Re: Kansas/Arizona statutes protecting for-profit businesses

[Penalver, Eduardo]

What's interesting about the Az bill is that it does not facially target same 
sex couples - it seems to just extend the state RFRA to disputes among private 
parties.  I don't think Romer would really apply.  On the other hand, it's not 
clear that it would accomplish what its proponents want.  Am I missing 
something?

On Feb 21, 2014, at 9:18 PM, "Marty Lederman" 
mailto:lederman.ma...@gmail.com>> wrote:

And a story out of Arizona . . .

http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpw&rref=politics

Here's the bill (likely to be vetoed):

http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf


On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
Not so fast, Chip!

The Kansas House passed it, but it appears that the Senate will not do so . . . 
despite a 32-8 Republican majority!

http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story

Even in red states, it's incredible how fast hearts and minds are changing . . .


On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
Look at the new Kansas law on the right of individuals and religious entities 
to discriminate against those in same sex marriages, domestic partnerships, 
etc.: 
http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\

Note the definitions in section 3 (a) which defines religious entity to include 
"a privately-held business . . ."  (section 3(a)(3)).  Perhaps this is the 
unfortunate wave of the future in red states, preparing for a 14th Amendment 
obligation to recognize same sex marriage.


On Sun, Feb 16, 2014 at 2:01 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
On a quick read, it appears that neither of the state assisted suicide statutes 
is analogous, either.  They merely confirm that although entities can assist 
suicides, no one is under any obligation to do so.  No need for any exemption 
at all, since there's no duty in the first place.  And thus, not surprisingly, 
no reference to religion at all, far as I could see.

___
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: Notre Dame-- where's the complicit "participation"? Sincerity

[Penalver, Eduardo]

I agree with Rick on both points.  (FWIW, in her book on Catholic teaching in 
contraception, I believe Leslie Tentler identified 5-6 kids as the more 
standard size for CathoIic families who followed Church teaching.)  But I think 
the issue becomes even more complicated once you move beyond avoiding forbidden 
cooperation with evil.  After all, haven't the courts typically understood 
substantial burden to mean being required to do what is forbidden or being 
forbidden to do what is required?  Although I am not a fan of Lyng, the 
majority in that case distinguished between a substantial burden understood in 
those narrower terms, and a request for state assistance to achieve some higher 
form of spiritual development.

On Feb 16, 2014, at 6:22 PM, "Rick Garnett" 
mailto:rgarn...@nd.edu>> wrote:

Colleagues -

Two quick things:  First, as Eduardo has said, the "cooperation with evil" 
question is tricky and (he and I agree) debatable and debated among informed 
Catholics. In my view, though (as Marty and I have discussed a few times), it 
is incomplete to think about the burden the mandate might impose on Notre 
Dame's religious exercise only in "cooperation" terms (and Fr Jenkins, Notre 
Dame's President, has not so limited his account).  RFRA protects more that a 
religiously motivated desire to avoid (what the claimant regards as) wrongdoing.

Next, I hope that I am not the only one who is taken aback by Prof. Hamilton's  
entirely unsupported but repeated claim that those (admittedly not that many) 
who embrace and follow the Catholic Church's proposals regarding sexuality 
"typically" have "10-20" children?  I cannot think of a constructive purpose 
that this strange claim could serve in this or any other discussion.

Rick


Sent from my iPhone

On Feb 16, 2014, at 2:23 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

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



On Feb 16, 2014, at 3:45 PM, "Douglas Laycock" 
mailto:dlayc...@virginia.edu>> wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.

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

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Sunday, February 16, 2014 3:14 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity

Is Doug correct as a legal matter that the bishops speak for Notre Dame, as 
opposed to its officials, and the officials' actions are irrelevant?  And that 
the actions of its co-religionist officials are irrelevant to  proof of the 
organization's beliefs?  Why don't the practices of Notre Dame's officials 
prove insincerity in this case?   (I'm assuming that they don't have the 10-20 
children
typically incident to not using birth control and that they follow the vast 
majority of American Catholics in rejecting the belief against contraception).  
How can they claim
a right not to provide contraception for their employees/students in their 
health plan because of complicity if they are using it themselves?

To provide an analogy:   In the prison cases, you can test a prisoner's 
sincerity when he demands kosher food (because it's better than the usual fare),
and claims a conversion to Judaism, but they find pork rinds in his cell, it is 
assumed he is not sincere a

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[Penalver, Eduardo]

There is a huge difference between the Church's teaching on contraception 
(which is clear), and its views on the permissibility of participating in an 
insurance scheme that covers contraception for employees who would likely 
already purchase it using their paychecks, let alone the permissibility of 
signing a form the consequence of which is that some contractual third party 
provides contraceptive coverage to said employees.  The sincerity of the 
recently asserted views on these later two questions is far from clear to my 
mind.  Again, though, the degree to which a court should probe this issue 
strikes me as a different and difficult question.  But it seems important to 
acknowledge the novelty of the position some Catholic institutions have adopted 
in this litigation.

On Feb 16, 2014, at 3:43 PM, "Marty Lederman" 
mailto:lederman.ma...@gmail.com>> wrote:

I appreciate Marci's support on my other point, but I'm afraid I don't agree 
that the views of American Catholics writ large is especially relevant.  It's 
no secret that most Catholics, including ND students and faculty, disagree with 
ND's view, and with the Church's, on the morality of contraception and 
premarital sex.  That's why this is a losing battle for ND in the long run.  
But I think there can be little doubt but that, as an institution, Notre Dame 
believes (and at least nominally instructs its students) that such things are 
indeed sinful.


On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

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



On Feb 16, 2014, at 3:45 PM, "Douglas Laycock" 
mailto:dlayc...@virginia.edu>> wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.

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

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Sunday, February 16, 2014 3:14 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity

Is Doug correct as a legal matter that the bishops speak for Notre Dame, as 
opposed to its officials, and the officials' actions are irrelevant?  And that 
the actions of its co-religionist officials are irrelevant to  proof of the 
organization's beliefs?  Why don't the practices of Notre Dame's officials 
prove insincerity in this case?   (I'm assuming that they don't have the 10-20 
children
typically incident to not using birth control and that they follow the vast 
majority of American Catholics in rejecting the belief against contraception).  
How can they claim
a right not to provide contraception for their employees/students in their 
health plan because of complicity if they are using it themselves?

To provide an analogy:   In the prison cases, you can test a prisoner's 
sincerity when he demands kosher food (because it's better than the usual fare),
and claims a conversion to Judaism, but they find pork rinds in his cell, it is 
assumed he is not sincere and does not receive the accommodation (a state
prison general counsel provided this example for me)

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
___

To post, send message to 

Re: On implausible burdens

[Penalver, Eduardo]

Thanks, Rick -- For me, the problem with the ND claim is precisely the 
opposite.  If the beliefs of the group were more unfamiliar, I'd be less 
puzzled and more likely to defer to the group's own description of the burden.  
As a Catholic, I feel more entitled to probe, and as a consequence I have 
really struggled to reconcile the ND litigation position with what I understand 
Catholic teaching to be on cooperation with evil.  That's not to say that my 
kinds of insider-doubts about the accuracy and sincerity of ND's claims should 
inform the ultimate legal decision, but watching Catholic groups adopt the 
approach they have in these cases has made me more sensitive to some of the 
potential costs of RFRA.

Eduardo

On Feb 14, 2014, at 6:52 PM, "Rick Garnett" 
mailto:rgarn...@nd.edu>> wrote:


From: Rick Garnett mailto:rgarn...@nd.edu>>
Date: February 14, 2014 at 5:42:42 PM MST
To: "Levinson, Sanford V" 
mailto:slevin...@law.utexas.edu>>
Cc: "religionlawp...@lists.ucla.edu" 
mailto:religionlawp...@lists.ucla.edu>>, 
"conlawp...@lists.ucla.edu" 
mailto:conlawp...@lists.ucla.edu>>
Subject: On implausible burdens

Dear colleagues - Today's lively traffic regarding Judge Posner's and ND's 
lawyer's performance (I think Judge Posner did not behave well) and the (redux) 
plausibility of ND's claim that the HHS mandate (as modified, in ND's case) 
imposes an unnecessary and substantial burden on religious exercise within the 
meaning of RFRA (I think the RFRA claims are strong) makes me think that the 
following blog post, by our colleague Alan Brownstein, is well worth a read and 
reflection:

http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html

Some on this list have shared their view that ND's claim is implausible, or 
disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most 
of us are not sympathetic, even if we are open in principle to religious 
accommodations.  Alan's post - which, as one would expect, is fair, charitable, 
and thoughtful - is (among other things) an invitation to law-and-religion 
folks to use the Town of Greece and HHS cases as an occasion to ask ourselves 
why we sometimes dismiss as insubstantial (or worse) claims of religion-related 
harm or burdens on religious exercise that we do not understand or that we are 
not willing to accommodate.

I admit:  I am probably as mystified by the hostile reactions of those who are 
mystified by ND's claims (which doesn't mean I think the ultimate question is 
easy) as they are by those claims.  I have long been underwhelmed by the 
allegations of injury in religious-symbols cases.  And, I regard the notion 
that ND's claims are - in a world where one's irritation at the prospect that, 
somewhere, a disadvantaged kid is using a voucher to attend a parochial school 
amounts to a standing-creating wound to conscience - bizarrely outside the 
realm of possibility (or worse!) as,well, bizarre.  But . . . Alan's post is a 
powerful one and - like Larry Solum would say - "highly recommended."

Best, Rick


Sent from my iPad

On Feb 14, 2557 BE, at 3:38 PM, "Levinson, Sanford V" 
mailto:slevin...@law.utexas.edu>> wrote:

I know I’ve made this point before, but I still don’t see the difference 
between the “setting in motion” that is generated by sending in the form and 
the “setting in motion” that occurs when one pays, under penalty of law, one’s 
taxes that can then be used for all sorts of immoral purposes according to the 
tenets of one or another religion.  If I didn’t know better, I’d simply 
describe this claim as “frivolous,” but I do realize that people I respect 
apparently take it seriously.  But isn’t it a recipe for the kind of Scalian 
anarchy that he warned about in Smith?   It is a sad truth that out everyday 
acts of compliance with the law, including tax law, serves to enable the state 
to do things we (perhaps justifiably) don’t like.  I really don’t see how one 
can distinguish Notre Dame’s claim from the refusal of a postal worker to 
deliver mail to an abortion clinic on the grounds that it enables their wicked 
handiwork.

I don’t think Barnette applies to this case, since the kids in that case were 
being forced to proclaim their allegiance, which they treated as an act of 
idolatry.  And, for what it is worth, the Court was crystal clear in viewing it 
as a Free Speech, not a freedom of religion, case.

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scot Zentner
Sent: Friday, February 14, 2014 3:21 PM
To: conlawp...@lists.ucla.edu
Subject: RE: Posner on oral advocacy in religion caseesri

I am not sure, but is it not the case that ND's precise claim is that the 
exemption part of the form is not the problem, but the fact that the form is 
also

Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case

[Penalver, Eduardo]

Not how this is being reported, but I agree.

On Jan 24, 2014, at 4:35 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

It looks like the Court told them to do what they said they didn't want to do.

Marci

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



On Jan 24, 2014, at 5:28 PM, "Friedman, Howard M." 
mailto:howard.fried...@utoledo.edu>> wrote:

The Supreme Court today extended the injunction pending appeal in Little 
Sisters of the Poor case, but with unusual conditions-- see 
http://religionclause.blogspot.com/2014/01/supreme-court-enjoins-enforcement-of.html
___
To post, send message to 
Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
___
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: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[Penalver, Eduardo]

And then there's Florida:

A nearly 6-foot-tall 
"Festivus"
 pole made from empty beer cans will be put up in the Florida Capitol this week 
as a not-so-subtle protest to the recent placement of a Christmas nativity 
scene.

The mock monument will be erected most likely on Wednesday in the same 
first-floor rotunda as a nativity scene depicting the birth of Jesus 
Christ
 put up last week by the Florida Prayer Network.

"I still chuckle, I literally can't believe there will be a pile of Pabst Blue 
Ribbon cans in the state rotunda," said Chaz Stevens, a Deerfield Beach 
resident who applied to the state Department of Management Services to put the 
Festivus pole on display.

http://www.orlandosentinel.com/news/politics/os-festivus-florida-capitol-20131209,0,1969699.story

Best wishes,
Eduardo



From: Christopher Lund mailto:l...@wayne.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Monday, December 9, 2013 9:42 AM
To: 'Law & Religion issues for Law Academics' 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature

The result and logic of Summum make sense to me, but I’ve been a little 
bothered by how far it’s gone.

For example... earlier this year, the 6th Circuit decided Freedom from Religion 
Foundation v. City of Warren.  The City of Warren had a Christmas display in 
the atrium of their city building—a crèche, a tree, reindeer and snowmen, a 
sign saying “Winter Welcome”—put up by the Warren Rotary Club.  FFRF wanted to 
put up their own display, a billboard saying that religion was nothing but myth 
and superstition.  FFRF, predictably, was denied the right to put up that 
display, and sued.  (For the sake of disclosure, I should add that I wrote an 
amicus brief on FFRF’s side for the ACLU of Michigan.)

Anyway, throughout the litigation, the City said that the crèche was not their 
crèche, but that of the Warren Rotary Club.  It was not governmental speech, 
they said, but private speech.  The City defended FFRF’s exclusion by saying 
that their reasons were reasonable and viewpoint-neutral.  This was their clear 
and consistent position, at trial and on appeal.  Their brief to the 6th 
Circuit, for example, said things like, “This crèche is accompanied by a sign 
that makes clear that it is 'sponsored by the Warren Rotary Club' and not 
intended to advocate Warren’s viewpoint” (appellee’s brief at 16).

So everyone was thoroughly surprised when they got the appellate opinion, 
http://www.ca6.uscourts.gov/opinions.pdf/13a0049p-06.pdf, which completely 
re-characterized the case.  This was government speech, the 6th Circuit said, 
despite the City’s own protestations.  And evaluated under Lynch/Allegheny 
County, it was constitutional.

I’m not even disagreeing with this result.  We should have briefed the 
government speech / Establishment Clause issues better, rather than focusing on 
the private speech / Free Speech and Free Exercise issues.  But we treated this 
as private speech, because the City had conceptualized it that way the whole 
time—including the original letter that had denied FFRF’s request.  Litigators 
beware.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402


From: "Len" mailto:campquest...@comcast.net>>
To: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Monday, December 9, 2013 5:31:33 AM
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature

Isn't there a significant difference between placing a religious monument in a 
public park vs placing a religious monument in a State capitol building?


From: "Steven Jamar" mailto:stevenja...@gmail.com>>
To: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Cc: religionlaw@lists.ucla.edu
Sent: Sunday, December 8, 2013 9:46:54 PM
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature

Sunnum handles this, no?

Sent from Steve's iPhone
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the 

Re: New Mexico decision and other First Amendment expression

[Penalver, Eduardo]

It would have come out the same way in NM without Lawrence, in my opinion.  
Look, you said that the civil rights context was irrelevant to the court's 
logic.  That's just wrong.  The court's logic seems to be precisely that the 
purpose and effect of the application of the civil rights statute challenged on 
1A grounds is something other than the compelled communication of a 
government-favored message (protecting a group of people from humiliation and 
dignitary harm).  Your hypothetical does not include any analogous function for 
the government's requirement of participation in pro war activities. It might 
not even pass rational basis scrutiny on due process grounds.  Now maybe your 
point is to ask who gets to decide which groups deserve special legal 
protection from humiliation and dignitary harm in commercial transactions.  
That's an interesting question, but I don't think it implicates a compelled 
speech argument, and it's not really clear that a vendor denying services is 
the proper party to raise it.

From: Michael Worley mailto:mwor...@byulaw.net>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Friday, August 23, 2013 9:27 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: New Mexico decision and other First Amendment expression

Ah; you misunderstand.  Of course in one respect it is a civil rights issue, 
since the statute is about human rights.  However, if it was truly a civil 
rights issue, the case would have come out the same way without the law in 
question.  Are you suggesting that if Bowers were still good case law (and 
every decision based on Lawrence didn't exist), the photographer would have won 
under the NM law?  I don't think so, based on the logic the Court uses.

The court uses the law itself as the only authority for saying this is a civil 
rights issue (other than a minor point about conduct/orientation distinction).  
So ultimately a law putting a different sort of restriction (mandating photos 
irrespective of views on war) would meet the same analysis.



On Fri, Aug 23, 2013 at 8:19 AM, Penalver, Eduardo 
mailto:penal...@uchicago.edu>> wrote:
>From the majority opinion:


The Barnette Court noted that the dissenting students’ choice not to salute the 
flag “[did] not bring them into collision with rights asserted by any other 
individual.” 319 U.S. at 630. That is not the case here, where Elane 
Photography’s asserted right not to serve same-sex couples directly conflicts 
with Willock’s right under Section 28- 1-7(F) of the NMHRA to obtain goods and 
services from a public accommodation without discrimination on the basis of her 
sexual orientation. Antidiscrimination laws have important purposes that go 
beyond expressing government values: they ensure that services are freely 
available in the market, and they protect individuals from humiliation and 
dignitary harm. See Daniel v. Paul, 395 U.S. 298, 307-08 (1969) (stating that 
the purpose of Title II of the Civil Rights Act of 1964 was “to [re]move the 
daily affront and humiliation involved in discriminatory denials of access to 
facilities ostensibly open to the general public”) (internal quotation marks 
and citation omitted); Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964) 
(discussing the economic impact of discrimination in public accommodations).

Eduardo M. Peñalver
John P. Wilson Professor of Law
University of Chicago Law School
 E. 60th Street
Chicago, IL 60637

penal...@uchicago.edu<mailto:penal...@uchicago.edu>
(773) 702-3959 (phone)
(773) 702-0730 (fax)


From: , Eduardo mailto:penal...@uchicago.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Friday, August 23, 2013 9:00 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>

Subject: Re: New Mexico decision and other First Amendment expression

Of course the civil rights point matters.  And the court said as much.

On Aug 23, 2013, at 8:55 AM, "Michael Worley" 
mailto:mwor...@byulaw.net>> wrote:

Right; of course the statute I proposed would not fall under the realm of 
"civil rights," but I do not believe the arguments hinge on that point.  Thus, 
New Mexico could pass a law requiring people to participate in pro-war 
activities (in this scenario, photography) if they use a business.

It may be farfetched, but would it be constitutional?  Under the case here, the 
answer seems to be "yes" despite Seeger.

Michael


On Fri, Aug 23, 2013 at 6:56 AM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
Let me clarify: the issue in New Mexico is a conflict between the civil rights 
of same sex couples and for-profit photographers who hold themselves out as a 
public accommodation.The govt does not have civil rights.

Re: New Mexico decision and other First Amendment expression

[Penalver, Eduardo]

>From the majority opinion:


The Barnette Court noted that the dissenting students’ choice not to salute the 
flag “[did] not bring them into collision with rights asserted by any other 
individual.” 319 U.S. at 630. That is not the case here, where Elane 
Photography’s asserted right not to serve same-sex couples directly conflicts 
with Willock’s right under Section 28- 1-7(F) of the NMHRA to obtain goods and 
services from a public accommodation without discrimination on the basis of her 
sexual orientation. Antidiscrimination laws have important purposes that go 
beyond expressing government values: they ensure that services are freely 
available in the market, and they protect individuals from humiliation and 
dignitary harm. See Daniel v. Paul, 395 U.S. 298, 307-08 (1969) (stating that 
the purpose of Title II of the Civil Rights Act of 1964 was “to [re]move the 
daily affront and humiliation involved in discriminatory denials of access to 
facilities ostensibly open to the general public”) (internal quotation marks 
and citation omitted); Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964) 
(discussing the economic impact of discrimination in public accommodations).

Eduardo M. Peñalver
John P. Wilson Professor of Law
University of Chicago Law School
 E. 60th Street
Chicago, IL 60637

penal...@uchicago.edu
(773) 702-3959 (phone)
(773) 702-0730 (fax)


From: , Eduardo mailto:penal...@uchicago.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Friday, August 23, 2013 9:00 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: New Mexico decision and other First Amendment expression

Of course the civil rights point matters.  And the court said as much.

On Aug 23, 2013, at 8:55 AM, "Michael Worley" 
mailto:mwor...@byulaw.net>> wrote:

Right; of course the statute I proposed would not fall under the realm of 
"civil rights," but I do not believe the arguments hinge on that point.  Thus, 
New Mexico could pass a law requiring people to participate in pro-war 
activities (in this scenario, photography) if they use a business.

It may be farfetched, but would it be constitutional?  Under the case here, the 
answer seems to be "yes" despite Seeger.

Michael


On Fri, Aug 23, 2013 at 6:56 AM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
Let me clarify: the issue in New Mexico is a conflict between the civil rights 
of same sex couples and for-profit photographers who hold themselves out as a 
public accommodation.The govt does not have civil rights.


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



On Aug 23, 2013, at 8:45 AM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:

Are people who support the decision in New Mexico also willing to support a law 
forcing photographers who object to war to take pictures of army battle drills 
if hired by a government contractor?  If not, what is the difference?


On Thu, Aug 22, 2013 at 10:20 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
My sense is that many freelance writers are indeed pretty 
unselective.  But, in any event, why should the writer’s or photographer’s 
selectivity or unselectivity affect the First Amendment compelled speech 
analysis?  I would think that a freelance writer who picks and chooses – but 
absolutely refuses to write things for the Church of Scientology – and the 
freelance writer who takes 99% of his commissions but thinks that the Church of 
Scientology is just beyond the pale should have the same First Amendment rights 
not to create expression that they think is wrong (or maybe that they think is 
just too far wrong).

Eugene

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 Penalver, Eduardo
Sent: Thursday, August 22, 2013 9:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression

Not necessarily.  I don't think your hypothetical writer would necessarily 
count as having held himself out as open to the public to ply his trade as 
you've described it.  That is, I don't think that advertising by itself would 
be enough to count as holding oneself out.  Here, the photographer did just 
that - held herself out as open to all comers (except the disfavored group) at 
a price.  Apart from same sex couples, there's nothing in the opinion 
suggesting much selectivity in her business model.  Her holding out was an 
essential premise underlying the court's decision.  She did not contest her 
status as a public accommodation, after all.

On Aug 22, 2013, at 10:43 PM, "Volokh, Eugene" 
mailto:vol...

Re: New Mexico decision and other First Amendment expression

[Penalver, Eduardo]

Of course the civil rights point matters.  And the court said as much.

On Aug 23, 2013, at 8:55 AM, "Michael Worley" 
mailto:mwor...@byulaw.net>> wrote:

Right; of course the statute I proposed would not fall under the realm of 
"civil rights," but I do not believe the arguments hinge on that point.  Thus, 
New Mexico could pass a law requiring people to participate in pro-war 
activities (in this scenario, photography) if they use a business.

It may be farfetched, but would it be constitutional?  Under the case here, the 
answer seems to be "yes" despite Seeger.

Michael


On Fri, Aug 23, 2013 at 6:56 AM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
Let me clarify: the issue in New Mexico is a conflict between the civil rights 
of same sex couples and for-profit photographers who hold themselves out as a 
public accommodation.The govt does not have civil rights.


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



On Aug 23, 2013, at 8:45 AM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:

Are people who support the decision in New Mexico also willing to support a law 
forcing photographers who object to war to take pictures of army battle drills 
if hired by a government contractor?  If not, what is the difference?


On Thu, Aug 22, 2013 at 10:20 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
My sense is that many freelance writers are indeed pretty 
unselective.  But, in any event, why should the writer’s or photographer’s 
selectivity or unselectivity affect the First Amendment compelled speech 
analysis?  I would think that a freelance writer who picks and chooses – but 
absolutely refuses to write things for the Church of Scientology – and the 
freelance writer who takes 99% of his commissions but thinks that the Church of 
Scientology is just beyond the pale should have the same First Amendment rights 
not to create expression that they think is wrong (or maybe that they think is 
just too far wrong).

Eugene

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 Penalver, Eduardo
Sent: Thursday, August 22, 2013 9:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression

Not necessarily.  I don't think your hypothetical writer would necessarily 
count as having held himself out as open to the public to ply his trade as 
you've described it.  That is, I don't think that advertising by itself would 
be enough to count as holding oneself out.  Here, the photographer did just 
that - held herself out as open to all comers (except the disfavored group) at 
a price.  Apart from same sex couples, there's nothing in the opinion 
suggesting much selectivity in her business model.  Her holding out was an 
essential premise underlying the court's decision.  She did not contest her 
status as a public accommodation, after all.

On Aug 22, 2013, at 10:43 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
A quick question, focusing on the compelled speech side of the 
issue rather than just the RFRA side.  The court’s logic isn’t limited to 
sexual orientation discrimination (as opposed to other kinds of discrimination) 
or to photographers (as opposed to other creators of protected expression).  
Say that a freelance writer, who advertises himself to the public at large, is 
asked by the Church of Scientology (or the LDS Church or any other religious 
group) to write promotional material for it.

He says no:  He refuses to create speech that he views as being factually or 
morally false, for instance by glorifying as right, worthy, holy, or beautiful 
that which he believes is morally corrupt.  Following Solzhenitsyn, he wants to 
“Live Not by Lies” – to “not write, not sign, not print through any means even 
a single phrase that distorts, in his opinion, the truth,” to not, “in 
painting, sculpture, photography, music, or through technological means” 
“depict, accompany, or retransmit even a single lying thought, not a single 
distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s 
“Live Not by Lies” essay).

The Scientologists then sue him for his discriminating against them based on 
religion.  Am I right in thinking that, under the New Mexico Supreme Court’s 
reasoning, requiring him to pay damages would be seen as constitutionally 
permissible, and as not being an unconstitutional speech compulsion?  If so, is 
that a constitutionally sound result?

Eugene
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or 

Re: New Mexico decision and other First Amendment expression

[Penalver, Eduardo]

It seems to me, the more selective they are, (1) the less likely they are 
covered by the statute (the predicate for the 1A claim) and (2) the more the 
speech is their own (which does seem relevant to a compelled speech claim).

On Aug 22, 2013, at 11:23 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

My sense is that many freelance writers are indeed pretty 
unselective.  But, in any event, why should the writer’s or photographer’s 
selectivity or unselectivity affect the First Amendment compelled speech 
analysis?  I would think that a freelance writer who picks and chooses – but 
absolutely refuses to write things for the Church of Scientology – and the 
freelance writer who takes 99% of his commissions but thinks that the Church of 
Scientology is just beyond the pale should have the same First Amendment rights 
not to create expression that they think is wrong (or maybe that they think is 
just too far wrong).

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo
Sent: Thursday, August 22, 2013 9:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression

Not necessarily.  I don't think your hypothetical writer would necessarily 
count as having held himself out as open to the public to ply his trade as 
you've described it.  That is, I don't think that advertising by itself would 
be enough to count as holding oneself out.  Here, the photographer did just 
that - held herself out as open to all comers (except the disfavored group) at 
a price.  Apart from same sex couples, there's nothing in the opinion 
suggesting much selectivity in her business model.  Her holding out was an 
essential premise underlying the court's decision.  She did not contest her 
status as a public accommodation, after all.

On Aug 22, 2013, at 10:43 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
A quick question, focusing on the compelled speech side of the 
issue rather than just the RFRA side.  The court’s logic isn’t limited to 
sexual orientation discrimination (as opposed to other kinds of discrimination) 
or to photographers (as opposed to other creators of protected expression).  
Say that a freelance writer, who advertises himself to the public at large, is 
asked by the Church of Scientology (or the LDS Church or any other religious 
group) to write promotional material for it.

He says no:  He refuses to create speech that he views as being factually or 
morally false, for instance by glorifying as right, worthy, holy, or beautiful 
that which he believes is morally corrupt.  Following Solzhenitsyn, he wants to 
“Live Not by Lies” – to “not write, not sign, not print through any means even 
a single phrase that distorts, in his opinion, the truth,” to not, “in 
painting, sculpture, photography, music, or through technological means” 
“depict, accompany, or retransmit even a single lying thought, not a single 
distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s 
“Live Not by Lies” essay).

The Scientologists then sue him for his discriminating against them based on 
religion.  Am I right in thinking that, under the New Mexico Supreme Court’s 
reasoning, requiring him to pay damages would be seen as constitutionally 
permissible, and as not being an unconstitutional speech compulsion?  If so, is 
that a constitutionally sound result?

Eugene
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone ca

Re: New Mexico decision and other First Amendment expression

[Penalver, Eduardo]

Not necessarily.  I don't think your hypothetical writer would necessarily 
count as having held himself out as open to the public to ply his trade as 
you've described it.  That is, I don't think that advertising by itself would 
be enough to count as holding oneself out.  Here, the photographer did just 
that - held herself out as open to all comers (except the disfavored group) at 
a price.  Apart from same sex couples, there's nothing in the opinion 
suggesting much selectivity in her business model.  Her holding out was an 
essential premise underlying the court's decision.  She did not contest her 
status as a public accommodation, after all.

On Aug 22, 2013, at 10:43 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

A quick question, focusing on the compelled speech side of the 
issue rather than just the RFRA side.  The court’s logic isn’t limited to 
sexual orientation discrimination (as opposed to other kinds of discrimination) 
or to photographers (as opposed to other creators of protected expression).  
Say that a freelance writer, who advertises himself to the public at large, is 
asked by the Church of Scientology (or the LDS Church or any other religious 
group) to write promotional material for it.

He says no:  He refuses to create speech that he views as being factually or 
morally false, for instance by glorifying as right, worthy, holy, or beautiful 
that which he believes is morally corrupt.  Following Solzhenitsyn, he wants to 
“Live Not by Lies” – to “not write, not sign, not print through any means even 
a single phrase that distorts, in his opinion, the truth,” to not, “in 
painting, sculpture, photography, music, or through technological means” 
“depict, accompany, or retransmit even a single lying thought, not a single 
distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s 
“Live Not by Lies” essay).

The Scientologists then sue him for his discriminating against them based on 
religion.  Am I right in thinking that, under the New Mexico Supreme Court’s 
reasoning, requiring him to pay damages would be seen as constitutionally 
permissible, and as not being an unconstitutional speech compulsion?  If so, is 
that a constitutionally sound result?

Eugene
___
To post, send message to 
Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

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

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Penalver, Eduardo]

Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo





From: "Friedman, Howard M." 
mailto:howard.fried...@utoledo.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: New Twist On Challenge to ACA Contraceptive Mandate

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
___ To post, send message to 
Religionlaw@lists.ucla.edu To subscribe, 
unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that 
messages sent to this large list cannot be viewed as private. Anyone can 
subscribe to the list and read messages that are posted; people can read the 
Web archives; and list members can (rightly or wrongly) forward the messages to 
others.
___
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: Marriage -- the Alito dissent

[Penalver, Eduardo]

I'm relatively new to this list, but can you possibly believe this?:

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made.

On Jun 30, 2013, at 8:41 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:

The morality of homosexual relationships can only be maintained by someone who 
is unaware of - or ignores - the arguments that are actually made. You can 
certainly disagree with these arguments but they do not proceed from 
theological premises.

Posner's characterization on Slate of Altio's recitation of the argument 
regarding the effect of SSM on marriage in general is of that piece; it fails 
to address what the argument actually says.

It may well be that Burkean conservatives are being driven from the field by 
shrill accusations of "hate" and "bigotry" but I wouldn't count that an 
argument in favor of the outcome in Windsor.

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, June 30, 2013 12:38 PM
To: hamilto...@aol.com
Cc: religionlaw@lists.ucla.edu; 
conlawp...@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com 
wrote:

I am not sure what Paul's reservation is with the concept that for First 
Amendment purposes, a belief is the belief being held right now by the 
believer, regardless of tradition or history.  I had thought the courts had 
settled on that concept, and its adjunct theory, which is that no court
can tell a religious believer that their belief is not religious or that it is 
not true.

___
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.