RE: Cert. granted in Snyder v. Phelps.
I share Eugene's hope that the Court does not deform current doctrine.
Although I am not at all confident that it will do so, the Court
could reverse the fourth circuit on narrow grounds. The Epic included
what were alleged to be provably false statements of fact ("Albert and
Julie . . . taught Matthew . . .to divorce, and to commit adultery.").
Writing narrowly, the Court could disagree with the panel's
conclusion that those false statements of fact were obvious rhetorical
hyperbole, and hold that they therefore lack any constitutional
protection.
Whether particular false statements of fact are sufficient to support
a defamation claim (the district court held they were not) is a
different question from whether they are constitutionally protected
speech. Accordingly the Court could hold consistent with current
doctrine that the state is free to provide tort remedies for injurious
false statements of fact, and that whether it chooses to characterize
the remedy it provides as defamation, IIED, or intrusion into
seclusion is of no moment since the speech is constitutionally
unprotected.
Having established that the judgment rests in part on constitutionally
unprotected speech, the Court could then turn to jury instruction 21,
agree with the panel that the giving of that instruction was
reversible error, noting that it fails to distinguish between
permissible (false statements) and impermissible (outrageously
offensive statements) grounds for liability and perhaps that it
delegates to a jury determinations of matters reserved to the court,
and that therefore the giving of that instruction requires a new trial
focused on the alleged false statements of fact.
I would prefer to see the Court affirm the panel, but given that there
is no obvious circuit conflict to resolve, it's tempting to speculate
that it took the case to reverse. But there are a range of ways to
reverse, and, Citizens United notwithstanding, perhaps the Court will
choose to write narrowly.
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" :
Well, the premise of the constitutionality of libel law -- whether
under an actual malice standard, a negligence standard, or a
(possibly permissible) strict liability standard -- is that false
statements of fact lack constitutional value; the mens rea standard
is there chiefly to make sure that libel law doesn't unduly deter
true statements of fact.
Here, we don't have false statements of fact. That the emotional
distress tort requires recklessness or purpose as to another matter
(the tendency of the speech to create severe emotional distress)
doesn't validate it by analogy to libel law -- libel law asks not
about mental state in the abstract, but about the mental state as to
the *false statement of fact*.
Again, if one wants to argue for an exception for speech, whether
opinion, true statement, or false statement, that inflicts severe
emotional distress -- or just does so near a funeral, or just does
so with regard to a recently dead person, or what have you -- that's
fine, and the question would then be what the exact boundaries of
the exception are, and how the exception can be defended. But libel
law does not offer a helpful analogy.
Eugene
-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, March 10, 2010 12:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.
I think Eugene has oversimplified defamation law here. We hold
some tortfeasors
to an actual malice standard while others are held to more lax
standard. So while
false statements of fact are a constant minimum element of proof
(because they
lack value AND are very likely to cause harm to reputation) the
tort liability is
determined according to the role played by the speaker and the role
played by the
recipient of the message. And in private person victim cases a more onerous
standard than actual malice can be applied to the speaker.
In these cases the tort must be intentional. So you have already
limited the
impact if the tort considerably. I think when one adds that
funerals and death are
instances where the victim is vulnerable and deserving of
protection the argument
for liability in these cases is strong
Marci
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Re: Jonathan Turley op-ed about US acceptance of limitation on free expression for negative religious stereotyping
Does current first amendment protection under Tinker extend to children who wear T-shirts to a public school that proclaim Islam is of the Devil in the absence of material disruption to discipline under a school board policy that empowers the school to ban offensive speech? How about followup T-shirts that proclaim I.I.O.T.D.? In each case the T-shirt's front expressed a positive message about Christianity; the suspensions were based on the statement on the back. http://www.msnbc.msn.com/id/32565118/ns/us_news-education/ http://www.alligator.org/news/local/article_e24c85fc-d078-52b6-a21e-72b95cb2f0bb.html 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" : http://blogs.usatoday.com/oped/2009/10/column-just-say-no-to-blasphemy-laws-.html This appears to be a disastrous decision by an Obama administration that very much should know better. Mark Scarberry Pepperdine cross posted to conlawprof ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: EEOC says Catholic College Discriminated by Removing ContraceptiveCoverage from Health Insurance
A more appropriate analogy would ask whether the provision of a content neutral literature benefit, one I could use to purchase a bible, Darwin's Origin, or a Foxtrot collection, would trigger a violation of either of the religion clauses. I'm pretty certain a public university that provided that benefit would not violate the first amendment, especially post Zelman. 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 Brad Pardee : From: "Michael R. Masinter" The individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment, and who therefore may have trouble convincing a judge that a finding of sex discrimination is substantially burdens the free exercise of religion, and that Title VII's does not further the government's compelling interest in the eradication of workplace sex discrimination as defined by the PDA in the least restrictive manner. Using this argument, one would have to say that, back when I worked for the University of Nebraska, when I bought a Bible with the proceeds of my employer paid salary, that would be the same as if the University of Nebraska had an employer paid "religious literature beneift" that paid for the Bible. Can we really not distinguish between private purchasing decisions an employee makes and the purchasing decisions that the employer is involved in through the establishment of a beneifts program set up by the employer to fund those purchases? Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
There are many hurdles to a successful RFRA defense to otherwise unlawful sex discrimination (making the contested assumption that denial of coverage is sex discrimination). Congress has already provided both the 702(a) exemption and the bona fide occupational qualification defense for employers; the two generally provide greater protection for religious employers than does RFRA. Though RFRA applies to all government action, including government action under Title VII, most Title VII claims are brought by a charging party after receipt of a right to sue letter, not by EEOC. The Seventh Circuit has held that RFRA does not apply to Title VII claims brought by private litigants. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006). A panel of the Second Circuit held otherwise in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), but a later Second Circuit panel questioned the soundness of that decision. Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). Unless EEOC sues Belmont Abbey, RFRA may not apply for lack of government action. Assuming RFRA applies, Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion for reasons I already noted. The individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment, and who therefore may have trouble convincing a judge that a finding of sex discrimination is substantially burdens the free exercise of religion, and that Title VII's does not further the government's compelling interest in the eradication of workplace sex discrimination as defined by the PDA in the least restrictive manner. That's not to say RFRA the scope of RFRA's application to Title VII is clear; perhaps RFRA does apply to private claims of discrimination, a finding of sex discrimination would substantially burden the free exercise of religion, and the government's compelling interest in eradicating workplace sex discrimination as defined to include pregnancy could be carried out in a less restrictive manner. If so, and if denying coverage is sex discrimination, then I agree RFRA will matter. 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 "Vance R. Koven" : I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter wrote: Belmont Abbey might have a better chance with its RFRA argument if it were a religious institution entitled by section 702(a) of Title VII to practice religious discrimination, and if as such an employer, it conditioned employment on foregoing the use of birth control as an expression of religious faith or obedience. But as I understand what I have read of the EEOC proceedings, Belmont Abbey does not limit employment to those whom it defines as the faithful, does not require of its employees that they refrain from using birth control, and may not even be entitled to claim the 702(a) exemption authorizing religious discrimination. It already pays employees money with which they are free to purchase (or not purchase) birth control; it offers them prescription drug coverage as an additional employee benefit, which, like money, they are free to use to purchase (or not purchase) birth control. If Belmont Abbey is forbidden from practicing religious discrimination, then it's hard to make the argument that under RFRA it is entitled to practice sex discrimination. I would think its best argument
Re: EEOC says Catholic College Discriminated by Removing Contraceptive
Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. 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 Perry Dane : This point might have been made by someone else already, but I'll venture ahead anyway: I'm not sure we need to accept the premise that Belmont Abbey is guilty of sex discrimination here. The EEOC determination found that "By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives" "By denying coverage, men are not affected, only women." The obvious analogy implicit here is to the sort of pregnancy discrimination at issue in Gilbert, which Congress has (rightly) determined to be a form of sex discrimination. But this case is different. Belmont Abbey can credibly argue that its policy would be to refuse to pay for any contraceptive, regardless of whether the contraceptive is being taken by men or women. That this policy affects men and women is not the product of biology, as it was in Gilbert, but of independent policy decisions made by other institutions to treat women's contraceptives, but not men's contraceptives, as prescription items. To put it another way: When General Electric argued in the Gilbert case that it was discriminating against pregnancy, not against women, that would rightly strike most observers as a laughable, or at least unduly formalistic, proposition. But when Belmont Abbey argues that it is discriminating against contraception, not against women, that seems to me to be neither laughable nor formalistic. Consider this analogy: Imagine a pacifist landlord who refuses to rent to "combat soldiers." Is that a form of discrimination against men merely because another institution (the U.S. Congress) has made an independent policy decision not to allow women to be combat soldiers? (For purposes of the hypo, put aside the fact that many women do de facto serve in combat.) Or imagine a landlord right next to a single-sex college who refuses to rent to "college students." Is that a form of sex discrimination merely because the college has, of its own accord and as its right, chosen to be single-sex? Now, these situations might, I guess, set up some sort of "disparate impact" claim, but that seems to me to require a more complicated analysis; in Bemont Abbey's case, it might leave more room for the operation of religious conscience or RFRA. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Belmont Abbey might have a better chance with its RFRA argument if it were a religious institution entitled by section 702(a) of Title VII to practice religious discrimination, and if as such an employer, it conditioned employment on foregoing the use of birth control as an expression of religious faith or obedience. But as I understand what I have read of the EEOC proceedings, Belmont Abbey does not limit employment to those whom it defines as the faithful, does not require of its employees that they refrain from using birth control, and may not even be entitled to claim the 702(a) exemption authorizing religious discrimination. It already pays employees money with which they are free to purchase (or not purchase) birth control; it offers them prescription drug coverage as an additional employee benefit, which, like money, they are free to use to purchase (or not purchase) birth control. If Belmont Abbey is forbidden from practicing religious discrimination, then it's hard to make the argument that under RFRA it is entitled to practice sex discrimination. I would think its best argument is the question which has divided the few courts that have considered it, and that is the question of whether denying coverage for prescription birth control pills is 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 "Vance R. Koven" : So for purposes of the law-n-religion analysis, the issue is whether Belmont Abbey can claim, either under the constitution or RFRA (this being a Federal matter), that it is entitled to a religious exception. Sticking with RFRA to avoid the complexities of post-Smith analysis, the government would have to contend that the prevention of sex discrimination is a compelling interest (which for sake of discussion I'm willing to concede). Belmont Abbey would then have to respond that since PDA requires coverage for contraception *irrespective* of actual sex discrimination as normally understood, the failure to provide such coverage on a nondiscriminatory basis (that is, because men are equally prevented from obtaining reproductive-health benefits--putting aside whether it could "offset" the women-only benefit denial with a *different* men-only denial--that would conflict with Catholic doctrine) makes the PDA proscription merely malum prohibitum and not malum in se, which parries the "compelling interest" alleged? If that's so, then the government could go back and attempt a standard sex-discrimination analysis of the matter without the benefit of the PDA presumption. Vance On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter wrote: The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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 "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
If Belmont Abbey stops providing health care coverage to its employees, it will be because it chose to stop providing it, not because it was forced to do so. If the administrators of the college believe that it is preferable to leave all employees uninsured to prevent the possibility that one of them might purchase birth control pills subsidized by a health insurance plan, then it really doesn't matter whether its motivation is rooted in religious doctrine or the belief that birth control disrupts evolution; either way the administrators make a deliberate choice. That such a choice is one an employer can make and impose on its employees is part of what sets health care in the United States apart from most of the developed world. I leave to a more appropriate thread the discussion of whether that's a bug or a feature. 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 Will Esser : My understanding is that college administration discovered (after a change in insurance providers) that the new insurance policy covered abortion, sterilization, and contraception. Since all three are contrary to Catholic teaching, the college administration immediately requested its private health insurer to eliminate coverage for these items. I'm told that North Carolina law has a specific state exemption which permits a religious employer to provide health insurance which does not cover these items, so as a matter of NC state law, the college was on firm ground. In fact, but for the change in health insurance providers, I do not believe these items would have ever been covered to begin with. (And of course, there is no prohibition on private individuals paying for excluded services on their own; it's just a question of whether a religious employer should be required to pay for services or items which it believes are morally objectionable). At the end of the day, it really creates an interesting dynamic because there is no federal or state law which requires Belmont Abbey to offer priavte health insurance coverage. If there is a holding that Belmont Abbey cannot offer health insurance coverage without covering abortion, sterilization and contraception, then Belmont Abbey will simply be forced to stop offering health insurance coverage for its employees (a result which would more adversely affect staff members, than the faculty who brought the challenge in the first place). Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. Plato (428-345 B.C.) --- On Sat, 8/15/09, Michael R. Masinter wrote: From: Michael R. Masinter Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: religionlaw@lists.ucla.edu Date: Saturday, August 15, 2009, 5:51 PM The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) Quoting "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not,
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. 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 "Vance R. Koven" : Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the court's reasoning, but rather the outcome of that reasoning. While I think that a court that would reason as I hypothesized one might would be wrong in doing so in light of the dialogue between the Court and Congress(see boumediene), I fear I have seen such toturing of laws often enough to not consider such error to beyond the realm of possibility. I guess I don't quite see how a statute based claim with EP overtones would impact a constitutional liberty-based privacy claim, though at times we do cross those sorts of boundaries. Stev Sent from Steve Jamar's iPhone On Aug 15, 2009, at 1:57 PM, Paul Finkelman wrote: ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
When Congress enacted the Pregnancy Discrimination Act to overrule General Electric Corp. v. Gilbert, the Court wrote: "When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision." Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 678 (1983). So I don't think the Court's earlier reasoning on what is or is not sex discrimination is helpful. The ultimate question of whether the denial of coverage for prescription birth control drugs is discrimination because of sex prohibited by Title VII after enactment of the PDA is interesting, but whatever the answer is, it would seem unlikely to rest on the holding of GE v. Gilbert. 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) --- On Thu, 8/13/09, Steven Jamar wrote: From: Steven Jamar Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: "Law & Religion issues for Law Academics" Date: Thursday, August 13, 2009, 7:43 AM I haven't really kept up with decisions and actions in this area, but the Supreme Court held that refusal of pregnancy benefits was not sex discrimination and so it would seem that it would easily enough use the same (il)logic to rule that there was no sex discrimination here -- just run-of-the-mill coverage limitations. Besides, women get the same coverage as men -- they can buy condoms too -- which, one would expect, would be within any deductible amount anyway. I'll be interested to see what those more versed in this area say based on current law. Steve On Aug 13, 2009, at 7:23 AM, Will Esser wrote: I am interested in Listserv participants reactions to the following story (which I have copied below from the following site: http://www.gastongazette..com/news/college-36646-discriminated-eeoc.html ) The U.S. Equal Employment Opportunity Commission determined that Belmont Abbey College discriminated against women and retaliated against faculty members who filed a charge of employment discrimination, according to EEOC documents. An EEOC determination letter states that the college discriminated based on gender by denying contraceptive benefits in the college?s health coverage plan, according to an EEOC determination. Contraception, abortion and voluntary sterilization came off Belmont Abbey College?s faculty health care policy in December 2007 after a faculty member discovered that coverage, according to an e-mail Belmont Abbey College President Bill Thierfelder sent to school staff, students, alumni and friends of the college. ?By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives,? wrote Reuben Daniels Jr., the EEOC Charlotte District Office Director in the determination. ?By denying coverage, men are not affected, only women.? The EEOC also determined that the college retaliated against eight faculty members who filed charges with the EEOC by identifying them by name in a letter to faculty and staff. ?It is the Commission?s position that the identity of an individual who has filed a charge should be protected with confidentiality during the Commission?s investigation,? Daniels wrote. ?By disclosing Charging Party?s name, a chilling effect was created on Respondent?s campus whereby other faculty and staff members would be reluctant to file a charge of employment discrimination for fear of disclosure.? The EEOC asked both the faculty and the college to work with it to reach a resolution. If the college declines to discuss the settlement or an acceptable settlement is not reached, the director would inform the two sides and advise them of the court enforcement alternatives available. _ There are a couple of things that I find fascinating about this story: (a) First, although not explicitly mentioned in this particular story, the EEOC reversed its former finding that there was no discrimination by the college.. (You can find mention of this reversal in other stories on the web including http://www.campusreportonline.net/main/articles.php?id=3235) I am not an employment expert, but it is my understanding that reversals of position by the EEOC are exceptionally rare (and presumably take place as a result of a "directive from on high"). Do any Listserv members have insight on this point? (b) Although the college modified its health insurance coverage to exclude abortion, sterilization
RE: Francis Collins and Acceptable Criticisms
I'm delighted to learn that we can count on the Becket Fund to assist the ACLU in our recurring litigation against public schools that use science classes to teach religious doctrine. 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) Chair, ACLUFL legal panel Quoting Eric Rassbach : Isn't one of the lines to draw whether the idea is scientifically testable or not? We can make scientific observations now about whether the world rests upon turtles, but we cannot observe the birth of Christ. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: NY York Nurse sues after being forced to participate in late term abortion
I think the first question the lawsuit raises is whether 42 U.S.C. § 300a7(c) creates an implied private cause of action. The Supreme Court has not exactly been receptive in recent years to recognizing implied causes of actions arising from spending clause statutes. 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 Will Esser : NEW YORK, July 23, 2009 (LifeSiteNews.com) -? Alliance Defense Fund attorneys filed a lawsuit Tuesday against Mount Sinai Hospital on behalf of a Catholic nurse who was forced to participate in a late-term abortion under the threat of disciplinary action, including possible termination and loss of her license. The hospital has known of her religious objections to abortion since 2004. Hospital administrators told the nurse that the scheduled abortion was an ?emergency,? though evidence shows otherwise, and insisted moments before the procedure that she assist doctors despite her repeated objections to the procedure, which dismembered a preborn child in the 22nd week of gestation. By federal law, hospitals that receive federal funds cannot force employees to participate in abortion procedures under any circumstances. ?Pro-life nurses shouldn?t be forced to assist in abortions against their beliefs,? said ADF Legal Counsel Matt Bowman. ?Requiring a devout, Catholic nurse to participate in a late-term abortion in order to remain employed is illegal, unethical, and violates her rights of conscience. Federal law requires that employers who receive funding from tax dollars must not compel employees to violate their sincerely held religious beliefs, but this nurse?s objections fell on deaf ears.? ?Chasing away workers from the health care field is disastrous health care policy,? said Bowman. ?An individual?s conscience is likely what brought them to the health care field. Denying or coercing their conscience will likely drive them right out.? The rest of the story can be found at: http://www.lifesitenews.com/ldn/2009/jul/09072301.html This certainly raises the present question of what form of conscientous objection provisions (if any) will end up in an approved health care reform package. Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. Plato (428-345 B.C.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Ave Maria Law School invokes ministerial exception in wrongful termination suit
I agree with Eugene that the first amendment limits a state's power to impose tort liability for engaging in protected speech, and that those limits extend to liability for tortious interference, but I have difficulty conceiving of how those limits could even plausibly apply to Safranek's claim for tortious interference. I appreciate and concur in the quibble; I just can't make it fit the particulars of this case. 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" : I largely agree with Michael's point, but want to offer a small quibble: I would think that the right of expressive association, and for that matter of free speech, might sometimes preempt the tort of interference with a contractual relationship -- for instance, if a group pickets to urge some organization to take some action even if the action involves breaching the organization's contracts. See, e.g., Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 857-58 (10th Cir. 1999) (citing Hustler v. Falwell to reject a "reading of state [interference with contract] tort law ... [under which] the protection afforded to an expression of opinion under the First Amendment might well depend on a trier of fact's determination of whether the individual who had published the article was motivated by a legitimate desire to express his or her view or by a desire to interfere with a contract"). Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter Sent: Wednesday, July 01, 2009 5:49 AM To: Law & Religion issues for Law Academics; Rick Duncan Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit Why would the assumed right of expressive association preclude liability for breach of contract, for fraud, or for tortious interference with a contractual relationship? To be sure Ave Maria might regret having chosen to grant tenure to its faculty, but having done so, why would a right of expressive association permit it to ignore the contractual and tort duties arising from the contract it freely entered? Without conceding the right as applied to the school, why would its presumed existence affect any of the claims against either the school or the individual defendants? 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 Duncan : > Even if the ministerial exception doesn't apply, why wouldn't the > right of expressive association apply to a school's right to exclude > teachers who are part of its expressive mission? Surely, Ave Maria > is at least as much of an expressive association as are the BSA. No? > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit
Why would the assumed right of expressive association preclude liability for breach of contract, for fraud, or for tortious interference with a contractual relationship? To be sure Ave Maria might regret having chosen to grant tenure to its faculty, but having done so, why would a right of expressive association permit it to ignore the contractual and tort duties arising from the contract it freely entered? Without conceding the right as applied to the school, why would its presumed existence affect any of the claims against either the school or the individual defendants? 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 Duncan : Even if the ministerial exception doesn't apply, why wouldn't the right of expressive association apply to a school's right to exclude teachers who are part of its expressive mission? Surely, Ave Maria is at least as much of an expressive association as are the BSA. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Summum
I don't agree than the no endorsement rule is a structural rule rather than a liberty protecting rule. Justice O'Connor elaborated a liberty interest that lies behind the no endorsement rule; it is the interest of each citizen in being an equal member of the polity without regard to religious faith. A government that endorses one faith over another, or faith over no faith, or (however improbably) atheism over all faith divides its citizens into insiders and outsiders based on religious faith; it makes of the outsiders a kind of second class citizen. Though the government may do many things that reduce the status of some citizens vis a vis others, the EC forbids it from doing so based on religion. One can contest the constitutional legitimacy of the liberty interest Justice O'Connor identified, (Justice Kennedy and Justice Scalia have both done so), but I think her opinions treat the no endorsement rule as liberty protecting, and at one time her view enjoyed the support of several justices. Whether it survives is, of course, a matter still to be seen. 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) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School mmasin...@law.miami.edu 1311 Miller Drive Coral Gables, FL 33146 Quoting Rick Duncan : > I appreciate Alan's many good points about the EC. Of course, we all > discuss all of these points when we cover the EC in our classes. > > My post about Alito's opinion in Summam--in which he describes the > government's ability to choose its own message and its own > viewpoints as essential to the conduct of government--and then says > oh, but religious speech by government is different, raises a > different issue which I think also deserves discussion in the > classroom. > > Certainly, religious equality is important, but so is cultural > equality and political equality. > > Imagine two passive displays in a public school--one is a nativity > scene recognizing the fact that many in the community are > celebrating Christmas, and the other is a gay pride display which > says "support gay equality and stop homophobia." > > Both of these displays are challenged by students who find them > offensive--the nativity display by student A who is offended by > the schools "endorsement of religion" and the gay pride display by > student B, a conservative Christian who is offended by the school's > endorsement of the message that his religious belief about human > sexuality is wrong and must be "stopped." > > Many of you would agree with Justice Alito that the government has a > right to take a position denouncing "homophobia" and that we would > deny an essential part of government's power if we allow student B a > heckler's veto enjoining the government's right to express its > message. So long as the government does not coerce student B into > affirming his support for the government's viewpoint, his remedy is > to avert his eye rather than to silence the government and those who > wish to receive the government's message about gay rights. > > But not so with student A and his objection to the Christmas > display. Even though his liberty is in no way deprived by a passive > display recognizing a religious holiday being celebrated by many in > the community, he has the right to censor government speech > endorsing religion. Suddenly, government speech is not so essential > and is subject to a heckler's veto by anyone who takes offense. > > If Alito is right and the essence of government is to speak out and > take the viewpoints of its choice on issues that come up in the > marketplace of ideas, why should the EC be interpreted as protecting > a non-liberty interest of hecklers to censor religious viewpoints > expressed by state and local governments? > > Because student A feels like an outsider as a result of the state's > nativity display? But doesn't student B, the religious "homophobe," > feel even more like an unwanted outsider when the state endorse the > gay pride display and the message that "homophobia" such as his > religious beliefs must be stopped? > > We all cover the issues Alan raises. But I suspect many of us do not > point out the contrast between those offended by the government's > secular speech and those offended by the government's religious > speech.
Re: NY Religious Corporations Law
The more interesting question is why anyone would have proposed such a patently unconstitutional law. For an apparently well sourced explanation debunking the claim, already made, that the proposed legislation was either retribution for the Church's stand on Prop 8, or part of a larger culture war, see http://secularright.org/wordpress/?p=1724 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) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School mmasin...@law.miami.edu 1311 Miller Drive Coral Gables, FL 33146 Quoting hamilto...@aol.com: > I would like to ask a point of information on the law profs letter > to Conn legis. I am wondering if it was formally or informally > commissioned by the bishops. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Marc Stern" > > Date: Thu, 12 Mar 2009 12:21:28 > To: > Subject: Re: NY Religious Corporations Law > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages that > are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages that > are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Child deaths test faith-healing exemptions - Kids and parenting- msnbc.com
Not much has changed since the extended thread a decade ago on Lundman v. McKown, McKown (Minn. App. 1995), a wrongful death suit by a father against a mother, a stepfather, and a faith healer who prayed a child to death from type one diabetes. Michael McConnell contributed thoughtful posts to that discussion defending exemptions, though I remained unconvinced then and now. It's not clear whether the exemption's roots lie in respect for religion or the long history of children as chattels. Either way, the exemption seems irreconcileable with Amos since it imposes the burden of death on a child. To paraphrase a better writer, a homicide by any other name would smell as sour. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) [EMAIL PROTECTED]954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School [EMAIL PROTECTED] 1311 Miller Drive Coral Gables, FL 33146 Quoting Joel Sogol <[EMAIL PROTECTED]>: > http://www.msnbc.msn.com/id/27844314/ > > Joel L. Sogol > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages that > are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mark of the beast lawsuit by Amish
I referred to Bell Atlantic v. Twombly because plaintiffs have sued both USDA and Michigan officials under RFRA despite City of Boerne v. Flores. The predicate for the RFRA claims is the conclusory allegation that Michigan is a puppet controlled by USDA, so that its actions properly can be imputed to the U.S. and brought within the surviving scope of RFRA. I understand Twombly's murky discussion of pleading requirements to sometimes require more than a conclusory allegation to meet Rule 8(a)(2)'s requirement of an allegation that shows the pleader is entitled to relief. Twombly seems to require the allegation of a plausible basis in fact for the asserted conclusion on which the right to relief hinges, at least when the conclusion alleged is contrary to common experience. The USDA regs explicitly make the tagging optional; therefore Michigan, not USDA would seem responsible for Michigan's decision to require tagging, and if so, beyond the reach of RFRA. The conclusory assertion that USDA is acting as puppeteer in the face of regulations that deprive them of that power strikes me as insufficient to meet Twombly's pleading requirements, as murky as they are. I have since read the USDA motion to dismiss; not suprisingly, like thousands of post Twombly motions to dismiss, it makes that very argument. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) [EMAIL PROTECTED]954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School [EMAIL PROTECTED] 1311 Miller Drive Coral Gables, FL 33146 Quoting Marc Stern <[EMAIL PROTECTED]>: > Plainly the use of id's on cattle is a mark of the beast. > I am puzzled by Professor Masinter's s reference to Twombly-i don't see > the relevance of the reference. > Marc Stern > > > > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman > Sent: Friday, November 14, 2008 2:03 PM > To: Law & Religion issues for Law Academics > Subject: Re: Mark of the beast lawsuit by Amish > > > Complaint: > > http://blog.wired.com/27bstroke6/files/satanfiling.pdf > > DOJ Brief: > > http://blog.wired.com/27bstroke6/files/beast.pdf > > > > > > On Fri, Nov 14, 2008 at 11:34 AM, Jean Dudley <[EMAIL PROTECTED]> > wrote: > > > http://blog.wired.com/27bstroke6/2008/11/bush-administra.html > >From the Wired article: "The Amish farmers claim Michigan > regulations requiring them to use radio frequency identification > devices on their cattle "constitutes some form of a 'mark of the > beast' and/or represents an infringement of their 'dominion over > cattle and all living things' in violation of their fundamental > religious beliefs," according to the farmers' lawsuit filed in > September in U.S. District Court for the District of Columbia." > > Thoughts? > > Jean > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read messages > that are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > > > > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Mark of the beast lawsuit by Amish
I tried to find within the complaint nonconclusory allegations that USDA used its spending powers to compel Michigan to adopt mandatory tagging, but on what I concede to be a cursory read, I didn't see much there. But I agree with Doug that if the allegation is true, RFRA should apply. Assuming Michigan construes its free exercise clause along the lines of Sherbert-Yoder, doesn't Pennhurst construe the eleventh amendment to bar federal courts from hearing claims against state officials for injunctive relief to compel compliance with the state constitution? Has Michigan waived that aspect of its eleventh amendment immunity? Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) [EMAIL PROTECTED]954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School [EMAIL PROTECTED] 1311 Miller Drive Coral Gables, FL 33146 Quoting Douglas Laycock <[EMAIL PROTECTED]>: > > > It isn't clear from the story whether this is something Michigan did > wholly on its own, or whether it is a condition of some federal > grant although not formally mandated. If it's a conditional > spending program, I would treat the feds as responsible. > > Michigan appears to have interpreted its own free exercise clause to > mean something like Sherbert-Yoder instead of Smith, although the > cases are far from perfectly clear. > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Mark of the beast lawsuit by Amish
In the post Smith world, it's not obvious why the free exercise clause would forbid Michigan from requiring the use of RFID chips even if members of a particular faith think the chips constitute the mark of the beast. In the post Bell Atlantic v. Twombly world, the argument that RFRA applies because Michigan is acting as a puppet of USDA even though USDA regs explicitly make participation in any federal identification program optional seems at first glance to be a stretch. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) [EMAIL PROTECTED]954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School [EMAIL PROTECTED] 1311 Miller Drive Coral Gables, FL 33146 Quoting Jean Dudley <[EMAIL PROTECTED]>: > http://blog.wired.com/27bstroke6/2008/11/bush-administra.html > > From the Wired article: "The Amish farmers claim Michigan > regulations requiring them to use radio frequency identification > devices on their cattle "constitutes some form of a 'mark of the > beast' and/or represents an infringement of their 'dominion over > cattle and all living things' in violation of their fundamental > religious beliefs," according to the farmers' lawsuit filed in > September in U.S. District Court for the District of Columbia." > > Thoughts? > > Jean > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed > as private. Anyone can subscribe to the list and read messages that > are posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) [EMAIL PROTECTED]954.262.3835 (fax) Visiting Professor of Law (2008-2009)305.284.3626 (voice) University of Miami Law School [EMAIL PROTECTED] 1311 Miller Drive Coral Gables, FL 33146 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
