(305) 284-3870 (voice)
Shepard Broad Law Center(305) 284-6619 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel



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Re: New religious speech at school controversy

[Michael MASINTER]

But see Holloman v. Harland, 2004 WL 1178465 (11th Cir. May 28, 2004)
denying qualified immunity to a teacher who disciplined a student for
silently raising a fist during the pledge of allegiance and concluding
that the allegation, if proved, would establish a violation of the first
amendment.

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Fri, 4 Jun 2004 [EMAIL PROTECTED] wrote:

 Well, if the situation had arisen here in the heart of Dixie (not Alabama but 
 south Georgia), it likely the Eleventh Circuit would uphold the suspension 
 relying on its decisions in a pair of Confederate flag cases. In Denno v. School 
 Bd. of Volusia County  and  Scott v. School Bd. of Alachua County, it found 
 that potential offensiveness is sufficient for school officials to restrict 
 students' speech (restrict as in disciplinary suspension).  
 
 Frances R. A. Paterson, J.D., Ed.D.
 Associate Professor (school law)
 Department of Educational Leadership
 Valdosta State University
 Valdosta, GA 31698
 


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11th Circuit Holds RLUIPA unconstitutional

[Michael MASINTER]

http://www.ca11.uscourts.gov/opinions/ops/200313858.pdf

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel



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Re: 11th Circuit Holds RLUIPA . . . *constitutional*

[Michael MASINTER]

Whoops; I forgot the first rule of proofreading (Proofread before
sending)  Sorry.

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Wed, 21 Apr 2004, Marty Lederman wrote:

 Uh, that should be constitutional.  And it's a section 2(b)(1) case, too -- probably 
 the most difficult subsection to justify under section 5.
 
 
 - Original Message - 
 From: Michael MASINTER [EMAIL PROTECTED]
 To: Law  Religion issues for Law Academics [EMAIL PROTECTED]
 Sent: Wednesday, April 21, 2004 5:12 PM
 Subject: 
 
 
  http://www.ca11.uscourts.gov/opinions/ops/200313858.pdf
  
  Michael R. Masinter 3305 College Avenue
  Nova Southeastern University Fort Lauderdale, Fl. 33314
  Shepard Broad Law Center (954) 262-6151
  [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel
  
  
  
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Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780

[Michael MASINTER]

I don't think the ACLU argument in Hurley is either bizarre or the product
of interest group politics.  A good amicus brief should assist the Court
irrespective of whether it supports a party. Though the ACLU, like other
organizations, often agrees with one party or another, and signals that
agreement by filing an amicus in support of one or the other party, from
time to time it will file an amicus in support of neither party that seeks
to elaborate sound constitutional doctrine; in essence, if not in form,
its client is the bill of rights.

Individual litigants sometimes do not make every argument a court ought to
consider in a particular case; when that case involves only private
interests, the consequences rightly fall on the ligitant who fails to
advance an argument.  But when the case involves public interests, and
particularly when it is before a court whose judgment is likely to
influence if not control a broad range of cases, relying exclusively on
individual litigants to present arguments risks warping constitutional
doctrine.

Courts review judgments, not reasoning; if the judgment of the New Jersey
court had been correct on the record before it, the Court was obliged to
affirm even if the reasoning of the New Jersey Supreme Court was entirely
flawed.  To the extent that the New Jersey judgment might have been
correct if the record evidence of state action were sufficient to make the
parade government speech, then there is nothing unprincipled in the
suggestion that the Court, or a lower court, ought to consider that
possibility.

The ACLU makes occasional missteps, but I don't see evidence of that in
its position in Hurley.

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 20 Apr 2004 [EMAIL PROTECTED] wrote:

 I wasn't privy to the internal politics of the ACLU on this one, but it's 
 pretty clear that the organization was reluctant to take the anti-gay rights 
 point of view, despite the clear countervailing First Amendment interest of the 
 parade organizers. By the time the case got to the Supreme Court, the gay 
 rights group that was suing the parade organizers had dropped the argument, 
 soundly rejected by the trial court, that the parade was anything but a private 
 parade with no government sponsorship.  For the ACLU to take the position that a 
 remand was in order at that point was just bizarre, and could only be explained 
 by either an incredible lapse in legal judgment, or, more likely, as an out 
 that allowed the ACLU to avoid the bad p.r. from its liberal constituencies 
 that would come from being on the wrong side of a gay rights case while  
 still not betraying its First Amendment principles.  If Mr. Spitzer has a more 
 coherent explanation of why the ACLU was unwilling to file a brief supporting the 
 parade organizers, I'd love to hear it.
 
 In a message dated 4/20/2004 9:01:44 AM Eastern Standard Time, 
 [EMAIL PROTECTED] writes:
 I am pleased to stand corrected.
 Marc Stern
 - Original Message -
 From: [EMAIL PROTECTED]
 To: [EMAIL PROTECTED]
 Sent: Monday, April 19, 2004 6:02 PM
 Subject: Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780
 
 
 
  In a message dated 4/19/04 4:58:49 PM, [EMAIL PROTECTED] writes:
 
  This is especially so since in the Boston parade cases,if
  memory serves,the ACLU did not support the right of parade organizers to
  exclude  marchers expressing a gay rights point of view.
 
  The ACLU's amicus brief strongly supported the right of private parade
  organizers to exclude marchers expressing a gay rights (or any other)
 point of view.
   I've pasted below an excerpt from the Summary of Argument section of the
  ACLU's brief.
  Art Spitzer
  ACLU
  Washington DC
 
 
 Professor David E. Bernstein
 George Mason University School of Law
 http://mason.gmu.edu/~dbernste 
 blog: http://volokh.com/index.htm?bloggers=DavidB
 ***
 My latest book, You Can't Say That!
 The Growing Threat to Civil Liberties
 from Antidiscrimination Laws, has just
 been published
 ***
 



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Re: FYI An Interesting Case

[Michael MASINTER]

I think it's pretty clear that ATT is free to implement a
progressive antidiscrimination policy that encompasses the protection of
its gay and lesbian employees over the objections of its religious
employees, and that it need not accommodate them by exempting them from
that policy. See Peterson v. Hewlett Packard Co., 358 F.3d 599 (9th Cir.
2004):

The only other alternative acceptable to Peterson--taking down
all the [diversity] posters--would also have inflicted undue hardship upon
Hewlett-Packard because it would have infringed upon the company's right
to promote diversity and encourage tolerance and good will among its
workforce. The Supreme Court has acknowledged that the skills needed in
today's increasingly global marketplace can only be developed through
exposure to widely diverse people, cultures, ideas, and viewpoints.
Grutter v. Bollinger, 539 U.S. 306, , 123 S.Ct. 2325, 2340, 156
L.Ed.2d 304 (2003) (citing amici briefs submitted by leading American
corporations including Hewlett-Packard). These values and good business
practices are appropriately promoted by Hewlett-Packard's workplace
diversity program. To require Hewlett-Packard to exclude homosexuals from
its voluntarily-adopted program would create undue hardship for the
company. Cf. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855
(1996) (Colorado state constitutional amendment prohibiting state or local
government action to protect persons based on their homosexual status,
conduct, or orientation violates Equal Protection Clause). Because only
two possible accommodations were acceptable to Peterson and implementing
either would have imposed undue hardship upon Hewlett-Packard, we conclude
that the company carried its burden of showing that no reasonable
accommodation was possible, and we therefore reject Peterson's failure-to-
accommodate claim.

That leaves only the so called oath as a violation of Title VII.  
Without a decision to read, it is hard to evaluate exactly what the
employer required of its employees.  Title VII forbids a nonexempt
employer from conditioning a job on fealty to or abandonment of a
religious belief (absent proof of a BFOQ), but I can't tell from any of
the posts whether that is what happened, or whether the company clumsily
sought assurances that its employees would behave consistently with the
company policy on tolerance of homosexuals.  It seems to me that it is
entitled to demand the latter, even in the form of an affirmation, without
violating Title VII.

Like David, I think private employers have no business trying to
regulate the thoughts of their employees; I only would add that in
reaching that conclusion, I necessarily but willingly commit libertarian
heresy by enlisting state power to regulate the private employer's
behavior.


Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Thu, 8 Apr 2004 [EMAIL PROTECTED] wrote:

 I'm ambivalent about this case.  On the one hand, I think that ATT should be 
 able to enforce a progressive antidiscrimination policy if it so desires, 
 without special accommodations for religious employees. The same conservatives 
 who are against requiring or even allowing private companies to engage in 
 special treatment for minority employees see to alway want the government to 
 require them to engage in special treatment for religious employees in the form of 
 reasonable accommodations. We live in a pluralistic society, and if 
 religious employees don't like ATT's employment policies, there are many, many 
 other 
 places they can work.
 
 On the other hand, the whole notion of requiring employees to swear loyalty 
 oaths to antidiscrimination policies, to require not just nondiscriminatory 
 actions but beliefs, seems to have originated with state action.  Even if ATT's 
 specific policies weren't mandated by the government, they can be seen as the 
 outgrowth of years of lawsuits and EEOC actions trying to require employers to 
 only promote managers  who believe in certain policies.  As I wrote in a r
 elated context in You Can't Say That! The Growing Threat to Civil Liberties 
 from Antidiscrimination Laws (http://mason.gmu.edu/~dbernste/book):
 As a condition of settlement of antidiscrimination lawsuits, the EEOC and 
 private litigants are increasingly demanding that defendant corporations agree to 
 have managers strongly consider supervisors' vigilance in implementing 
 antiharassment policies when evaluating those employees' performance.  Even 
 companies that have not been sued are adopting this policy to attempt to avoid 
 future 
 lawsuits.  One common criterion used to judge an employee's zealousness in 
 enforcing antiharassment policies is whether the employee has expressed his 
 personal support for the 

Re: FYI An Interesting Case

[Michael MASINTER]

Title VII already obliges an employer to protect employees from religious
discrimination, and more particularly religiously motivated harassment to
the same extent that it must protect employees from sexual harassment --
if the harassment is by a supervisor and causes a tangible employment
effect, the employer is strictly liable; if the harassment is by a
supervisor, causes no tangible employment effect, but is sufficiently
pervasive or severe to create a hostile work environment, the employer is
strictly liable unless it can prove that the victim unreasonably failed to
complain to the employer, and if the harassment is by coworkers and is
sufficiently severe or pervasive to create a hostile work environment, the
employer is liable only if it knew or should have known of the harassment
and failed to take prompt remedial action.  For a representative religious
harassment case, see Venters v. City of Delphi, 123 F.3d 956 (7th Cir.
1997). 

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Thu, 8 Apr 2004, Alan Leigh Armstrong wrote:

 
  I think it's pretty clear that ATT is free to implement a
  progressive antidiscrimination policy that encompasses the 
  protection of
  its gay and lesbian employees over the objections of its religious
  employees, and that it need not accommodate them by exempting them from
  that policy. See Peterson v. Hewlett Packard Co., 358 F.3d 599 (9th 
  Cir.
  2004):
 
 Under the same rationale, couldn't BUU, Inc. implement an 
 anti-discrimination policy that protects the religious employees over 
 the objections of gay and lesbian employees?
 
 Alan
 
 Law Office of Alan Leigh Armstrong
 Serving the Family  Small Business Since 1984
 18652 Florida St., Suite 225
 Huntington Beach CA 92648-6006
 714-375-1147   Fax 714 375 1149
 [EMAIL PROTECTED]
 [EMAIL PROTECTED]
 www.alanarmstrong.com
 KE6LLN
 On Apr 8, 2004, at 10:47 AM, Michael MASINTER wrote:
 
  
  The only other alternative acceptable to Peterson--taking down
  all the [diversity] posters--would also have inflicted undue hardship 
  upon
  Hewlett-Packard because it would have infringed upon the company's 
  right
  to promote diversity and encourage tolerance and good will among its
  workforce. The Supreme Court has acknowledged that the skills needed 
  in
  today's increasingly global marketplace can only be developed through
  exposure to widely diverse people, cultures, ideas, and viewpoints.
  Grutter v. Bollinger, 539 U.S. 306, , 123 S.Ct. 2325, 2340, 156
  L.Ed.2d 304 (2003) (citing amici briefs submitted by leading American
  corporations including Hewlett-Packard). These values and good business
  practices are appropriately promoted by Hewlett-Packard's workplace
  diversity program. To require Hewlett-Packard to exclude homosexuals 
  from
  its voluntarily-adopted program would create undue hardship for the
  company. Cf. Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 
  855
  (1996) (Colorado state constitutional amendment prohibiting state or 
  local
  government action to protect persons based on their homosexual status,
  conduct, or orientation violates Equal Protection Clause). Because only
  two possible accommodations were acceptable to Peterson and 
  implementing
  either would have imposed undue hardship upon Hewlett-Packard, we 
  conclude
  that the company carried its burden of showing that no reasonable
  accommodation was possible, and we therefore reject Peterson's 
  failure-to-
  accommodate claim.
 
  That leaves only the so called oath as a violation of Title VII.
  Without a decision to read, it is hard to evaluate exactly what the
  employer required of its employees.  Title VII forbids a nonexempt
  employer from conditioning a job on fealty to or abandonment of a
  religious belief (absent proof of a BFOQ), but I can't tell from any of
  the posts whether that is what happened, or whether the company 
  clumsily
  sought assurances that its employees would behave consistently with the
  company policy on tolerance of homosexuals.  It seems to me that it is
  entitled to demand the latter, even in the form of an affirmation, 
  without
  violating Title VII.
 
  Like David, I think private employers have no business trying to
  regulate the thoughts of their employees; I only would add that in
  reaching that conclusion, I necessarily but willingly commit 
  libertarian
  heresy by enlisting state power to regulate the private employer's
  behavior.
 
 
  Michael R. Masinter 3305 College Avenue
  Nova Southeastern UniversityFort Lauderdale, Fl. 33314
  Shepard Broad Law Center(954) 262-6151
  [EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel
 
  On Thu, 8 Apr 2004 [EMAIL PROTECTED

Re: California Contraceptive Decision

[Michael MASINTER]

Are there prescription contraceptives for men?  If the only prescription
contraceptives currently on the market are prescribed for use exclusively
by women, then why couldn't a legislature reasonably conclude that
excluding prescription contraception from coverage under an employer
provided health care plan is sufficiently likely to be a form of sex
discrimination as to require a prophylactic rule?  That seems less of a
stretch than concluding that congress enacted the FMLA to overcome
workplace sex discrimination, and was therefore free to override the
eleventh amendment immunities of states.

Michael R. Masinter 3305 College Avenue
Nova Southeastern UniversityFort Lauderdale, Fl. 33314
Shepard Broad Law Center(954) 262-6151
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Mon, 1 Mar 2004, Stuart BUCK wrote:

 An 80-page decision from the California Supreme Court today, upholding the 
 California law requiring most employers to cover prescription contraceptives 
 in their health insurance plans:
 
 http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF
 
 Interestingly, while the court applies Smith as to the U.S. Constitution, it 
 applies Sherbert as to the free exercise claim under the California 
 constitution.  See pp. 37-44.  Nonetheless, it finds that the contraceptive 
 law satisfies strict scrutiny on the theory that the legislature was acting 
 to remedy discrimination against women.  (The court quickly and 
 unconvincingly brushes aside the appellants' argument that it doesn't 
 provide contraceptive or sterilization coverage to males either.)
 
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