Re: The Remarkable Disappearance of State Justifications in Obergefell
Being Muslim (or Christian) has nothing to do with it, but the answer is yes, depending on which Muslims you are talking about. There is, of course, a long history of Muslim thought that recognizes what is natural (no need for the scare quotes with them). On Fri, Jul 3, 2015 at 3:00 PM, Malla Pollack wrote: > Natural law is a figment of Christian imagination. Do you really think > that Muslims think western "natural law" is "natural"? > > Malla > > On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty > wrote: > >> Largely agree with this point, except for one major caveat -- natural law >> arguments are not religious arguments. That's what is natural about them. >> The collapse of the distinction between natural and religious is precisely >> what allows for the dismissal of natural law arguments as not applicable to >> the public realm of a secular society (whatever that phrase may mean or >> entail, a great source of contestation). >> >> Richard Dougherty >> >> On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier >> wrote: >> >>> >>> >>> >>> >>> Judy and all: >>> >>> >>> >>> You write: “Sexual relations that can lead to procreation should occur >>> only between a man and a woman...uh, this pertains to same-sex couples how? >>> ” >>> >>> >>> >>> I suspect the writer meant to write: “Sexual relations, which can lead >>> to procreation, should occur only between a man and a woman.” That would >>> make it a natural law argument, one that does not refer to God. It’s part >>> of a millennia-long (probably inevitably recurring) notion that sex is >>> basically polluting and is redeemed by various kinds of restrictions. One >>> functional and redemptive justification for sexual activity is potential >>> procreation. Not pleasure, not fostering a bond of companionship, not the >>> release of important desires. As you well know, in the Judea-Christian >>> tradition, non-procreative sex is problematic, and in one version of >>> Christianity pleasure in sex is itself sinful. (Not so in traditional >>> Judaism!) >>> >>> >>> >>> But of course to say all this openly brings religion and perhaps God >>> back into the state’s justification. What happens instead is to make >>> certain kinds of conclusions about sex statements of obvious fact and then >>> claim rational basis. >>> >>> >>> >>> Warmly, >>> >>> >>> >>> >>> >>> Marc R. Poirier >>> >>> Professor of Law and Martha Traylor Research Scholar >>> >>> Seton Hall University School of Law >>> >>> One Newark Center >>> >>> Newark, NJ 07102-5210 >>> >>> 973-642-8478 (work) >>> >>> 973-642-8546 (fax) >>> >>> 201-259-0896 (mobile) >>> >>> Selected articles and drafts available at http://ssrn.com/author=1268697 >>> >>> >>> >>> >>> ___ 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: The Remarkable Disappearance of State Justifications in Obergefell
Largely agree with this point, except for one major caveat -- natural law arguments are not religious arguments. That's what is natural about them. The collapse of the distinction between natural and religious is precisely what allows for the dismissal of natural law arguments as not applicable to the public realm of a secular society (whatever that phrase may mean or entail, a great source of contestation). Richard Dougherty On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier wrote: > > > > > Judy and all: > > > > You write: “Sexual relations that can lead to procreation should occur > only between a man and a woman...uh, this pertains to same-sex couples how? > ” > > > > I suspect the writer meant to write: “Sexual relations, which can lead to > procreation, should occur only between a man and a woman.” That would make > it a natural law argument, one that does not refer to God. It’s part of a > millennia-long (probably inevitably recurring) notion that sex is basically > polluting and is redeemed by various kinds of restrictions. One functional > and redemptive justification for sexual activity is potential procreation. > Not pleasure, not fostering a bond of companionship, not the release of > important desires. As you well know, in the Judea-Christian tradition, > non-procreative sex is problematic, and in one version of Christianity > pleasure in sex is itself sinful. (Not so in traditional Judaism!) > > > > But of course to say all this openly brings religion and perhaps God back > into the state’s justification. What happens instead is to make certain > kinds of conclusions about sex statements of obvious fact and then claim > rational basis. > > > > Warmly, > > > > > > Marc R. Poirier > > Professor of Law and Martha Traylor Research Scholar > > Seton Hall University School of Law > > One Newark Center > > Newark, NJ 07102-5210 > > 973-642-8478 (work) > > 973-642-8546 (fax) > > 201-259-0896 (mobile) > > Selected articles and drafts available at http://ssrn.com/author=1268697 > > > > Somebody has to plant the seed so that sanity can happen on this earth. -- > Chogyam Trungpa, Rinpoche > > > > > > ___ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > 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. > -- Richard J. Dougherty, Ph.D. Chairman, Politics Department University of Dallas 1845 E. Northgate Drive Irving, TX 75062 972-721-5043 ___ 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: Homeschooling, vaccinations, and Yoder
If I remember correctly, in Texas the tipping point was a court decision, Leeper v. Arlington, in which the court recognized home schools as private schools under Texas law. Richard Dougherty On Mon, Feb 2, 2015 at 9:56 AM, Ira Lupu wrote: > I did very similar research for a piece I wrote in the B.U. L. Rev. in > 1987, and found exactly the same thing -- courts very much resisted > extending Yoder into a general right to home school. They distinguished > Yoder based on age of the children and character of the relevant religious > community (recall the emphasis in Yoder on Amish self-reliance over a long > period of time). Legislatures and agencies did the work of extending the > right to home school to a much broader population. > > On Mon, Feb 2, 2015 at 10:50 AM, Berg, Thomas C. > wrote: > >> Neal Devins’s article in the George Washington Law Review (1992 I >> think) documents this dynamic: home-schoolers losing in court after >> *Yoder* but then prevailing in legislature and agencies. >> >> >> >> - >> >> Thomas C. Berg >> >> James L. Oberstar Professor of Law and Public Policy >> >> University of St. Thomas School of Law >> >> MSL 400, 1000 LaSalle Avenue >> >> Minneapolis, MN 55403-2015 >> >> Phone: (651) 962-4918 >> >> Fax: (651) 962-4996 >> >> E-mail: tcb...@stthomas.edu >> >> SSRN: http://ssrn.com/author=261564 >> >> Weblog: http://www.mirrorofjustice.blogs.com >> <http://www.mirrorofjustice.blogs.com/mirrorofjustice> >> >> >> >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Doug Laycock >> *Sent:* Monday, February 02, 2015 8:31 AM >> *To:* 'Law & Religion issues for Law Academics' >> *Subject:* RE: Homeschooling, vaccinations, and Yoder >> >> >> >> This is impressionistic and not based on a systematic survey, but home >> schoolers lost most of their cases challenging restrictions on home >> schooling. For better or worse, courts said *Yoder* was only about the >> Amish. Home schoolers won their battle in most states politically, through >> the legislature or through continued pressure on the relevant state >> agencies. >> >> >> >> 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 *Volokh, Eugene >> *Sent:* Monday, February 02, 2015 1:00 AM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Homeschooling, vaccinations, and Yoder >> >> >> >>I agree that homeschooling is a possible constraint on the >> effectiveness of schooling-based immunization, though given the burdens of >> homeschooling, I’m not sure how many people’s homeschooling choices are >> going to be driven primarily by vaccination preferences. >> >> >> >>But can you elaborate, please, on Yoder leading to >> “unregulated home schooling”? As I read Yoder, it authorized an exemption >> from schooling – with no requirement for further study, no requirement of >> passing various tests, etc. –for ages 14 and up, and pretty strongly >> suggested that no exemption from schooling would be available for >> materially younger children. Most homeschoolers, especially those who >> homeschool in the prime vaccination years, wouldn’t really get the benefit >> of Yoder as such. >> >> >> >> More broadly, I don’t think there’s much in Yoder that suggests that any >> exemption regime has to be “virtually unregulated.” And >> http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and >> http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the >> big surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well >> after Yoder. It certainly may be the case that there is such a strong >> causal link, but I’d just like to hear a little more about it. >> >> >> >>Eugene >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [ >> mailto:religionlaw-boun...@lists.ucla.edu >> ] *On Behalf Of *Finkelman, Paul >> *Sent
Re: Untangling the confusion of the Wheaton College order
I think Sandy has hit the nail on the head here, but I would add a twist to it. Perhaps I am missing something, but what is the preferred alternative today to accommodation? Isn't it using the non-religious standard to judge the religious claim? Or simply majority rule? (Public opinion polls are all over the place, of course, but many suggest sympathy for the Hobby Lobby position.) But where does that leave the right to free exercise of religion? The twist I would put on Sandy's question is this: the "independent scrutiny" can only be undertaken by someone who is a foreigner to the religious claim. But the success of one's claim doesn't mean it is an irrational claim, or that arguments can't be made for it, only that those arguments will not be persuasive to those who are not sympathetic with the first principles at work. Thus Locke's toleration, as he himself notes, cannot extend to Catholics or Muslims. The triumph of post-modernism can in fact leave us without a basis for making assessments of reasonable claims. The danger, though, is not only over-accommodation (a real danger, I readily admit) -- on the other side it can be under-accommodation, or simply the exercise of power. Richard Dougherty University of Dallas On Sat, Jul 5, 2014 at 9:52 AM, Levinson, Sanford V < slevin...@law.utexas.edu> wrote: > Let me tendentiously suggest that "accommodationist" is synonymous with > "irrationalist" if in fact one can't subject the proffered arguments to > some kind of "independent" scrutiny. Of course, this may represent the > ironic triumph of post-modernism, inasmuch as it taught many of us that > there is in fact no truly independent vantage point from which to police > claims. But, also of course, one can be certain that Wheaton and other > religious claimants have no sympathy for post-modernist > anti-foundationalism. > > Sandy > > Sent from my iPhone > > > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Simple Hobby Lobby question
I would add that it is likely that Hobby Lobby is acting in the interests of the corporation in this instance, including the fiduciary interest; scores of people shop at Hobby Lobby because they like what it stands for. Take that away, or make it seem as if they have abandoned it, and it can't help Hobby Lobby's marketing (see the Boy Scouts). Richard Dougherty University of Dallas On Tue, Jun 10, 2014 at 9:23 PM, Douglas Laycock wrote: > The thoughts below may well be right for a corporation with religiously > diverse ownership. But Hobby Lobby is closely held, with a voting trust > created in part to ensure that the business would be run consistently with > the family's religious commitments. > > In public opinion, and often in law, we hold controlling shareholders > morally and often legally responsible for the wrongdoing of the > corporation. It is hardly unusual or counter normative for the Greens to > feel morally responsible for what they do with the corporation's money. > > If their bookstore affiliate were selling child porn instead of Christian > books, we would hardly excuse the owners who made all the decisions for the > corporation on the ground that it wasn't them that did it, it was the > corporation. > > On Wed, 11 Jun 2014 00:53:05 + > "Daniel J. Greenwood" wrote: > >Surely directors have a fiduciary duty as a matter of state law to set > aside their personal beliefs and act in the interests of the corporation – > not their own souls – according to their best professional judgment. > > > >It would be strange indeed to discover that the First Amendment > nationalizes and constitutionalizes basic aspects of corporate law, barring > corporate law from requiring directors to act as fiduciaries. > > > >It would be stranger still to discover that directors have a right to > spend money that is not theirs -- wealth that was created by the work of > the employees mixed with the capital of shareholders, lenders and past > employee work – for their own purposes rather than the corporations. > That’s theft. Does the First Amendment really protect theft? > > > >Directors act for the corporation. If the corporation cannot exercise > religion, they have no right to cause it to spend (or not spend) money or > violate otherwise applicable law in order to practice their personal > religions. > > > >On the other hand, if the corporation can exercise religion, they have an > obligation to cause it to do so whenever it is in its interest to do so – > which, I suppose, means whenever in their professional judgment doing so > would protect its soul, or if it has no soul, whenever its earthly > interests will be furthered by religious practice. Moreover, if the First > Amendment protects the corporation’s religious rights, ordinary corporate > law suggests that the directors are obliged to cause it to practice > whatever religion will result in promoting those interests. This might > mean, for example, choosing the religion that maximizes profit in some > sense, or that promotes the corporation’s product. > > > >Directors have a great deal of freedom to determine what the > corporation’s interests are. But as a matter of corporate law, they have > no right to substitute their own values for its interests. > > > >Again, it seems bizarre to hold that the First Amendment protection of > freedom of religion protects directors in their fiduciary role: by > assuming the role of fiduciary, they have given up their freedom to act > according to their personal consciences. > > > >Switching the analysis to RFRA helps slightly – at least corporate law > does not become a part of First Amendment law. But it is still quite > implausible that the Congress meant to nationalize a traditionally state > law area without explicit consideration of the implications. > > ___ 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: Hobby Lobby and Abortion
This is somewhat tangential to the discussion, and I am not simply trying to make a political point, so if anyone wishes to respond I will gladly take responses off-list, but I have a non-rhetorical question. Tom Berg's reference to Burt Stupak reminds me that there have been a few references lately to the drafting of the ACA, with the suggestion that if Republicans had participated in the drafting of the act they could have improved it. I wonder if others think that is so, and, if so, in what way(s)? Perhaps some of you have not seen the column Stupak authored in USA Today this past week, in which he raises this question rather pointedly: http://www.usatoday.com/story/opinion/2014/03/11/obamacare-stupak-hobby-lobby-birth-control-column/6264861/ Stupak's position is largely the position that the Catholic bishops took, and which many of them are still taking; they would like virtually the whole bill if only it didn't come with the mandate. But I don't see how you can have one and guarantee that you are not going to get the other, whatever you may have been told by the politicians involved (see, e.g., Stupak and Cardinal Dolan). I wonder, then, what kind of better deal the Republicans could have gotten if they had somehow cooperated with the Democrats in crafting the ACA. Richard Dougherty University of Dallas ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues "bigots" for holding a position that the President of the United States himself held publicly (until being politically forced into "evolving") less than two years ago is frankly insulting. The more one shouts "bigot," though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock wrote: > "They need to adjust [which here clearly means give up their religious > commitments] or move on." As I said. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com > *Sent:* Wednesday, February 26, 2014 3:43 PM > > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > > > I don't have any desire for them to go out of "business," but if they are > going to be in "business," they need to operate in the marketplace without > > discrimination. If the business they have chosen does not fit their > belief, they need to adjust, or move on. No one is barring religious > minorities from professions. > > What is being suggested is that believers cannot shape the business world > and customers to fit their prejudices. The insidious notion that believers > have a right > > not to adjust to the law is the most damaging element of the RFRA > movement, not just to those harmed by it, but by the believers who are > permitted to avoid dealing > > with the changes that increase human rights, and demand their > consideration and accommodation. Believers have enthusiastically > supported the subjugation of blacks, women, children, > > and homosexuals.Not requiring them to adjust when what they are doing > is a violation of human rights is a disservice to all. It is an > understanding of religion removed from history, which > > is false. > > > > The ship has sailed on distinguishing homophobic discrimination and race > discrimination. > > > > Even if the compelling interest test can be overcome (assuming we are > dealing with balancing and not an absolute right), the least restrictive > means test remains, and that > > is the element that drives cases in favor of the religious actor and > against those they burden and harm. > > > > > ___ 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
I take it that depends on what we mean by "not uncommon." A family of 15 children in mid-century America was a remarkable phenomenon, I can say from experience. Not sure in what sense the Catholic Church was part of the government when Ireland was for so long under the tyrannical British (not Catholic) hands, though (sorry if that offends Anglo-Americans!). Agreed, contraception was indeed a revolution for women, for men, and for everyone else. Richard Dougherty University of Dallas On Sun, Feb 16, 2014 at 6:52 PM, wrote: > With all due respect to those disputing the numbers, families of the size > I mentioned were not uncommon before contraceptives were widely available, > not just > among Catholic families, but also other families. It was particularly > common in Ireland, where the Catholic Church was part of the government. > > Contraception was a revolution for women. I will have nothing else to > add on this issue. > > Marci > > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Benjamin N. Cardozo School of Law > Yeshiva University > 55 Fifth Avenue > New York, NY 10003 > (212) 790-0215 > http://sol-reform.com > <https://www.facebook.com/professormarciahamilton?fref=ts> > <https://twitter.com/marci_hamilton> > > > > ___ 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
Two points of clarification that I think may be helpful: 1) One of the most important consequences of the HHS mandate is that a far greater number of Catholics now have a better idea of what the Church's teaching is on contraception and other life issues than they did before, which makes the imposition something of a mixed blessing. (Think here of *Kelo* and the sudden awakening to property rights on the part of some.) I don't know without looking it up the percentage of Catholics who know what the Church's teaching is on contraception, but it is quite low. That may raise other questions, though. 2) The absence of the use of contraceptives does not automatically produce 10-20 children in a marriage, even when the couple is open to that outcome. Almost never did before the introduction of contraceptives, and almost never does now. Richard Dougherty University of Dallas On Sun, Feb 16, 2014 at 3:20 PM, Marci Hamilton 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" > 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 > > > ___ 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: contraception cases: views of affected women
It's great that someone will be telling the story of the Little Sisters of the Poor. Richard Dougherty On Sun, Jan 5, 2014 at 12:16 PM, Greg Lipper wrote: > I'm not planning on getting involved in this broader debate over RFRA, > but I should add to Marci's point 2 below (about formal legal action by > women) that in the Notre Dame case, Americans United has moved to intervene > on behalf of three ND students who will lose contraception coverage if the > university prevails. (You can find a link to our motion here: > https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens > ) > > The proceedings in these cases have been artificial: the government and > the employers have been debating contraception, and the views of those > actually affected — the women who stand to lose contraception coverage as a > result — have not been heard. > > We're hoping to change that in the Notre Dame case, though as Marci > points out it will be difficult to replicate this effort more broadly > because of the significant risks (retaliation, threats, etc.) to coming > forward. > > Greg > > Gregory M. Lipper > > Senior Litigation Counsel > > Americans United for Separation of Church & State > > (202) 466-3234 x210 > > > ___ 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: The clergy-penitent privilege and burdens on third parties
I much appreciate Marci's comments. From the point of view of the free exercise of religion, the question for the believer, in my view, is what the effect of the revelation of confidential information is on the soul of the penitent, not what the legal consequences might be. Obviously the state has other concerns, but they need not clash, except at the margins (though that's what really counts). I agree that the fall-out of the abuse crisis in the Catholic Church has seen some try to claim privilege where no legitimate claim of privilege seems to be at stake. The dangers of doing so are multiple -- most importantly, more people are put at risk of future abuse, but it also undermines legitimate claims of privilege, as those entrusted with making judgments about its legitimacy find it harder to distinguish the genuine from the spurious. I'm not convinced that discussions in diocesan chanceries about how to avoid losses in court are part of the free exercise of religion. The abuse crisis in contemporary America (not, of course, confined to the Catholic Church) is painful for what it has done to so many who have suffered, and it has been devastating for the Church. Almost all of what I have seen has nothing to do with Confession or free exercise of religion, though, and here I support Marci's strong view of holding responsible those who have enabled abusers; while this would likely prevent subsequent abuse -- the most important consequence -- it would have the side effect of calling Catholics to abide by their own beliefs. Richard Dougherty University of Dallas On Sat, Dec 7, 2013 at 7:45 AM, Marci Hamilton wrote: > Richard's point is fair so let me provide some more context that perhaps > would be helpful. > > Privileges are concoctions of positive law dealing w what information can > be excluded in the judicial process. The confessional privilege is no > different than the attorney client privilege or the spousal privilege on > that score. Every faith invokes it or tries to to avoid disclosing legally > damaging evidence in the judicial process. The RCC and LDS are the most > active in lobbying to expand it in the state legislatures. > > It is always invoked in clergy sex abuse cases and to avoid mandatory > reporting of child sex abuse. Courts have had to struggle w the > distinction between counseling and confession for salvation purposes, > because when laws are violated, the exclusion of relevant evidence is to be > avoided. The privilege, depending on the state, belongs to the confessor > or confessee and always can be waived but how differs state to state. It > is routinely waived if the content is disclosed outside the one-on-one > confession. > > It is also routinely invoked to conceal information that was obtained > outside the confessional. > > It is my view that there should be an exception to it that parallels the > attorney client exception for future crimes or fraud. And that it should > not be an exception to mandatory reporting of child sex abuse. The > privilege is a permissive accommodation that we have learned has a > corrosive effect on children, families, churches, and society. Under > Smith it is not required and under a RFRA analysis it should not overcome > the needs of the judicial process or mandatory reporting laws. > > I offer these examples to contextualize the discussion. It only matters > when it is alleged a law has been broken so that law should be the > starting point for discourse. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > ___ 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: The clergy-penitent privilege and burdens on third parties
I will confess to not having read the state cases, or at least not most of them. But isn't the question *whether* the privilege is constitutionally required? (Perhaps the fact that it is referred to as a privilege muddies the waters.) If free exercise of religion includes receiving a sacrament, then why is compelling violation of the privilege not a constitutional issue? Indeed, I wonder why a recent discussion suggested stronger free speech claims than free exercise claims; does the First Amendment make that distinction? I have no doubt courts have read it that way, but that's partly why we get distortions of free exercise claims masquerading as free speech claims. Richard Dougherty University of Dallas On Fri, Dec 6, 2013 at 1:17 PM, wrote: > With all due respect to this entire thread, how many people have actually > read the state cases involving the priest-penitent privilege? There is a > level of abstraction > to this discussion that indicates to me probably not. As someone who has > actively been involved in arguing the issue in court in the last year, I'd > suggest that the law is > more reticulated and specific. state-by-state, than the speculation going > on here. It is state law, which means 50 states plus DC law, and it is a > privilege that is not constitutionally required, > particularly when the issue is whether the religious confessor or > confessee engaged in illegal behavior. > > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Benjamin N. Cardozo School of Law > Yeshiva University > 55 Fifth Avenue > New York, NY 10003 > (212) 790-0215 > http://sol-reform.com > <https://www.facebook.com/professormarciahamilton?fref=ts> > <https://twitter.com/marci_hamilton> > > -Original Message- > From: Christopher Lund > To: 'Law & Religion issues for Law Academics' > Sent: Fri, Dec 6, 2013 10:06 am > Subject: RE: The clergy-penitent privilege and burdens on third parties > > Again, I’m late—sorry about that. But honestly people, it’s shocking > how many posts are written between the hours of 9 p.m. and 7 a.m. Who can > keep up? > > So this may backtrack, but I’ve been thinking about the earlier posts in > this thread. Say there are no secular analogies to the priest-penitent > privilege. Does that, in itself, justify the conclusion that it is > favoritism for religion? > > ___ 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: Discrimination under Title VII and RFRA (was "Patently Frivolous")
The medications which are normally prescribed for birth control purposes, which we commonly call contraceptives, also have other uses, which uses may be perfectly harmonious with Catholic teaching. I am not aware of any prescription drug plan offered through a Catholic organization that does not cover such drugs for those uses; that's not to say they don't exist, but I am not aware of them. The drugs are prescribed the same way any drug is prescribed (i.e., no pre-approval by anyone), but the doctors and patients know/should know that they are only for those purposes, and not for contraceptive purposes. Enforcement of that understanding is of course variegated. The Catholic objection to the contraceptive mandate, then, as I understand it, has nothing to do with medications that are medically prescribed for medical conditions, but to medications prescribed as contraceptives (i.e, for voluntary lifestyle choices). I'd be happy to be corrected on any of this. Richard Dougherty University of Dallas On Wed, Nov 27, 2013 at 12:09 PM, Marci Hamilton wrote: > So how does it work? The women need pre approval from their boss? > > And I thought the bishops oppose the Pill and these are devout Catholics. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > > ___ 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: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
Ellis: This is very helpful, and I think largely right. I would need more convincing, though, on this particular point -- when does the government take cognizance of religion? And who makes the decision about when that has occurred? Is it sufficient for the government to say, "we are not taking cognizance of religion"? That, it seems, is a large part of the contemporary debate. Madison does say that the majority might trespass on the rights of the minority; surely he wouldn't say that they can avoid that simply by saying they are not doing trespassing on the rights of the minority? I think you are exactly right that he would not sanction across-the-board exemptions, especially if the exemptions did not promote republican liberty, including the protection of natural rights. A short follow-up on Douglas Laycock's point, too; it is true that Locke predated the founding, and thus his exclusion of Catholics and Muslims from civil society might not be germane, but many early state constitutions did prohibit Catholics from holding office, thus from being full citizens. Best, Richard Dougherty On Mon, Aug 19, 2013 at 3:10 PM, West, Ellis wrote: > Richard, The quoted passage below is so dense and complicated that I > will not attempt to do justice to it here. I would say just a few things. > First, the M&R was written in opposition to a law that would have, in > effect, established Christianity in Virginia. This passage needs to be > interpreted with that in mind. Second, there is no question but what > Madison is saying that humans should obey God above all else, and > presumably he would say they have a moral right to do that even when what > they think God commands conflicts with what government commands, i.e., they > have a right to engage in civil disobedience. Does that, however, mean > that he thought that government should not punish them for their > disobedience? After all, although Madison does not explicitly say it here, > I’m confident that he believes that good government is ordained by God in > order to protect our God-given rights to life, liberty, and property. In > other words, rulers, as well as private individuals, have a duty to render > to God certain kinds of behavior. This means that what the rulers think > God requires of them will sometimes conflict with what individuals think > God requires of them. Does Madison think that when that conflict occurs, > the individual or the minority will should trump the rulers’ or majority’s > will? Third, YES, he does, BUT ONLY when the government or majority > intentionally and explicitly takes a position on religious issues. To > avoid a conflict over religion, government should simply take no cognizance > of religion, and if it will do that, then “no man’s right” to religious > freedom will be abridged by civil society. Fourth, if Madison were arguing > here for a right to religion-based exemptions from valid, secular laws on > the grounds that they, too, abridge a man’s right to religious freedom, > then the only way that a man’s right to religious freedom could never be > abridged by government would be for the government to grant ALL > religion-based exemptions. Of course, no one, so far as I know, has ever > taken such a position, and it is beyond belief that Madison was intending > to take such a position. In short, it is difficult, if not impossible, to > reconcile the idea that Madison was arguing for religion-based exemptions > with his statement that “Religion is [or should be] wholly exempt from its > [civil society’s] cognizance.” > > ** ** > > Ellis M. West > > Emeritus Professor of Political Science > > University of Richmond, VA 23173 > > 804-289-8536 > > ew...@richmond.edu > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Richard Dougherty > *Sent:* Monday, August 19, 2013 2:05 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Harmony and the freedom of religion (RE: New Twist On > Challenge to ACA Contraceptive Mandate) > > ** ** > > ** ** > > I agree with much of what is said here, but don't think it fully captures > Madison's argument in the M&R. Here is what he says: > > The Religion then of every man must be left to the conviction and > conscience of every man; and it is the right of every man to exercise it as > these may dictate. This right is in its nature an unalienable right. It is > unalienable, because the opinions of men, depending only on the evidence > contemplated by their own minds cannot follow the dictates of other men: It > is unalienable also, because what is here a right towards men, is a duty > towards the Creator. I
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
I agree with much of what is said here, but don't think it fully captures
Madison's argument in the M&R. Here is what he says:
The Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is in its nature an unalienable right. It is
unalienable, because the opinions of men, depending only on the evidence
contemplated by their own minds cannot follow the dictates of other men: It
is unalienable also, because what is here a right towards men, is a duty
towards the Creator. It is the duty of every man to render to the Creator
such homage and such only as he believes to be acceptable to him. This duty
is precedent, both in order of time and in degree of obligation, to the
claims of Civil Society. Before any man can be considerd as a member of
Civil Society, he must be considered as a subject of the Governour of the
Universe: And if a member of Civil Society, do it with a saving of his
allegiance to the Universal Sovereign. We maintain therefore that in
matters of Religion, no man's right is abridged by the institution of Civil
Society and that Religion is wholly exempt from its cognizance. True it is,
that no other rule exists, by which any question which may divide a
Society, can be ultimately determined, but the will of the majority; but it
is also true that the majority may trespass on the rights of the minority.
That "religion is wholly exempt from its cognizance" means that the right
has been violated when the will of the majority transgresses that line.
Yes, there is no need for the two to conflict, but they might, and he
describes that as a "trespass" on the religious right, not a trespass on
the civil law. Thus the duty is "precedent...to the claims of Civil
Society."
It's a separate question, it seems to me, when the claim is made that
believers are exempt from what we call wholly secular laws (many believers,
of course, do not think there are such things). I wonder if you could
clarify for me what you mean by believers objecting to laws "for reasons
peculiar to their religion"; it's not a rhetorical question, I just don't
know. Do you mean for reasons peculiar *only* to their religion, or because
their religion has some extreme views about civil society, or something
else?
Best,
Richard Dougherty
On Sun, Aug 18, 2013 at 10:03 PM, West, Ellis wrote:
> Two responses: 1. The passage from Madison's M&R quoted below does not
support the proposition that he believed that religious freedom entails a
right to religion-based exemptions from valid, civil laws. What Madison is
saying (and what most other early American advocates of religious freedom
said) is that there is no need for government and religion to conflict with
one another ("in matters of religion no man's right is abridged by the
institution of civil society") provided government does not claim
jurisdiction over and legislate intentionally and directly on religious
matters (provided "religion is wholly exempt from its cognizance"). In
contrast to JM's position, the proposition that persons have a right to
religion-based exemptions is based on the assumption that conflict between
government and religion is unavoidable. In other words, if one accepts
Brad Pardee's understanding of religious liberty (see below) as not forcing
persons to choose between obeying their God and obeying civil laws, and
those laws include purely secular laws as well as laws dealing with
religion, then conflict is inevitable--not because the government intends
or creates it, but because religious individuals and groups, for reasons
peculiar to their religion, object to obeying the laws. I could also give
you other evidence from JM's writings to support my argument, but will not
do so here, unless I am asked for it.
> 2. That religious freedom meant freedom from laws dealing directly and
primarily with religion, and did not entail a right to religion-based
exemptions, was not only the original understanding of religious freedom,
but the understanding of the Supreme Court (and most of the people?) until
1963 (Sherbert v. Verner), and even then it was rejected only in theory and
not in reality, and thus Oregon v. Smith (1990) decided to "call a spade a
spade" and restored the original and historical understanding of religious
freedom.
>
> Ellis West
___
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Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
Actually I did reread the entirety, none of which contradicts the first paragraph. Certainly Madison was concerned about such abuse, though he of course was an unusual bird among the Founders (as was Jefferson). More importantly, the issue doesn't have anything to do with abusive clergy. The question on the table is free exercise and the law; the passage I cited from the Memorial is about as clear as anything one could possibly find, and refutes the claim that no one at the founding was concerned about the abuse of religious freedom by the law. Much more can be found in the Founders' Constitution selections; in particular, the view that non-establishment (at the national level) was routinely seen as a way of ensuring the free exercise of religion at the state level (even if only sometimes the Protestant religion). But, again, I don't see how this would matter for anyone not an originalist. Richard Dougherty On Sun, Aug 18, 2013 at 8:19 PM, Marci Hamilton wrote: > Reread the entirety of the memorial. > Madison was very concerned about the abusive power of the clergy. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Aug 18, 2013, at 6:20 PM, Richard Dougherty wrote: > >> I would think that this would be a matter of significance only for >> those who afford some degree of significance to a jurisprudence of >> original intent. >> >> But if one does take such matters seriously, I would suggest that it >> is hard, indeed impossible, to read James Madison's Memorial and >> Remonstrance as not protecting the free exercise of religion, and not >> simply against the interference of what one might consider >> liberty-denying religion. Just one passage, from the first paragraph: >> "We maintain therefore that in matters of Religion, no man's right is >> abridged by the institution of Civil Society and that Religion is >> wholly exempt from its cognizance." >> >> Richard Dougherty >> >> On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis wrote: >>> >>> I fear that many of you will think I am pompous, if not arrogant, in saying >>> what follows, but I feel compelled to respond to Brad Pardee's post. For >>> years now, I have been reading all the posts on this blog, most of which >>> have dealt with the issue of when, on the basis of religious liberty, >>> persons have a right to be exempt from having to obey valid secular that >>> persons generally have to obey. Recently, I find myself just shaking my >>> head, because the debate goes on and on, and will continue to do so, >>> because there is simply no clear answer to the question. The sad thing >>> about the debate is that as it has been structured, it is so unnecessary. >>> Of course, if legislatures want to exempt certain persons from certain laws >>> on the basis of certain criteria, that is their prerogative. The debate on >>> this blog, however, has been based on the assumption that religious >>> freedom, at least under certain circumstances, gives persons a right to be >>> exempt from obeying valid civil law! s. More specifically, too many entries assume, along with Brad, that "the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government" and "[t]hat's certainly at the heart of free exercise." >>> >>> If, however, Brad is referring to the free exercise of religion guaranteed >>> in the First Amendment, then his understanding of religious freedom is way >>> off base. Based on a thorough review of the historical evidence, I am >>> finishing a book on the original meaning of the free exercise clause, and I >>> have yet to find any early American advocate of religious liberty, except >>> for some Quakers, who understood it as meaning that persons could not be >>> forced to choose between obeying their God and obeying their government. >>> (There may be such persons, but I have not found them.) The issue of >>> religion-based exemptions from valid laws was simply not on their minds, >>> and they did not address it explicitly. Rather the all-consuming issue was >>> that of establishments of religion, and freedom of religion meant freedom >>> from such establishments and all laws associated with them, i.e., freedom >>> from laws whose primary purpose was to favor one religion, religious belief >>> or practice, over anothe! r or to discriminate for and against persons because of their religion. Stated differently,
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
I would think that this would be a matter of significance only for those who afford some degree of significance to a jurisprudence of original intent. But if one does take such matters seriously, I would suggest that it is hard, indeed impossible, to read James Madison's Memorial and Remonstrance as not protecting the free exercise of religion, and not simply against the interference of what one might consider liberty-denying religion. Just one passage, from the first paragraph: "We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance." Richard Dougherty On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis wrote: > > I fear that many of you will think I am pompous, if not arrogant, in saying > what follows, but I feel compelled to respond to Brad Pardee's post. For > years now, I have been reading all the posts on this blog, most of which have > dealt with the issue of when, on the basis of religious liberty, persons have > a right to be exempt from having to obey valid secular that persons generally > have to obey. Recently, I find myself just shaking my head, because the > debate goes on and on, and will continue to do so, because there is simply no > clear answer to the question. The sad thing about the debate is that as it > has been structured, it is so unnecessary. Of course, if legislatures want > to exempt certain persons from certain laws on the basis of certain criteria, > that is their prerogative. The debate on this blog, however, has been based > on the assumption that religious freedom, at least under certain > circumstances, gives persons a right to be exempt from obeying valid civil > laws. More specifically, too many entries assume, along with Brad, that "the > essence of religious freedom is that a person is not forced to choose between > obeying their God and obeying their government" and "[t]hat's certainly at > the heart of free exercise." > > If, however, Brad is referring to the free exercise of religion guaranteed in > the First Amendment, then his understanding of religious freedom is way off > base. Based on a thorough review of the historical evidence, I am finishing > a book on the original meaning of the free exercise clause, and I have yet to > find any early American advocate of religious liberty, except for some > Quakers, who understood it as meaning that persons could not be forced to > choose between obeying their God and obeying their government. (There may be > such persons, but I have not found them.) The issue of religion-based > exemptions from valid laws was simply not on their minds, and they did not > address it explicitly. Rather the all-consuming issue was that of > establishments of religion, and freedom of religion meant freedom from such > establishments and all laws associated with them, i.e., freedom from laws > whose primary purpose was to favor one religion, religious belief or > practice, over another or to discriminate for and against persons because of > their religion. Stated differently, the no establishment and free exercise > clauses were simply two different ways of saying the same thing. To the > extent that early Americans implicitly addressed the issue, they emphasized > that religion could not be used as an excuse for obeying valid civil laws. > Only some Quakers would have agreed with Brad's understanding of religious > freedom, but as I showed years ago in an article in the Journal of Law and > Religion, when they attempted to get Pennsylvania to add a provision to its > constitution that would reflect their understanding, it was rejected. > Finally, contrary to what Brad says, the philosophy behind religious freedom > is not the same as the philosophy behind conscientious objection. The former > pertains to what the government should not do, whereas the latter pertains to > whether an individual should follow his conscience regardless of what others, > including the government, may do to him or her. > > Ellis M. West > Emeritus Professor of Political Science > University of Richmond, VA 23173 > 804-289-8536 > ew...@richmond.edu > > -Original Message- > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee > Sent: Friday, August 16, 2013 2:36 PM > To: 'Law & Religion issues for Law Academics' > Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to > ACA Contraceptive Mandate) > > I'm not certain that this is a correct understanding of the purpose of > freedom of religion. It's always been my understanding that the essence
Re: Marriage -- the Alito dissent
Well, much of the most interesting work on natural law thinking of the past 20-30 years has been done by non-Catholics, some indeed by non-Christians. I am genuinely surprised that someone of Judge Posner's erudition wouldn't be aware of that. RD On Sat, Jun 29, 2013 at 3:31 PM, Malla Pollack wrote: > with all due respect. Only a Catholic would contend that this view is > "natural law." > Malla > > > On Sat, Jun 29, 2013 at 3:18 PM, Richard Dougherty wrote: > >> I understand why it can seem that way, but history can't make a >> nonsectarian view sectarian. The claim that the majority -- but not all -- >> of the arguments one hears are sectarian is per se evidence that it is not >> sectarian. There is a reason why the arguments track, but are not derived >> from, Vatican teaching, and that is that the Vatican teaching is largely >> drawn from philosophical principles, not theological ones. The natural law >> is the common source. >> >> Richard Dougherty >> >> On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton < >> hamilton.ma...@gmail.com> wrote: >> >>> At this stage in history, Alito's view is in fact decisively sectarian. >>> The vast majority of opposition is theological w theological sources. That >>> is the political reality. And his sources and arguments are derived >>> directly from Vatican doctrine. >>> >>> Marci A. Hamilton >>> Verkuil Chair in Public Law >>> Benjamin N. Cardozo Law School >>> Yeshiva University >>> @Marci_Hamilton >>> >>> >>> >>> On Jun 29, 2013, at 12:10 PM, Richard Dougherty >>> wrote: >>> >>> >>> Well, I don't know what Alito may say about Posner's characterization, >>> but I'm guessing he would not embrace the view he forwarded as "emotional >>> and sectarian, rather than rational." Indeed, I'm finding it hard to >>> imagine that anyone would characterize their own view that way. (Well, >>> maybe Westboro Baptist, but Alito is not of that persuasion, I would >>> imagine.) While it may be true that the view he suggests is close to the >>> Vatican's view (which Posner derisively calls its "sex doctrine"), it is >>> also the dominant view of marriage over the past thousands of years. >>> There's nothing necessarily sectarian about it, and it's certainly not >>> non-rational. It might not be persuasive to all, or to many, but it would >>> be an injustice to dismiss it so cavalierly. >>> Richard Dougherty >>> On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman < >>> lederman.ma...@gmail.com> wrote: >>> >>>> As a couple of you have pointed out to me, Judge Posner has addressed >>>> the Alito dissent; in Slate ( >>>> http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), >>>> he writes: >>>> >>>> >>>> >> ___ >> To post, send message to conlawp...@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >> >> 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
Marty: Agreed. I take it Alito is asserting the non-policymaking principle on behalf of the judiciary. But you are certainly right that even such a position does not prohibit the kind of judgment you identify here. Richard Dougherty On Sat, Jun 29, 2013 at 11:40 AM, Marty Lederman wrote: > Fair enough, Richard -- I can't of course speak for Posner, but I > shouldn't have suggested that Alito views opposition to same-sex marriage, > and to federal benefits for gay couples, as necessarily "emotional and > sectarian." What I meant to refer to was the fact that Alito thinks this > is a question that philosophers, historians, social scientists, > theologians . . . and *legislatures *are capable of examining, but that > is "intractable to typical judicial processes of decisionmaking." (Of > course, one of my initial points was that this is a non sequitur: Just > because courts, *like* legislatures, cannot resolve the question of what > the "true" or "intrinsic" nature of marriage is, does not mean that they > cannot assess what legislatures have in fact done (and why) *on behalf of > the state *in terms of defining marriage, something that is common fodder > for the "judicial processes of decisionmaking.") > > > On Sat, Jun 29, 2013 at 12:10 PM, Richard Dougherty wrote: > >> >> Well, I don't know what Alito may say about Posner's characterization, >> but I'm guessing he would not embrace the view he forwarded as "emotional >> and sectarian, rather than rational." Indeed, I'm finding it hard to >> imagine that anyone would characterize their own view that way. (Well, >> maybe Westboro Baptist, but Alito is not of that persuasion, I would >> imagine.) While it may be true that the view he suggests is close to the >> Vatican's view (which Posner derisively calls its "sex doctrine"), it is >> also the dominant view of marriage over the past thousands of years. >> There's nothing necessarily sectarian about it, and it's certainly not >> non-rational. It might not be persuasive to all, or to many, but it would >> be an injustice to dismiss it so cavalierly. >> Richard Dougherty >> On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman < >> lederman.ma...@gmail.com> 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.
Re: Marriage -- the Alito dissent
I understand why it can seem that way, but history can't make a nonsectarian view sectarian. The claim that the majority -- but not all -- of the arguments one hears are sectarian is per se evidence that it is not sectarian. There is a reason why the arguments track, but are not derived from, Vatican teaching, and that is that the Vatican teaching is largely drawn from philosophical principles, not theological ones. The natural law is the common source. Richard Dougherty On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton wrote: > At this stage in history, Alito's view is in fact decisively sectarian. > The vast majority of opposition is theological w theological sources. That > is the political reality. And his sources and arguments are derived > directly from Vatican doctrine. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Jun 29, 2013, at 12:10 PM, Richard Dougherty > wrote: > > > Well, I don't know what Alito may say about Posner's characterization, but > I'm guessing he would not embrace the view he forwarded as "emotional and > sectarian, rather than rational." Indeed, I'm finding it hard to imagine > that anyone would characterize their own view that way. (Well, maybe > Westboro Baptist, but Alito is not of that persuasion, I would imagine.) > While it may be true that the view he suggests is close to the Vatican's > view (which Posner derisively calls its "sex doctrine"), it is also the > dominant view of marriage over the past thousands of years. There's > nothing necessarily sectarian about it, and it's certainly not > non-rational. It might not be persuasive to all, or to many, but it would > be an injustice to dismiss it so cavalierly. > Richard Dougherty > On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman > wrote: > >> As a couple of you have pointed out to me, Judge Posner has addressed the >> Alito dissent; in Slate ( >> http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), >> he writes: >> >> >> ___ 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
Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as "emotional and sectarian, rather than rational." Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its "sex doctrine"), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman wrote: > As a couple of you have pointed out to me, Judge Posner has addressed the > Alito dissent; in Slate ( > http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), > he writes: > > Alito is drawn to such arguments for DOMA as “the institution of marriage > was created for the purpose of channeling heterosexual intercourse into a > structure that supports child rearing,” and “marriage is essentially the > solemnizing of a comprehensive, exclusive, permanent union that is > intrinsically ordered to producing new life, even if it does not always do > so.” The first argument would have force only if one supposed (as virtually > no one does any longer) that banning same-sex marriage would channel gays > into straight marriages. The bearing of the second argument (a close > paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is > intrinsically ordered to producing new life, even if it does not always do > so. So what? A marriage of a man to a woman known to be sterile could not > be thought intrinsically ordered to producing new life, yet it would surely > be recognized by Alito as a valid marriage entitled to federal marital > benefits. *So far as yet appears, opposition to same-sex marriage, and to > federal benefits for gay couples, is emotional and sectarian, rather than > rational.* > > I'm not sure this is quite responsive to Alito, because I'm not sure Alito > would disagree: As I read his dissent, his view is that *because *opposition > to same-sex marriage, and to federal benefits for gay couples, is indeed > "emotional and sectarian, rather than rational" (not quite how Alito would > put it, of course, but basically his point), courts cannot assess it . . . > but legislatures can and must do so. > > > On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman > wrote: > >> I'm surprised there hasn't been more attention paid to the quite >> remarkable dissent that Justice Alito filed in Windsor. In it, he >> contrasts "two competing views of marriage": what he calls the "conjugal" >> view, in which marriage is the "solemnizing of a comprehensive, exclusive, >> permanent union that is intrinsically ordered to producing new life, even >> if it does not always do so" (citing Robby George); and the “consent-based” >> concept of marriage, "a vision that primarily defines marriage as the >> solemnization of mutual commitment—marked by strong emotional attachment >> and sexual attraction—between two persons." As Alito notes, "At least as >> it applies to heterosexual couples, this [consent-based] view of marriage >> now plays a very prominent role in the popular understanding of the >> institution. Indeed, our popular culture is infused with this understanding >> of marriage." [Just as an aside: What is the purpose and implication of >> his adding "At least as it applies to heterosexual couples"?] >> >> Altio's view is that the judiciary can't possibly give preference to one >> or the other of these two views: "Windsor and the United States implicitly >> ask us to endorse the consent-based view of marriage and to reject the >> traditional view, thereby arrogating to ourselves the power to decide a >> question that philosophers, historians, social scientists, and theologians >> are better qualified to explore. [FN7 -- on which more below] Because our >> constitutional order assigns the resolution of questions of this nature to >> the people, I would not presume to enshrine either vision of marriage in >> our constitutional jurisprudence." >> >> Legislatures, on the other hand, apparently can do so: "Legislatures, >> however, *have little
Re: Parental rights and physical conduct
I am with Paul in my confusion, and will add only a further question. If we accept the principle that the best interests of the child prevails, does that mean that judges and not parents will always have the decisive say? (As a parent, for example, I think I am always acting in the best interest of my children, even when -- indeed, especially when -- they don't know it!) Might be worth thinking about this story, about the judge "ordering" (not really accurate) a mother to cut her daughter's hair: http://www.deseretnews.com/article/865557954/Judge-orders-Price-woman-to-cut-off-daughters-ponytail-in-court.html Richard Dougherty On Fri, Jul 6, 2012 at 10:22 AM, Paul Horwitz wrote: > > This has been a very interesting discussion. I confess that at this point, > I am quite confused about the meaning of "best interests of the child." I > understand it is a complex, context-driven, and multivalent test. But it > would certainly help to understand the foundational values and defaults > here and what interests are considered admissible or inadmissible. In some > sense, the thinner the exposition of the test becomes, the more I wonder > what thick assumptions underlie it. Take, for instance, the claim that " > [m]any would argue that it is in the "best interest of the child" to > welcome him into a supportive, religious community with shared values and > age-old historic traditions," and the response that "[t]he question is what > is in the interest of this child today." It's my own fault, I'm sure, but > I'm having trouble figuring out exactly where this leaves us. Is it that it > may be in the interest of the child today to welcome him into a supportive > religious community but that it is not dispositive, or that the fact that > the community is well-established and has shared values is not dispositive > of the child's best interests? Is it that the possibility of a supportive > religious community should never be relevant as between two possible > custody dispositions? Is it an empirical question to be decided in each > case? If it is potentially relevant but we acknowledge that some religious > communities may risk harm to the child, what counts as harm? Only serious > physical/emotional harm, or any suboptimal outcome, and by what definition > of optimization? I'm not asking to be made an expert in family law > overnight, but I can't help but feel that "the best interests of the child" > is the beginning rather than the end of the discussion, and I would welcome > some--indeed, any--clarification. > > Best wishes, > > Paul Horwitz > University of Alabama School of Law > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and child sexual abuse
Fascinating discussion, from which I am learning a lot. As a non-expert, it strikes me that Marci's account is akin to what I hear from family law attorneys dealing with divorce or child-custody cases -- that it is routine practice to make claims of spousal or child abuse, but that judges almost never take such claims seriously. So, yes, it might make it more complicated to deal with such cases, and it might diminish response to real cases of abuse, but it's unclear that it affects many cases, as I understand it. Richard Dugherty On Fri, Jun 15, 2012 at 11:27 AM, Marci Hamilton wrote: > To be sure church autonomy arguments outpace RFRA arguments, but less > than half the states have rfras > I don't actually get Doug's point -- a RFRA is irrelevant if it is not the > dispositive issue in most cases? It adds a layer of argument in these > cases. And from the perspective of child protection, it is bad policy. > > In any event, Marty has under reported the prevalence of these issues in > child sex abuse cases. For a summary of the cases and issues, see my cert > petition in John Doe AP, which I have posted on my Cardozo web page > > > http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf > > For the most recent case, see the Tennessee Supreme Court decision, Redwing > v. Catholic Bishop for the Diocese of Memphis > > > > - > > > On Jun 15, 2012, at 11:31 AM, "Douglas Laycock" > wrote: > >Martin Nussbaum’s response on the alleged prevalence of state RFRA > arguments and church autonomy arguments: > > ** ** > > My previous comments were not about the bankruptcies where federal law, > the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and > sometimes prevail. > > ** ** > > Second, it is one thing to plead an affirmative defense. It is quite > another to file a dispositive motion. Professor Hamilton writes, "Just > this week I have seen autonomy argued in Illinois, Hawaii, and California > cases." If she "saw" the arguments, there must be briefs. Might she share > those three briefs with the group? > > ** ** > > The information I have suggests that counsel, at least in Hawaii and > California, are not filing dispositive motions arguing that the church > autonomy doctrine bars ecclesiastical negligent supervision claims. Last > evening, the leading ecclesiastical defense counsel in California (who has > himself handled over 500 cases and who is daily communications with others > from that defense bar) told me that he is unaware of defense counsel in > California filing dispositive motions contending that tort liability is > precluded by the church autonomy doctrine. I suspect that the practical > unavailability of a church autonomy argument against negligent > ecclesiastical supervision claims in California has something to do with > Church defendants paying out around $1.5 billion in settlements in that > state. The leading ecclesiastical defense counsel in Hawaii also informed > me that he is unaware of church autonomy arguments being briefed in Hawaii > to bar ecclesiastical negligent supervision claims. I have not recently > conferred with church counsel in Illinois. > > ** ** > > Finally, Professor Hamilton only claims that state RFRAs are plead, not > argued, in those states with such laws. This is consistent with what I've > seen. > > ** ** > > Martin Nussbaum > > ** ** > > ** ** > > PLEASE TAKE NOTICE, the information contained in this electronic > communication and any document attached hereto or transmitted herewith, > including metadata, is attorney-client privileged, work product, private or > otherwise confidential, and is intended for the exclusive use of the > individual or entity named above. The information transmitted in this > e-mail and any attachment is intended only for the personal and > confidential use of the intended recipients and is covered by the > Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. If the reader > of this message is not the intended recipient or the employee or agent > responsible for delivering it to the intended recipient, you are hereby > notified that any examination, use, dissemination, distribution, or copying > of this communication or any part thereof is strictly prohibited. If you > have received this communication in error, please immediately notify the > sender by telephone or reply e-mail and delete this communication. You are > further notified that all personal messages express views solely of the > sender which are not to be attributed to Rothgerber Johnson & Lyons LLP and > may not be copied or distributed without this disclaimer. > > ** ** > > ** ** > > 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: > religionl
Re: Point of Information -- not quite on topic
The Catholic Leagues that I am familiar with are confined to competing teams from Catholic schools (this would normally be grade schools and middle schools). A not insignificant number of students at such schools are not Catholic, but I don't know how or whether they accommodate individuals. I'd be surprised if there wasn't some accommodation, though locally administered. But this does relate to another point brought up earlier. Catholic high schools have routinely held sporting events on Sunday, which might prove problematic for some/many non-Catholics. Richard Dougherty On Tue, Mar 6, 2012 at 11:42 AM, Marty Lederman wrote: > " the Maccabiah Games feature only Jewish athletes." > > Nope. See http://www.ynetnews.com/articles/0,7340,L-332,00.html > > It's open to all Israeli citizens without regard to religion, and to Jews > who are not citizens (presumably because they have an automatic right of > citizenship, although I don't know that for a fact). > > I'd also be very, very surprised if many "Catholic Leagues" exclude > participants based on religion; perhaps they're confined to certain church > teams, or students from Catholic schools, etc. -- but an actual personal > religious test for individuals? > > On Mon, Mar 5, 2012 at 10:06 AM, Marci Hamilton wrote: > >> There is significant precedent for one-religion sporting events, which >> I assume everyone agrees is fine.Catholic Leagues exist in numerous >> cities And the Maccabiah Games feature only Jewish athletes. >> >> TAPPs' first mistake appears to have been opening itself up to religious >> organizations with different religious needs and demands. >> >> Marci >> >> > ___ > 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: RFRA substantial burden analysis
Marty, et al: Just a quick note on the question of material cooperation and the long (and interesting) link to the Boston Globe article below. I don't know all of the theologians cited in the article, but I know of many of them. The ones I do recognize all favor contraception and abortion rights, so I don't think one can use them as representative of Catholic teaching. Thus the wisdom in Douglas Laycock's point some messages ago, that the bishops properly speak for the Church. (What happens when the bishops get it wrong? Ah, interesting question, but not a legal one.) That doesn't entirely settle the question, of course. Richard Dougherty On Tue, Feb 14, 2012 at 8:18 AM, Marty Lederman wrote: > What Chip and I -- see my Mirror of Justice post here: >> http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-question-from-marty-lederman.html >> -- >> have been trying to get at is that the state should not simply accept *as >> a given* that "the College’s sincerely held religious beliefs prohibit >> it from providing coverage for contraception, sterilization, abortion, or >> related education and counseling." >> >> It's not that the state (or Chip or I) has a better understanding of >> Catholic doctrine than does the hypothetical Catholic employer -- far from >> it. But what the state does know is that every person's or employer's >> dollars and other resources are used, every day, in various and sundry ways >> (through taxes, wages paid, etc.), to support conduct that the person in >> question believes is sinful, particularly when the particular use of the $$ >> are determined not by the person (employer) herself, but by another to whom >> she transfers the money -- in this case, the employee, whose independent >> choice of how the $$ will be used breaks the chain of responsibility and/or >> endorsement of the employer whose $$ they once were, just as the State of >> Ohio was not responsible for the religious education funded by the vouchers >> in *Zelman* and just as the school district in *Mergens* was not >> responsible for, and did not endorse, the religious content of the student >> activities compelled by the Equal Access Act. The employee can and does, >> for example, use the employer's wages, phones, and computers to procure >> contraception . . . and abortions. And the state uses the employer's tax >> dollars to do many things that the employer would not itself do because of >> moral or religious injunctions -- just as it regularly uses my dollars, >> and yours, in ways that we find religiously or otherwise indefensible. >> >> More to the point, in all these other contexts, the employers in question >> do not *act *as though their "sincerely held religious beliefs prohibit" >> them from allowing their resources to be used for "contraception, >> sterilization, abortion, or related education and counseling." They do >> little or nothing to stop these myriad uses; indeed, in states where they >> are not even required to offer health insurance plans to their employees, >> many such employers make such plans available to their employees, even when >> state law requires that *if* a plan is offered, it must include >> contraception coverage. >> >> This is not to say that they are being insincere. But it is to suggest >> that their conduct does not reflect, and indeed may undermine, the notion >> that the HHS reg would impose a *substantial* burden on their religious >> exercise, one that the employer is willing to incur meaningful costs in >> order to avoid in virtually all other contexts. And yes, I am suggesting >> -- and this is also what I understood Chip's posts to suggest -- that the >> RFRA "substantial burden" question should be tested, at least in part, by >> looking to the objective evidence of how the claimed religious objection >> has affected the conduct of the objector in analogous circumstances. (In >> a recent piece, Kent Greenawalt likewise suggests that the state should >> reserve permissive accommodations for individuals who "would rather undergo >> (or believe that she should be willing to undergo) serious hardship >> rather than perform the act in question." "We do not think a person is >> a genuine conscientious objector to military service," he writes, "if he >> thinks >> performing that service is preferable to spending two months in jail. We >> do not think that someone is a conscientious objector to jury service if >> she thinks doing jury duty is preferable to paying a fine of $200." I'm >> not s
Re: RFRA substantial burden analysis
Sorry, I wasn't clear in what I meant by "get it wrong"; not that the bishops might misrepresent what the democratic faithful wish for, but that they might not adequately/fully/appropriately represent the Catholic Church's teaching. The Church hierarchy, as I see it, doesn't purport to speak for the individual members of the Church in this regard. Richard Dougherty On Tue, Feb 14, 2012 at 11:21 AM, Malla Pollack wrote: > That the Bishops may "get it wrong" is very important. The central > religious liberty rights here are those of the people -- i.e. both the > employees and the members of the Catholic Church. Therefore, I have > severe democracy problems with allowing members of an unelected > hierarchy to speak "for" the members of the church in the sense of > objecting on the grounds of the members' religious liberty to an > action required of the organization (not the individual members). > This problem is especially strong here because of the data (mentioned > earlier in this thread) that a majority of members of the Catholic > Church are not against contraception. > > Malla > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RE:
I thnk Marc is right about this. And I think it would be difficult to show a compelling interest -- indeed, I think it would be difficult to show a rational interest, given what we know about such matters.Richard J. Dougherty -Original Message- From: "Marc Stern" Sent 2/24/2010 9:03:31 AM To: "Law & Religion issues for Law Academics" Subject: RE:I think the case is more complicated than Tom describes.In Board of Education v. Allen,the textbook loan case,the Court pointed out that the Meyer- Pierce line of cases should not be read to deny states very substantial authority over what is taught in private religious schools. Since then, the lower courts have struggled to divine how broad that power is, and how to reconcile it with the teachings of Pierce,Meyers and Barnette (No official,high or petty,etc).The results are a jumble,although courts (in the 1980's.in the burst of litigation accompanying the growth of Christian schools) did resist allowing states to impose the public school curriculum wholesale on religious schools.With this in view, its appears at least possible that a state might be able to insist on its own version of sex education, but could not -for the reasons Tom laid out as well as Barnette-stop schools from expressing their own contrary views.What is troubling about the British fight is that many want to deny schools that right. Paul's comment suggesting that forcing knowledge on people is no violation of their religious liberty is in fact reflective of the results courts reach, holding such exposure is no burden on liberty.They so held even before Smith..I do not understand why such exposure cannot be a burden on religious liberty, albeit one that might in some circumstances be justified by a compelling interest.MarcFrom: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul FinkelmanSent: Tuesday, February 23, 2010 7:43 PMTo: Law & Religion issues for Law AcademicsSubject: Re: The result? Our teen pregnancy rate might drop; the STD rate among teens would drop; the HIV/AIDS rate would drop; and the abortion rate would drop. Presumably, all of these are things religious conservatives favor. However, some they would complain that by forcing knowledge on students the government was somehow violating their religious beliefs. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com --- On Tue, 2/23/10, Marc Stern wrote: From: Marc Stern Subject: To: religionlaw@lists.ucla.edu Date: Tuesday, February 23, 2010, 7:24 PMHere is a link to a fight in england over a bill requiring sex ed in all schools including religious ones. Under the bill as reported here,schools could not teach premarital sex was wrong What result if passed here in us? Marc sternhttp://www.google.com/url?sa=X&q=http://www.guardian.co.uk/commentisfree/2010/feb/23/sexually-confused-sex-education-faith-schools&ct=ga&cd=yVg0Ek2Zmiw&usg=AFQjCNFc-vZ5I1oIJnw3T__bLEs-xZYl7w - Original Message - From: religionlaw-boun...@lists.ucla.edu To: 'Law & Religion issues for Law Academics' Sent: Mon Feb 01 16:21:57 2010 Subject: Comments on Jim Ryan's "Smith and the Religious Freedom RestorationAct: An Iconoclastic Assessment," 78 Va. L. Rev. 1407 (1992)? Folks: I’m working on the Fourth Edition of my Academic Legal Writing textbook, and I wanted to add a chapter that contains an entire highly successful student Note – minus most footnotes – coupled with running commentary on why each section of the Note works (and, in some instances, how it might have been improved). I figured that I already give students plenty of examples of bad writing, but they needed an example of excellent writing, together with an analysis of what makes it excellent. The Note that I chose is Jim Ryan’s Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407 (1992). I like it a lot myself; I’ve heard good things about it from others; and I see that it has been cited over 120 times by law reviews articles. But I’d also like to include some anonymous quotes from scholars in the field, who briefly explain why they think this article is good. This, I think, will dovetail nicely with my own explanation of what I think the article does very well. (Quotes pointing to some weaknesses in the article would also be fine; I will mostly praise the article, but I’ll probably include some thoughts on how it could have been made still better.) If you recall the articl
Re: Conflicts between religious exercise and gay rights
Well, yes, but this operates on the presumption that there is agreement on, among other things, what constitutes discrimination and what constitutes public accomodation. But it seems that those are precisely the issues at stake here. We can't simply say the law defines these terms, though, because the law defined them under Jim Crow, too, and we rightly abandoned that system.Richard Dougherty -Original Message- From: "Engelken, Sheri" <[EMAIL PROTECTED]> Sent 8/5/2008 11:02:50 AM To: "Law & Religion issues for Law Academics" Subject: Conflicts between religious exercise and gay rightsReligious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar "choice" position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told "we don't serve blacks here" and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law & Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and "cudgels" As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, "Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. " Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and "cudgels" Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they "could get such services -- often at a higher quality -- just fine from lots of other providers." ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympat
Re: Conflicts between religious exefcise and gay rights
Mark is of course right about this. But I wonder if we might distinguish the two issues, as we might distinguish questions of racial discrimination generally from questions of gay rights -- including the question of whether there is Scriptural support for slavery, racial discrimination, racial integration, sex discrimination, and sexual orientation discrimination. And to Marty's point, I think Eugene has begun to point out the way in which this issue is something quite more than whether one is "uncomfortable" with gay marriage. It might be more akin to whether a health care provider (or, say, Catholic Charities) might be be coerced into violating a prohibition against contraception or abortion.Richard Dougherty -Original Message- From: "Mark Tushnet" <[EMAIL PROTECTED]> Sent 8/4/2008 1:27:41 PM To: "Law & Religion issues for Law Academics" , "Law & Religion issues for Law Academics" , "Law & Religion issues for Law Academics" Subject: RE: Conflicts between religious exefcise and gay rightsIn connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? -- Original message -- From: "Brownstein, Alan" <[EMAIL PROTECTED]> > If we are talking about conflicts between gay rights and religious liberty, > surely this is a coin that has two sides to it. Many gay people see religion > as > a sword that is being used to burden their liberty and equality rights. What > we > have are two groups claiming basic autonomy rights with each seeing the other > side as a threat to be feared, rather than as people with basic liberty > interests that need to be accommodated. When we have one side of the debate > arguing that to avoid potential conflicts with religious liberty, gay people > should be denied the right to marry or to be protected against discrimination > in > housing or employment, it is hardly surprising that the other side of the > debate > is going to offer little sympathy to requests for religious accommodation. > > I continue to believe that while there will be some real conflicts between > religious liberty and gay rights in some circumstances, at a deeper level > these > two assertions of autonomy rights can and should be positively reinforcing > each > other. Sometimes this happens inadvertantly. The Equal Access Act has helped > gay > and lesbian clubs be recognized at schools. But this was done over the > opposition of people who insisted that freedom of association and speech for > religious students should not be extended to gay students. To have the mutual > reinforcement of autonomy rights (that I think is possible) happen at a > broader, > practical level, however, there would have to be some commitment to compromise > from both sides. > > Minor sh
Re: Appeals Court Bans Prayer 'in Jesus' name'
I think the interesting question in regard to Marsh -- for the sake of the argument presuming it has failed -- is why it has failed: because sectarians are willing to use it as a means of coercing others into accepting their religious prayers and pronouncements, or because secularists are unwilling to accept any religious display as unobjectionable? Or maybe a bit of both? Richard Dougherty -Original Message- From: "Christopher Lund" <[EMAIL PROTECTED]> Sent 7/25/2008 9:16:51 AM To: religionlaw@lists.ucla.edu, [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'"That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: A judge preferring the more religious parent
Just on Marty's first point -- and this might be off-list material: there is abundant evidence that religion has a positive influence on the family and the social order. Though I do only some work in this area, I have never seen an empirical study that suggests otherwise (if others have I'd be interested in the link). Here is one summary of the current state of the question -- some might dismiss it because it's from the Heritage Foundation, but Fagan is here summarizing the literature, not producing his own study. (And I think one can say that Heritage is not a particularly "religious" organization, though undoubtedly conservative.)http://www.heritage.org/Research/Religion/bg1992.cfm But...I will add a caution, that might be pertinent to this discussion. The most common denominator in divorce, acording to many studies, is religious intermarriage (next is cohabitation before marriage). What this might mean for Marty's second point, about Madison, I'll leave alone for now.Richard Dougherty -Original Message- From: <[EMAIL PROTECTED]> Sent 1/25/2008 2:26:18 PM To: "Law & Religion issues for Law Academics" , "Law & Religion issues for Law Academics" Cc: "Volokh, Eugene" <[EMAIL PROTECTED]> Subject: Re: A judge preferring the more religious parentGood question. We've been over this before in other contexts. First of all -- is it really the case that there's empirical evidence (as opposed to a judicial assumption based on anecdote) that a religious upbringing is more likely to keep a child out of trouble? Religious cultures, after all, tend not to be more virtuous than those that are more secular. If there is no such actual evidence, then I think the EC tends to disfavor reliance on "casual empirical observation" about the relative *secular* virtues of adhering to religion or not. It's simply too likely that such "casual" observations will track unproven assumptions about the way religion (or religious belief) "works" -- including from actors who have no interest in religious "truth," as such. This is basically the issue that often arises with charitiable choice -- government decisionmakers abjure any views on the "truth" of religious belief, but favor preferential funding of religion based on a widely held assu! mption, supported by "casual empirical observation," that religion is correlated with successful resistance to addiction, avoiding unemployment, etc. (Bush said as much in a SOTU speech a few years back trying to justify preferences for funding religious providers -- "I've seen it work with my own eyes" -- which we discussed here.) Ah, but what about if the empirical evidence actually *does* support a correlation, a *causal* correlation, at that, between religious piety (or belief) and some secular virtue (e.g., kindness, abiding by the law, etc.). Well, then we're back to paragraph five of the Memorial and Remonstrance. To the extent one thinks the M&R is or should be a guide to "proper" construction of the religion clauses, Madison says there not only that the Civil Magistrate cannot be "a competent Judge of Religious Truth," but *also* that he may not "employ Religion as an engine of Civil policy." "The first," writes Madison, "is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation." I find this question fascinating -- and certainly under-examined in the doctrine and scholarship. Don't know which way I'd come out on it. But I'm much more confident that we should conclude the EC is violated if the judge's view is based not on hard evidence, but instead on "casual empirical observation" about the secular virtues of religious belief. -- Original message -- From: "Volokh, Eugene" <[EMAIL PROTECTED]> > Marty: I appreciate your argument, but let me probe it a little > further. > > Say a judge says that it's in the child's best interests -- all > else being equal -- to be raised a more religiously observant parent, > rather than an atheist, agnostic, or someone who's not very devout. > (I've found about 70 court decisions over the last 30 years that so > hold, and I'm sure there are many others that aren't on Lexis or > Westlaw.) And say the judge expressly says he's *not* making this > decision because he thinks a religious upbringing is *spiritually* > better. > > Rather, he thinks it's empirically more likely, based on his > casual empirical observation (which is generally adequate evidence) that > a religious upbringing is more likely to keep the child out of trouble > with crime, unwed pregnancy, drug use, and the like. A court of appeals > concludes the judge did not clearly err on the facts or abuse his > discretion in applying the "best interests" standard to the facts -- > that's the usual standard of review in such cases. > > I take it that under your "parens pat
Re: alarming new law?
Well, maybe you will; see below. Congress does this sort of thing regularly. (Haven't seen one for atheists yet, but I can't keep up.) Marty: Do you think the "whereas" you cited that was left out was omitted because it was too over the top, or because the wording of it might actually divide Christians? (I'm thinking of the specific reference to the Bible especially.) Richard J. Dougherty Resolution on Buddhism (Vietnam):http://usinfo.state.gov/dhr/Archive/2003/Dec/01-499319.html Resolution on Judaism:http://www.350th.org/commission/Jewish%20350th%20Res%20passes%20Joint%2011-24.pdf Resolution on Islam:http://usinfo.state.gov/xarchives/display.html?p=washfile-english&x=20071003165444mlenuhret0.9762384&m=October On Ramadan:http://pewforum.org/news/display.php?NewsID=14293 -Original Message- From: "Jean Dudley" <[EMAIL PROTECTED]> Sent 12/15/2007 11:12:13 PM To: "Law & Religion issues for Law Academics" Subject: Re: alarming new law? It's not a law, it's a "non-binding resolution". Legally, it's pabulum. Still, it's a waste of the House's time, IMO. What effects it has on society at large is up for speculation. I see it as indicative of a wider mindset that Christians are "persecuted" here and the world over. Of course they are; As are Jews, Muslims, Atheists, Buddhists, and every other cultural subset. Susan, you and I will not live to see a resolution like this passed for any other religion in the good ol' US of A. JeanOn Dec 15, 2007, at Sat, Dec 15, 8:49 PM, Susan Freiman wrote:This just came to me from an atheists' list. Is it true? Susan ~~`PRESS RELEASEFOR IMMEDIATE RELEASE The Council for Secular Humanism Chides Congress for Disrespecting Religions(December 14, 2007) -- Experts from the Council for Secular Humanism noted with alarm the passage of H. Res. 847 in the House of Representatives. This unnecessary, unwarranted, and bigoted law, under the misleading title "Recognizing the Importance of Christm as and the Christian Faith" passed the House with overwhelming bipartisan support It effectively undermines the sort of religious tolerance necessary in these changing times. Just days ago in the midst of the Jewish Festival of Lights, four Jewish men in New York City were attacked on the subway for replying to a group of ten people who wished them a "Merry Christmas" with a similar greeting: "Happy Hanukkah. For this, these men were first insulted, then beaten. It was a Muslim man who came to their physical defense. The actions of the Congress, by passing the resolution and thus expressing preference to the Christian faith over all the others represented by the diverse population of these United States , encourages this sort of behavior. The First Amendment's guarantee of religious liberty, and of the nonestablishment of religion, was devised to create a secular state in which all religions would be equally tolerated and none given preference. The language of the House resolution effectively undermines the design of the Founders, and creates an atmosphere where non-Christians will continue to be targeted, treated like second-class citizens, and even become victims of violence like those four Jewish subway riders in New York . Paul Kurtz , CSH chair, stated, "It is deplorable that in this day and age and in light of violence against religious minorities here in the United States that the Congress would stoke those flames with preferential language in support of a single religion." David Koepsell , CSH's executive director, noted, "Te First Amendment Guarantee was designed to prevent the sort of religious intolerance that resulted in violence in Europe, and our Congress should respect the intent of the Founders." We call on the Congress to reject this resolution, to stand up for religious freedom, secularism, and pluralism, and to foster a climate in which all believers and nonbelievers alike are treated equally.__._,_.__To post, send message to [EMAIL PROTECTED] subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 p
Re: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof
Marci: I must be missing something big here. The question isn't whether the legislature was kind enough to carve out an accommodation -- that it's required to do. So it can't _not_ accommodate (unless, of course, it simply doesn't regulate). The question is whether its accommodation is so narrow as to violate free exercise. There is no mention in the statute about receiving public funding; as the California Court argued, this was a case of addressing gender discrimination, not poverty or access to services. What the state has done is to decide for Catholics what is part of their Catholic teaching and what is not.Richard Dougherty -Original Message- From: <[EMAIL PROTECTED]> Sent 10/3/2007 2:25:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof Alba...Alan -- I get your point; but I disagree with your approach. Your point is that the Constitution, by which you mean the courts, should prevent this sort of legislative enactment from being applied to a religious entity, and here is the economic reasoning that proves the point. My point is only that your arguments are in the wrong forum -- where many would disagree, quite defensibly, with your notion that government dollars are fungible with private dollars in a free market economy. We'll have to agree to disagree. With respect to Mark's point about the lack of general applicability -- sounds to me like what California has done is to carve out religious institutions that are working wholly within their faith, but correct me if I'm wrong. It has only burdened religious organizations that operate as public service providers, like Catholic Charities, which it knows is almost completely funded by state and federal dollars. Therefore, under this reasoning, it should be held unconstitutional for targeting. That is a clever argument, but it defies common sense. California did not have to carve out the first category. If by creating an accommodation, the legislature cannot draw distinctions based on public function, the logical conclusion is that there should be no accommodation. How does that aid the religious entities? Marcithink you may have misunderstood my position, Marci. Let me see if I can state it more clearly. I recognize that the cost of insurance premiums is an expense for whoever pays it. But I also recognize that money is fungible. If the state picks up the expense of paying the insurance premiums for the employees of religiously exempt organizations and the religiously exempt organization picks up the comparable cost of some public service that the state would otherwise be obliged to pay for (a public service that does not conflict with the religious organizations beliefs), than the financial issue is basically a wash. Assume the insurance premiums are one million dollars (a made up figure). The state pays the one million dollars for increased premiums for the employees of Catholic Charities and other religiously exempt organizations. Catholic Charities (which you noted in an earlier post provides a lot of public services for the state) takes on (at its own expense) an additional one million dollars in public services as a condition for receiving the exemption (like alternative service requirements imposed on conscientious objectors). There may be some administrative costs here – but this is a pretty low cost solution for the state. When we are talking about money – which is what this case is about – the free exercise interest here isn’t the right of Catholic Charities to be exempt from a financial expense that all other employers must accept, it is the right not to be required to spend the money in a way that violates the tenets of their faith. (By analogy, the free exercise interest of the religious pacifist is not in being exempt from a civil obligation of public service for two years of his life, it is in not having that service directed to killing people in war.) Obviously, there will be other cases where arrangements like this would be impossible. The question then would be determining at what point the costs of protecting a right justify the abridgement of the right. I think most rights are expensive political goods and we do not require their protection to be cost free or even low cost. I do not believe free exercise rights should be treated differently. But the Catholic Charities case is particularly problematic to me because alternative, low cost solutions were available that would both protect religious liberty and serve the state’s legitimate interests. Alan Brownstein Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 -Original Message- From: Brownstein, Alan <[EMAIL PROTECTED]> To: Law & Religion issues for Law Academics Sent: Wed, 3 Oct 2007 12:36 pm Subject: RE: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof Alba...I think you may have misund
Re: Supreme Court won't hear appeal inCatholicCharitiesoftheDioceseof
Steven and Mark both make very good points here. If the state's concern was really with ensuring contraceptive coverage, wouldn't they just require all employers to provide it, rather than predicating it on the pre-existence of a drug plan benefit? A point of information: Does anyone know if any groups other than Catholics have opposed these laws because they are opposed to contraception? I know that other religious denominations have supported the Catholic position in principle, on free exercise grounds, but does the law actually affect anyone other than Catholics? I just don't know, and haven't seen anything in the records.Richard J. Dougherty -Original Message- From: "Scarberry, Mark" <[EMAIL PROTECTED]> Sent 10/3/2007 12:26:15 PM To: "Law & Religion issues for Law Academics" Subject: RE: Supreme Court won't hear appeal inCatholicCharitiesoftheDioceseof Alba...Full disclosure: I participated in a moot court helping to prepare Catholic Charities' lawyers for oral argument in the Cal S Ct. One of the real issues as I saw it was that the law was not a neutral law of general applicability. Conditions for its application were carefully tailured to apply to Catholic Charities, including, IIRC, a requirement that the group serve persons beyond its own faith community. So if Catholic Charities limited its ministry to Catholics, the law would not have applied. Of course then the group wouldn't have qualified for federal dollars, but that is not appropriately a matter of concern to the State of Califonia. (There was more to the argument than that, with regard to the law not being neutral or generally applicable, but I don't have the materials here with me.) Mark S. Scarberry Professor of Law, Pepperdine University School of Law Robert M. Zinman Scholar in Residence, American Bankruptcy Institute (Alexandria, Virginia), Fall 2007 From: [EMAIL PROTECTED] on behalf of Steven Jamar Sent: Wed 10/3/2007 1:02 PM To: Law & Religion issues for Law Academics Subject: Re: Supreme Court won't hear appeal inCatholicCharitiesoftheDioceseof Alba... isn't it about more than just spending money that would violate their faith -- isn't it even more about being required to DO something that would violate beliefs? For that, who pays what doesn't matter. On 10/3/07, Brownstein, Alan <[EMAIL PROTECTED]> wrote: > >> > When we are talking about money - which is what this case is about - the > free exercise interest here isn't the right of Catholic Charities to be > exempt from a financial expense that all other employers must accept, it is > the right not to be required to spend the money in a way that violates the > tenets of their faith. (By analogy, the free exercise interest of the > religious pacifist is not in being exempt from a civil obligation of public > service for two years of his life, it is in not having that service directed > to killing people in war.) > -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ 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: Supreme Court won't hear appeal in Catholic
While I agree with Marci that the level of public funding Catholic Charities receives is problematic, because it leaves it vulnerable to these sorts of problems, and perhaps leads to compromise in other areas, I think Alan is spot-on in his analysis here. The CA and NY cases had nothing to do with accepting public funding, but directed employers on what kind of benefits to provide employees. Catholic Charities could avoid the problem by refusing to provide prescription drug benefits; compelling them to do that -- violating their mission -- in order to avoid violating their mission is the debased element in the law.Richard J. Dougherty -Original Message- From: "Brownstein, Alan" <[EMAIL PROTECTED]> Sent 10/2/2007 3:24:55 PM To: "Law & Religion issues for Law Academics" Subject: RE: Supreme Court won't hear appeal in Catholic CharitiesoftheDioceseof Alba...Marci’s focus on the public funds that Catholic Charities receives seems odd, at least to me, since the legislative mandate in the California case at least was not a condition on funding and would have applied with equal force to a religious organization that did not receive any funds from the government. Money is related to this case in a different way, however. Unlike some conflicts between government and religious exercise in which the regulatory interests of the state and the religious practice of faith-based institutions may make compromises difficult, the Catholic Charities case was exclusively about money and how it would be spent. The state wanted to provide insurance coverage for medical contraceptives for women working for employers who provided them health insurance that included prescription drugs and directed employers, including religious employers, to pay for the cost of that benefit. Obviously, the state could have accomplished its health and equity goals by having the state itself provide insurance coverage to employees working for religiously exempt employers. And the state could have required Catholic Charities to provide equivalent value in funds or services (equivalent to the expenses they avoided by receiving a religious exemption from the law) for some public good or services that did not violate the tenets of the Catholic faith. (Something akin to financial alternative service.) Thus, the state could have respected the religious freedom of Catholic Charities without incurring any significant cost or risk. A free exercise jurisprudence that allows religious liberty to be outweighed by minimal state interests is debased – just as a free speech or other fundamental right jurisprudence would be debased if it allowed rights to be burdened for insubstantial reasons. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]: Tuesday, October 02, 2007 5:18 AMTo: [EMAIL PROTECTED]: Re: Supreme Court won't hear appeal in Catholic CharitiesoftheDioceseof Alba... Brad- Your views about the framers are not even supported by the ministers at the time of the framing, who preached the rule of law from the pulpit, as I have documented. The framing generation was deeply opposed to "licentiousness," which they viewed as acting immorally and contrary to law. The move in Yoder to permit religious entities to trump neutral, generally applicable laws is an outlier in Supreme Court jurisprudence. While it is true that various lobbyists were capable of persuading Congress Yoder was the prevailing law before Smith, and thereby obtaining RFRA, neither history nor case law supports such a reading of either the framing or the jurisprudence. Now, you can certainly argue for more robust rights for religious entities to avoid the law, but that is an argument for altering the balance between religious entities and the rest of society. As the Boerne Court majority made clear, that is the rule that requires constitutional amendment. In any event, this is a far more abstract level than the Catholic Charities issue deserves, because you have not answered the fact that Catholic Charities is overwhelmingly funded by tax proceeds. In many respects, these are public institutions carrying out public social services. The double entitlement of public funds and right to avoid neutral, generally applicable laws is about as far from Madison's Memorial and Remonstrance as you can get. Marci Marci A. HamiltonVisiting Professor of Public AffairsKathleen and Martin Crane Senior Research FellowProgram in Law and Public AffairsWoodrow Wilson SchoolPrinceton University See what's new at AOL.com and Make AOL Your Homepage.___ 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 W
Re: "But that's what it MEANS"
Really? I thought that was exactly how it was meant. As Will suggests, if he were a progressive (not stipulating now what that means) he would probably be described as sharing the good news. Richard J. Dougherty -Original Message- From: "Newsom Michael" <[EMAIL PROTECTED]> Sent 9/10/2007 4:50:42 PM To: "Law & Religion issues for Law Academics" Subject: RE: "But that's what it MEANS"I note with some interest that in a recent piece on the visit of Pope Benedict XVI to Mariazell in Austria, includes a statement to the effect that progressive Catholics might not like the Holy Father's "proselytizing for the traditions of the faith." I seriously doubt that the word as used can be fairly said to be pejorative. ___ 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: Recent Threads
I agree with Michael and Steven that "proselytizing" is an accurate
word to employ. I think what Will Linden was pointing out is that
it is often used as a pejorative, except perhaps when used in a
non-religious way ("he was proselytizing for the adoption of textbook A
over B"). We had a discussion some time ago about using the term
"anti-abortion," which is also accurate but also used quite often as a
pejorative term (does anyone in the pro-life camp call their position
"anti-abortion"?). My three year old recently described a
stranger as "fat," which was largely accurate but not conducive to
productive conversation. The term doesn't have to be dropped, but
used with the right spirit ("fat wallet," "Fat Tire" beer, "Fat Albert"
are probably safe?).Richard J. Dougherty
University of Dallas
-Original Message-
From: "Newsom Michael" <[EMAIL PROTECTED]>
Sent 9/7/2007 3:48:59 PM
To: "Law & Religion issues for Law Academics"
Subject: RE: Recent ThreadsI have an article coming out soon that has
the word “proselytizing” in its title. Like Steve, I thought that
I was being accurate. From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent:
Thursday, September 06, 2007
12:16 PMTo:Law
& Religion issues for Law AcademicsSubject: Re: Recent Threads Curious. I've
had
many a christian tell me it is their obligation to proselytize -- using that
very word.
I don't see anything pejorative in it at all. It is quite accurate.
On 9/6/07, Will
Linden <[EMAIL PROTECTED]>
wrote:On Thu, 6 Sep 2007, Douglas Laycock wrote:
> Some Christians proselytize; some don't. Same with atheists.
"Proseleytize" is one of those funny words, like "cult" and
"superstition", which can only be applied to Somebody Else BY
DEFINITION.
We share, you preach, They proseleytize. Consequently, I have
dropped it
from my vocabulary.___
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Re: (no subject) Clergy at career days
What has struck me about the responses is the relative ambiguity -- for good reason -- of the current state of the law. We often hear that critics of strict separation overstate the opposition to public displays or endorsement of religion, but I think this case, and our discussion of it, shows that it is more complicated than that. Richard Dougherty-Original Message-From: "Richard James" <[EMAIL PROTECTED]>Sent 4/4/2007 11:30:11 AMTo: religionlaw@lists.ucla.eduSubject: (no subject) Clergy at career daysInteresting responses, thanks. In this case, the situation was much more of a forum, with an open invitation sent home with all students asking for parent volunteers willing to come in and talk about their careers. In fact, I was responding to a second appeal for speakers sent out from the class which was lamenting the limited participation from parents. I’m interested to know in this case what informs the differentiation between invited guests and forum. However, Doug Laycock’s point is applicable, since the presentations were going to be made to the class in general by individual presenters.It seems reasonable enough that the teacher’s right to control guests is not subject to much challenge, but I had emphasized to the volunteer and the teacher that the minister wasn’t going to engage in any proselytizing, but was going to discuss the functional aspects of her job. I suppose that this might be a legitimate concern for a teacher due to the awkwardness and controversy that having a holy roller come in and preach might engender, but I didn’t receive any suggestion that this had been something that had any precedent. Finally, I suppose, is there a question of what free speech rights were violated at all, since the speech in question is some steps removed from the subject of the rights? The case in Peck is clearer in this sense because the school restricted the direct speech of a student because of religious content, despite the fact that the speech was expressed within the school’s pedagogic purpose. Here, the speech may not be speech and is connected to the pedagogical purpose more tenuously.Of course, as a non-lawyer, I think that what the school has done is dumb, mostly. Richard James___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: "Christian" Skating Time
I think that Alan is exactly right -- what "Christian" means in this context is likely a reference to the music that is going to be played. This is a common advertising theme in Texas, which has little to do with religion and more to do with community standards. No one is excluded from coming, but you won't expect hip hop and rap music, and you are less likely to encounter drinking and smoking among patrons (though you may find some going on in the back corners of the parking lot). My family has attended many such "events," and even though many in the area do not consider us Christian we have never been imposed upon, or witnessed to. If you can stomach Christian rock, I'd say you're unlikely to be offended. Richard Dougherty -Original Message-From: "Paul Finkelman" <[EMAIL PROTECTED]>Sent 7/3/2006 11:10:29 AMTo: "Law & Religion issues for Law Academics" Subject: Re: "Christian" Skating TimeBookstore would not be a "public accommodation" the way a skating rink might be; in addition, isn't there a context issue here; might be factual matter for a judge or jury to determine. But, living surrounded by many people who in fact use "Christian" to exclude others and who are openly hostile to those of us who are not Christian, I have a sense that Christian skate time migth be very different than Polish Sausage night at the ball park. Again, I do no imagine anyone trying to convert you to be Polish; since I live in a world where I regularly face unwanted and offensive intrusions on my life by people who want to convert me, I perhaps see the Christian skate night as far less innocuous than Polish night. The other difference, of course, is that one IS religious and the other is not. It was not "Catholic night" at the ball park and I bet there were few priests bringing their sunday school class in for "Polish Catholic" night. Steve Sanders wrote:> Quoting Paul Finkelman <[EMAIL PROTECTED]>:>>> Isn't there a difference between holding an "ethnic theme" -- food, >> music, etc.at the ball park -- and having an event that implies >> people of only one religion are welcome? Hard to imagine what the >> food and music would be of a Christian Theme night at the ball park >> or the skating rink?>>> Amy Grant and tuna casserole, perhaps?>> Seriously, Paul, I'm not sure I really see the difference. Both are > designed to celebrate the identities and cultures of particular > groups. If someone not in that group wants to feel it excludes them, > it's hard to know what to do, assuming that there is no actual effort > by the private entity to exclude in violation of the civil rights law.>> While I suspect that the Christian Skating Time crowd would not be my > idea of a fun time, I'm hard pressed to understand why the rink > management isn't within its rights to offer it -- again, providing > they are not actually excluding non-Christians. I wouldn't feel > particularly welcome shopping Hollister, Victoria's Secret, or Hip Hop > Closet, but that standing alone doesn't mean I could accuse them of > age, gender, or race discrimination.>>> It doesn't take much of an imagination to understand that the ball >> park "theme" is about celebrating and ethnic culture, and the >> "Christian skate" is about creating a climate of exclusivity based on >> belief.>>> By this logic, wouldn't it be illegal to run a Christian book store?>>> I doubt anyone at Comisky Park was asked about their "Polish beliefs" >> or anyone tried to convert them to "become Polish.">>> True, the worst they would have faced was being accosted by drunks > wearing "Kiss Me, I'm Polish" t-shirts.>> Steve Sanders> 7th Circuit US Court of Appeals> ___> 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.-- Paul FinkelmanChapman Distinguished Professor of LawUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, OK 74105918-631-3706 (voice) 918-631-2194 (fax)[EMAIL PROTECTED]After July 21, 2006 my address will bePaul FinkelmanPresident William McKinley Distinguished Professor of LawAlbany Law School80 New Scotland AvenueAlbany, New York 12208518-445-3386 (office)518-605-0296 (cell)[EMAIL PROTECTED]___
Re: And Now For Something Completely Different
Two points: 1) I apologize for violating my own principle, by having posted a non-law related comment. The reason why I oppose doing so is evident in the response that it elicited. 2) I would hope that posters would refrain from making comments that are based on what can only be a fundamental lack of familiarity with Church teaching, but that hope is flickering. The reason why the Church takes a position on an issue that may be seem to be at odds with one's personal preferences, or that holds up one concern as fundamental but another as a matter of prudential judgement, is well developed in the Catholic tradition. Indeed, it is a hallmark of Catholic teaching. Ignorance of that, but willingness to make pronouncements about its alleged hypocrisy, is...what? Intolerance? Bigotry? Simple lack of judgment? Disagreement with its position is one thing, criticism of its position is fine, but this is clearly something else. My apologies for having distracted the discussion. Richard Dougherty >As I suggested with the church complicity with executions (and maybe unjust >wars, and many other things in society), the church chooses its causes based >on politics. I real test of the church would come when bishops condemn >politicians who order executions or start unjust wars as vigorously has they >work to keep kids in our foster care system rather than helping them find >loving homes with loving adults. > >The Human Rights campaign is right on target with this statement. Thanks Rick >for sharing this. > >Quoting Rick Duncan <[EMAIL PROTECTED]>: > >> Human Rights Campaign says:"Boston Catholic Charities puts >> ugly political agenda before child welfare." Link. Excerpt: >> >> >> Denying children a loving and stable home serves absolutely >> no higher purpose, said Solmonese. These bishops are putting >> an ugly political agenda before the needs of very vulnerable >> children. Every one of the nations leading childrens welfare >> groups agrees that a parents sexual orientation is irrelevant >> to his or her ability to raise a child. What these bishops are >> doing is shameful, wrong and has nothing to do whatsoever with >> faith. >> >> Rick Duncan >> >> >> >> Rick Duncan >> Welpton Professor of Law >> University of Nebraska College of Law >> Lincoln, NE 68583-0902 >> >> >> "When the Round Table is broken every man must follow either >> Galahad or Mordred: middle things are gone." C.S.Lewis, Grand >> Miracle >> >> "I will not be pushed, filed, stamped, indexed, briefed, >> debriefed, or numbered." --The Prisoner >> >> >> __ >> Do You Yahoo!? >> Tired of spam? Yahoo! Mail has the best spam protection >> around >> http://mail.yahoo.com > > > >Paul Finkelman >Chapman Distinguished Professor of Law >Univ. of Tulsa College of Law >2120 East 4th Place >Tulsa OK 74104-3189 > >Phone: 918-631-3706 >Fax:918-631-2194 >___ >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: And Now For Something Completely Different
I happen to agree with Ed Brayton that tolerance does not mean immunity from criticism, but I'm guessing many or most people would not. But what does one call lecturing the Church on its own teachings? Or the assertion that its theology, grounded in 2000 years of teaching, is simply an "ugly political agenda"? Or telling the Church what is a matter of faith and what is not? Richard Dougherty -- Original Message -- From: Ed Brayton <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Tue, 14 Mar 2006 14:04:35 -0500 >Rick Duncan wrote: > >> So Mr. Brayton agrees with the HRC that the Catholic faith--at least >> on the issue of marriage and family--is "shameful" and "ugly" and >> "serves absolutely no higher purpose." > > >I don't think this is a reasonable restatement of what the HRC said or >what I said I agreed with. They did not say that "the Catholic faith" >was shameful and ugly and serves no higher purpose, they said that this >particular decision was. That is something I agree with. Like any large >religion, there are many things to admire and many things to condemn and >pretending that all criticism amounts to a condemnation of the entire >faith is simply not reasonable. > >> >> Our zones of tolerance just don't overlap. > > >I don't think this has anything at all to do with tolerance. Tolerance >does not mean immunity from criticism. > >Ed Brayton >___ >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: Catholic Charities Issue
While I don't have an immediate answer to Marty's qusetion, I want to commend him and others who have focused on the legal question involved. As for the posters who want to use the issue as a vehicle for criticizing the Church for its postition, and lecture it on how to reform its theology while at the same time revealing palpable ignorance of its theology, I can only say that I am embarrassed. Richard Dougherty -- Original Message -- From: "Marty Lederman" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Sat, 11 Mar 2006 17:33:36 -0500 >I didn't mean to question the sincere religious motivation of Catholic >Charities (or the Bishops whose decree it is following). I was simply curious >what it is, exactly, that Massachusetts prevents CC from doing, and whether >and how that particular legal restriction imposes a substantial burden on the >religious exercise of the Church or of those involved in CC. Presumably, as >Alan suggests, the Church remains free to faciliate adoptions among Church >adherents, right? > >I'm asking this not to make a point, but because I'm genuining curious about >what state law prohibits and how that restriction impinges on religious >liberty. > >- Original Message - >From: "Douglas Laycock" <[EMAIL PROTECTED]> >To: "Law & Religion issues for Law Academics" >Sent: Saturday, March 11, 2006 2:57 PM >Subject: RE: Catholic Charities Issue > > >It may be a business to the state, although even the state recognizes that >it's not for profit. I assume it's a corporal work of mercy to the church. >Recharacterizing religious activities as businesses, because it costs money to >sustain them or because other groups engage in similar activities for secular >reasons, is not in my view a legitimate means of escaping religious liberty >guarantees. > > > >Douglas Laycock >University of Texas Law School >727 E. Dean Keeton St. >Austin, TX 78705 >512-232-1341 >512-471-6988 (fax) > > > >From: [EMAIL PROTECTED] on behalf of Marty Lederman >Sent: Sat 3/11/2006 1:22 PM >To: Law & Religion issues for Law Academics >Subject: Re: Catholic Charities Issue > > >Doug, under Massachusetts law would CC's inability to engage in "adoption >services" (which I assume means being in the business of arranging adoptions) >result in a substantial burden on its religious exercise? > > >- Original Message - >From: "Douglas Laycock" <[EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> > >To: "Law & Religion issues for Law Academics" <mailto:religionlaw@lists.ucla.edu> > >Sent: Saturday, March 11, 2006 2:09 PM >Subject: RE: Catholic Charities Issue > > >Application of this law to Catholic Charities should have raised a quite >plausible claim under the Massachusetts Free Exercise Clause. See the Society >of Jesus case about 1990, and a mid-90s case on marital status discrimination >by landlords, the name of which I am forgetting. > >So why did Catholic Charities surrender rather than litigate? Maybe they >figured they would just make bad law with that claim in the court that found a >constitutional right to gay marriage. If that's the reason, that sort of >restraint in the choice of what claims to file should be practiced a lot more >widely. If that just didn't think about the state law, that's much less >admirable. > > > >Douglas Laycock >University of Texas Law School >727 E. Dean Keeton St. >Austin, TX 78705 >512-232-1341 >512-471-6988 (fax) > > > >From: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> on behalf of Will Esser >Sent: Sat 3/11/2006 12:35 PM >To: Law & Religion issues for Law Academics >Subject: Re: Catholic Charities Issue > > >Paul, > >Your comparison doesn't fit and doesn't reveal any inconsistency on the part >of the Church. Catholic Charities withdrew from the adoption arena, because >the state mandate would require it to actively participate in the actual act >with which it disagreed (i.e. placing children for adoption with gay couples). > In your example, there is no conflict for the Church in ministering to the >souls of those in the prison system. Such action is not in any sense active >participation in capital punishment. > >I'm entirely with Rick in saluting Catholic Charities for its decision. >People may disagree with the rationale for the decision, but the decision is >ultimately an act of a religious organization p
RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
Thanks, Mark. I should have looked it up before, but I found this on the Planned Parenthood web-site, which was likely what I had in mind. "In fact, while most employment-related insurance policies in the United States cover prescription drugs in general, the vast majority do not include equitable coverage for prescription contraceptive drugs and devices (AGI, 1994). Similarly, while most policies cover outpatient medical services in general, they often exclude outpatient contraceptive services from that coverage (AGI, 1994). This failure is costly, both for insurers who may have to pay for either maternity care or abortion, and the families whose physical and financial well-being is threatened by unintended pregnancy and lack of access to equitable coverage for contraceptives. "Efforts were already underway to address the inequity in prescription coverage for women when Viagra®, a drug used to treat erectile dysfunction, was introduced on the U.S. market in the spring of 1998. Within two months of its entrance into the U.S. market, more than one half of the prescriptions for Viagra received insurance coverage. Such coverage has yet to be extended to intrauterine devices (IUDs) or diaphragms (Goldstein, 1998), prompting national organizations such as the American College of Obstetricians and Gynecologists and Planned Parenthood Federation of America to condemn the gender bias in prescription coverage." I'm not sure why the coverage for Viagra is related to covering contraception, though... Richard Dougherty -- Original Message -- From: "Scarberry, Mark" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Wed, 18 Jan 2006 21:57:20 -0800 >The list messages seem to be coming out to the members (at least to me) in a >bit of a random, nonchronological order, which is making the conversation a >bit disjointed. > >Nevertheless, let me say that in thinking back on the Catholic Charities >case I've finally remembered what the State of California argued was its key >interest: prevention of sex discrimination in employment. Thus the State >would permit employers to refuse to provide any prescription drug coverage >at all; but if an employer provided prescription drug coverage that did not >include prescription contraceptives, then that was seen as sex >discrimination, because prescription contraceptives were a substantial part >of the cost of prescription drugs for women, but not for men. > >I also seem to recall that for some employers, but for some reason not for >Catholic Charities, federal law (ERISA?) would preempt the state's >requirement. But I may be mistaken as to that. > >Mark Scarberry >Pepperdine > >-Original Message- >From: [EMAIL PROTECTED] >To: Law & Religion issues for Law Academics >Sent: 1/18/2006 7:33 PM >Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw > >I don't think the state has to be prepared to bankrupt itself to show >compelling interest. Here I think one question is why and how did the >state discover that contraception protection was so important that it >had to mandate coverage, except for employers who meet the most >stringent qualifications for exemption. When was the CA requirement put >in, or the NY one (I don't have the cases with me, but I'm sure it's in >there)? I think in Texas it was in 1999 or 2000. What I remember -- >vaguely -- is that it came as a response to insurance companies covering >Viagra but not contraception. Does anyone know? >Richard Dougherty ___ 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: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
I don't think the state has to be prepared to bankrupt itself to show compelling interest. Here I think one question is why and how did the state discover that contraception protection was so important that it had to mandate coverage, except for employers who meet the most stringent qualifications for exemption. When was the CA requirement put in, or the NY one (I don't have the cases with me, but I'm sure it's in there)? I think in Texas it was in 1999 or 2000. What I remember -- vaguely -- is that it came as a response to insurance companies covering Viagra but not contraception. Does anyone know? Richard Dougherty -- Original Message -- From: "Newsom Michael" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Wed, 18 Jan 2006 18:28:10 -0500 >For an interest to be compelling does a state have to be prepared to >bankrupt itself? > >-Original Message- >From: Scarberry, Mark [mailto:[EMAIL PROTECTED] >Sent: Tuesday, January 17, 2006 8:44 PM >To: Law & Religion issues for Law Academics >Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw > >If the interest is so compelling, why does the statute allow an employer >to >ignore it -- to avoid having to pay for prescription contraceptives -- >simply by dropping all prescription drug coverage? (Catholic Charities >could >have done so, but it believed that it had a religious duty to provide >quality health insurance to its employees; thus it was unwilling to drop >prescription drug coverage from its health insurance plan. In fact it >viewed >that duty as a stronger duty than the duty not to pay for prescription >contraceptives.) > >Mark S. Scarberry >Pepperdine University School of Law > > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
I very much appreciate the informative posts on this issue. Two questions: 1) Would this be a different issue if the exemption was something being added to an older statute, rather than part of what I take to be a new policy requirement? That is, does the timing of the exemption make any difference? 2) Might one result of the statutory scheme be counter-productive? That is, if the idea is to ensure coverage, isn't one incentive to employers going to be to abandon coverage altogether? And/or, where applicable, to deny services or employment to non-Catholics? I realize this is not a legal question, but it does touch on the motivation for the law, and the way the exemption was crafted. (Though perhaps legislators bet that Catholic Charities would choose to provide coverage rather than abandon its work.) Richard Dougherty -- Original Message -- From: "Scarberry, Mark" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Sun, 15 Jan 2006 17:48:18 -0800 >In response to Marty: > >First, one might ask what interest of the state in providing for >contraceptive needs of employees, or what part of the merits of providing >the employer with an exemption, is implicated by the section of the Internal >Revenue Code chosen by the organization under which it receives its tax >exempt status. That was never clear to me. > >Second, suppose the inappropriate criterion were as follows: "No social >services group associated with the Roman Catholic Church shall qualify for >the exemption." Wouldn't such a criterion show that the statutory scheme was >designed to discriminate against a particular religious group because of its >religion? And wouldn't such proof be fatal to the scheme? > >The targeting of Catholic Charities by way of the four criteria in the >statute -- including the impermissible ones -- is nearly as clear as if the >statute had included that hypothetical language. Floor statements of >California legislators also make it clear that they did not like the >Church's position on contraception and that the statutory scheme was >designed specifically to force the Church to violate its precepts. After >all, as the legislators stated, you could be a good Catholic without >following the Church's teaching on contraception. > >That religious intervention by the state is deeply troubling to me, as I >believe it should be to other members of the list. > >Mark Scarberry >Pepperdine > >-Original Message- >From: [EMAIL PROTECTED] on behalf of Marty Lederman >To: Law & Religion issues for Law Academics >Sent: 1/15/2006 4:24 PM >Subject: Re: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw > >Alan writes that "having one or more inappropriate criterion taints the >entire accommodation provision." > >Why? > >Let's say, as apparently was the case in the Catholic Charities case, >that the requirement of specified tax status would, standing alone, be a >perfectly permissible criterion, and the plaintiffs do not satisfy that >criterion. That disqualifies them for the exemption right there. Why >should the outcome change just because another of the criteria -- >superfluous for an employer who doesn't qualify under the tax-status >criterion -- would be unconstitutional standing alone? > >[snip] >___ >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: N.Y. Court Rejects Employers' Challenge to Contraception Law
Jim: Thanks for the article. Am I right that the exemption (as in Calif.) only applies to organizations engaged in promoting religious teachings? Thus, even if I called my electrical company "St. Stanislaus" and hired only Catholics (presuming I could do that), and included religious symbolism in all my ads, had a priest on staff to consult with on ethical practices, etc., the fact that my business was not proselytizing means no exemption for me? Thanks, Richard Dougherty James Maule wrote: > >From http://www.law.com/jsp/article.jsp?id=1137060315143 > > N.Y. Court Rejects Employers' Challenge to Contraception Law > > Religious-affiliated employers faced with what they say is a morally > untenable choice of either offering prescription coverage for contraceptives, > which they oppose on theological grounds, or denying their employees what > they view as a basic right lost a major establishment clause battle Thursday > when a narrowly divided appellate panel upheld the state's Women's Health and > Wellness Act. > > By a 3-2 margin, the Appellate Division, 3rd Department, rejected myriad > constitutional challenges by Catholic and Baptist organizations, and upheld > the law requiring employers that provide prescription insurance coverage to > their workers to cover contraceptives. > > . . . . . . . > > Go to http://www.law.com/jsp/article.jsp?id=1137060315143 for rest of > article. > > URL for the opinion: > http://decisions.courts.state.ny.us/ad3/Decisions/2006/96621.pdf > > Excerpts: > > "In sum, the WHWA easily satisfies the test of Smith, and thus, while it > incidentally imposes a burden on plaintiffs' free exercise rights, we find > that it does not violate the Free Exercise Clause of the First Amendment." > > "All things considered, and limiting our review to the appropriate judicial > inquiry, we conclude that the balance tips away from plaintiffs' right to > free exercise and in favor of the WHWA, and > therefore find that the WHWA does not violate NY Constitution, article I, § > 3." > > "Because plaintiffs' expressive association claim lacks this necessary > factual predicate, their assertions that the WHWA violates the First > Amendment in this regard are wholly without merit." > > "Finding that plaintiffs have adequately stated a hybrid free exercise/free > speech claim, the dissent proceeds to apply strict scrutiny to the WHWA, and > concludes that the state's asserted interests in gender equity and women's > healthcare are undermined, and that the statute is not narrowly tailored > because it encourages nonexempt religious organizations to opt out of > providing prescription coverage. While we disagree with the determination to > apply strict scrutiny in the first instance, we note that this analysis fails > to acknowledge the compelling state interests at issue, and ignores the > unrebutted presumption that the Legislature conducted adequate fact-finding > with respect to the effect of the opt-out provision." > > "Inasmuch as no plaintiff ever claimed the exemption, a potentially > entangling inquiry into plaintiffs' religious duty to inculcate religious > values and spread the faith through their ministries was never conducted, and > thus, this action gives us no occasion to consider an "as applied" challenge > to the constitutionality of the exemption (see Catholic Charities of > Sacramento v Superior Court of Sacramento County, 32 Cal 4th 527, 546-547 > [2004], supra)." > > "Despite withstanding constitutional muster under the Lemon test, plaintiffs > contend that the exemption discriminates between religious denominations in > violation of Larson v Valente (456 US 228 [1982], supra). We do not > agree.The legislative record provides no basis for us to either discern > or attribute a legislative intent to limit the exemption to the Catholic > Church or to preclude other denominations from invoking it, and, as we have > noted, it does not have that effect." > > "This case simply does not involve a civil intrusion into internal church > dispute resolution and, therefore, plaintiffs' "church autonomy" argument is > unavailing." > > Jim Maule > > ___ > 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 th
Re: Free Exercise and Est Cl decision
Marci: Can you give us a link to the decision? Were there other sexual abuse cases in the news in 2003 that prompted the passage of the law? Does Stogner have any effect on this? Thanks, Richard Dougherty -- Original Message - From: Rick Duncan <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Sat, 24 Dec 2005 08:27:28 -0800 (PST) >Sounds like a nice victory for you, Marci. > > I can see how the Church could view the law as "targeted," but if the law > was an across-the-board extension of the S of L for all childhood sexual > abuse claims in the year 2003, I don't see any strong free exercise or EC > problems with the law. > > Cheers, Rick Duncan > >[EMAIL PROTECTED] wrote: > A major free exercise and establishment clause decision was handed down > yesterday in a San Diego federal court. The court ruled that California's > "window" (lifted the statute of limitations for all civil claims re: > childhood sexual abuse during the year 2003) is constitutional. The Catholic > Church had argued that it was targeted, a la Lukumi, by the statute and that > the financial burden was an "economic holocaust." In a very solid opinion, > the court rejected all of their arguments. The case is Melanie H for those > interested in reading it. > > (In the interest of full disclosure, I represented the clergy abuse victims > for constitutional purposes in this case. ) > > Happy Holidays to everyone! Marci >___ >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. > > > >Rick Duncan >Welpton Professor of Law >University of Nebraska College of Law >Lincoln, NE 68583-0902 > > "Merry Christmas--It's ok to say it." --Alliance Defense Fund Slogan > >"When the Round Table is broken every man must follow either Galahad or >Mordred: middle things are gone." C.S.Lewis, Grand Miracle > >"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or >numbered." --The Prisoner > > >- > Yahoo! DSL Something to write home about. Just $16.99/mo. or less > > ___ 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.
Santa Claus in school
Well, I don't know if this counts as religion law... A local teacher told her class of second graders the other day that there is no Santa Claus. She retracted the "assertion" the next day, after numerous parental complaints. I presume she has constitutional cover to teach the truth, though prudence may dictate simply avoiding the issue? Do parents have a right to have schools complicit in hiding the bald facts from their children? What about the Tooth Fairy? Easter Bunny? Will it be sufficient to roll out "Yes, Virginia..." as an explanation? Richard Dougherty ___ 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: "Silent Night" controversy
Ed, et al: I know nothing about the play under discussion, but we might consider here the comment by a Philip Roth character (if I remember correctly, the character was Philip Roth), that the song "White Christmas" has nothing to do with Christmas, as "Easter Parade" has nothing to do with Easter. Richard Dougherty -- Original Message -- From: Ed Brayton <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Wed, 14 Dec 2005 21:13:13 -0500 >Coyle, Dennis wrote: > >> >>On the other hand, explaining that the song comes from a play about trees >>doesn't entirely refute the criticism that the school may be driving out the >>"true meaning of Christmas" -- it's a long ways from Christmas trees and >>Santa to a story of the virgin birth of a savior. And the fact that it has >>been performed in churches -- even in Kingsport, where we coincidentally once >>lived -- does not prove that the play has any religious connotation. I don't >>know anything more about the play, but we have potlucks at church, too, but >>that doesn't make them religious activities. >> >> > >But surely pointing to a song in a play that is all about Christmas as >evidence of a "war on Christmas" is absurd, at best, and dishonest at >worst. It's not part of some conspiracy to eliminate any mention of >Christmas, for crying out loud, it's a play ABOUT Christmas. > >Ed Brayton >___ >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: I've met and conferred with my fellow Jewish Conspirators --
Now, Eugene, what does it say about members of the list that you think Mr. Darby has raised lots of money for his campaign through his posts? And why doesn't the ZOG do something about all of these posts, and all these free-wheeling web sites that Mr. Darby keeps telling us about? You'd get the feeling that the ZOG doesn't understand the power of free speech. You are certainly right that a few posts like his tell us a lot more about him than the more substantive academic discussions do. Thanks for calling a close to it, though. All the best, Richard D. "Volokh, Eugene" wrote: > the ones who weren't too busy seducing virtuous Gentile women -- and > they say that it's time to return this list to the Law of Government and > Religion. > > As I mentioned before, I thought a few posts from Mr. Darby on > questions of Zionism in U.S. government (which is not a matter of the > Law of Government and Religion), while not on topic, were at least in > some measure responsive to my earlier post on him and the Atheist Law > Center. They also seemed to me to be helpful confirmations of the > original post; it is good for people who do the law of government and > religion to know a bit more about the character of moderately prominent > lawyers and commentators who work in the field. Now Mr. Darby has had > his few posts, and I'm sure has raised a great deal of money for his > newsletter and his campaign for Attorney General. We can return to our > regularly scheduled programming. > > The list custodian ___ 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: Candor
Mark, et al: The first definition you cite is actually the one I think of usually. It is the intention behind the Declaration of Independence's line, "let facts be submitted to a candid world." (The "toga candida" was the white robe worn by Roman office-seekers, meant to imply their impartiality; it also had no folds, so they couldn't hide money used to buy votes!) On the substantive point of Catholicism and public law, and the changing attitudes of Catholics and toward Catholics, I will stay out of it except to say that Church membership has taken a severe blow while that change had taken place; I'm not suggesting a cause and effect, as it is much more complex than that, but one does have to think seriously about what has occurred over the past fifty years. That is not to say that Eugene is wrong in his assessment -- I rather think he's right. Richard Dougherty -- Original Message -- From: "Volokh, Eugene" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Wed, 9 Nov 2005 17:35:43 -0800 > I too hadn't heard of the "impartiality" meaning of "candor," >but I'm pleased to know that this was what was intended, and that Prof. >Newsom wasn't accusing me of dishonesty or insincerity. I naturally >think that my original assertions were fair and, I hope, accurate >(insofar as they were factual claims); but that of course is for fellow >list members to decide for themselves. > > Eugene > >> -Original Message- >> From: [EMAIL PROTECTED] >> [mailto:[EMAIL PROTECTED] On Behalf Of >> Newsom Michael >> Sent: Wednesday, November 09, 2005 4:18 PM >> To: Law & Religion issues for Law Academics >> Subject: RE: Candor >> >> >> I did reply, and I meant no accusation of dishonesty. >> >> -Original Message- >> From: Scarberry, Mark [mailto:[EMAIL PROTECTED] >> Sent: Wednesday, November 09, 2005 2:26 PM >> To: 'Law & Religion issues for Law Academics' >> Subject: RE: Candor >> >> My Webster's New World Dictionary includes two non-obsolete >> meanings for >> "candor": "1. the quality of being open-minded or fair; >> impartiality. 2. honesty in expressing oneself; sincerity; >> frankness." >> >> The first definition surprised me. I do not use "candor" in >> that sense, nor would I understand it in that sense. >> Nevertheless, it seems to be an accepted meaning of the word. >> >> I suppose we could all have opinions about how open-minded or >> fair or impartial other list members are. If Michael was >> using "candor" in that sense, then his accusation that Eugene >> lacked candor would not be an imputation of dishonesty. The >> most that might be said is that it is usually less than civil >> (and probably not very useful) to accuse another list member >> of not having an open mind or of not being fair. >> >> Perhaps in context Michael could reasonably have been >> understood to mean "candor" in that sense. After all, he >> prefaced the accusation with a statement that Eugene >> supposedly "trivialize[d] matters" that Eugene supposedly >> "either [did not] know much about or lack[ed] sympathy for." >> >> But when Eugene responded (as I would have) with a post that >> showed that he understood the word to have been used in the >> second sense, then Michael should have said that he was not >> accusing Eugene of being dishonest. Michael did not do so. >> Thus I have to assume that he meant to make an accusation of >> dishonesty. >> >> The accusation is baseless. I think an apology is called for. >> >> Mark S. Scarberry >> Pepperdine University School of Law >> >> >> -Original Message- >> From: Volokh, Eugene [mailto:[EMAIL PROTECTED] >> Sent: Wednesday, November 09, 2005 9:55 AM >> To: Law & Religion issues for Law Academics >> Subject: RE: Candor >> >> Well, here's the quote that Prof. Newsom seems to be alluding >> to: "In case it wasn't clear, my point is that Catholics >> today are (I hope and believe) quite different from Catholics >> of 500 years ago, and more open to genuine alliance with, >> respect towards, and even affection towards Protestants who >> disagree on some liturgical questions, but agree on deeper >> questions, both theological (acceptance of Jesus) and moral >> (rejection of abortion)." >> (htt
RE: FYI: An Interesting "See You at the Pole" Case
If and when such a "critique" appeared I could judge it on its merits. I would be hard-pressed to see its relevance to the list, though. Richard Dougherty -- Original Message -- From: "Newsom Michael" <[EMAIL PROTECTED]> Date: Thu, 3 Nov 2005 12:23:07 -0500 >Would a critique of the Catholicity of Scalia (or Thomas?) be offensive >is made by a Catholic? > >-----Original Message- >From: Richard Dougherty [mailto:[EMAIL PROTECTED] >Sent: Wednesday, November 02, 2005 11:20 PM >To: Law & Religion issues for Law Academics; Law & Religion issues for >Law Academics >Subject: RE: FYI: An Interesting "See You at the Pole" Case > >I would only add to Eugene's thoughtful reminder that gratuitous attacks >on the Catholicity of Scalia (or Thomas?) might be more effective -- >though still offensive -- if they were accurate. I think there is no >evidence that they do not take seriously Catholic teaching on the death >penalty. >Richard Dougherty > >-- Original Message -- >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >Reply-To: Law & Religion issues for Law Academics > >Date: Wed, 2 Nov 2005 15:30:25 -0800 > >>I don't think we need to be terribly "amaze[d]" here. Justice >>Scalia, I think, has made his views on actual innocence claims and on >>abortion rights quite clear: As he reads the text, original meaning, >>and tradition, the Constitution says nothing about either abortion >>rights or about actual innocence claims -- it guarantees certain >>traditionally provided procedures, but appellate review after trial of >>actual innocence claims is not one of them. >> >>Justice Scalia, I think, has also made his views on morality and >>religion in judging quite clear: He doesn't think that he is entitled >>to impose constitutional constraints in the name of his morality and >>religion (though if he agreed with Catholic anti-death-penalty >teaching, >>he might be obligated to resign). His opposition to constitutional >>protection for abortion rights, he tells us, is prompted by his >>understanding of the Constitution, not his understanding of Catholic >>doctrine; and I see little reason to doubt him on this, especially >given >>that he is following the footsteps of non-Catholics Rehnquist and >White. >> >>Naturally, none of this is remotely new; and I was surprised >(though >>not amazed) that the matter would even come up, given that the >>explanation seems so eminently straightforward. Nonetheless, I thought >>I'd repeat it, for those who are in the mood to have their amazement >>cleared up. >> >>Eugene >> >>-Original Message- >>From: [EMAIL PROTECTED] >>[mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman >>Sent: Wednesday, November 02, 2005 3:18 PM >>To: Law & Religion issues for Law Academics >>Subject: Re: FYI: An Interesting "See You at the Pole" Case >> >> >>I wonder what would happen if the Catholics on the Court suddenly took >>seriously their Church's noble and thoughtful opposition to the death >>penalty. It always amazes me that Justices can talk about morality and >>religion, oppose abortion rights, but have no qualms at all about the >>death penalty, even in cases where there are real doubts about the >guilt >>of the person being executed or about the fairness of the trial. I >>recall a case out of Texas (I am alas on the road and can't offer a >>cite, it might have been Hernandez v. Texas, however) in which one of >>the justices (perhaps Scalia) said that the Court was not interested in >>guilt or innocence. >> >>Paul Finkelman >> >> >___ >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: FYI: An Interesting "See You at the Pole" Case
I would only add to Eugene's thoughtful reminder that gratuitous attacks on the Catholicity of Scalia (or Thomas?) might be more effective -- though still offensive -- if they were accurate. I think there is no evidence that they do not take seriously Catholic teaching on the death penalty. Richard Dougherty -- Original Message -- From: "Volokh, Eugene" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Wed, 2 Nov 2005 15:30:25 -0800 >I don't think we need to be terribly "amaze[d]" here. Justice >Scalia, I think, has made his views on actual innocence claims and on >abortion rights quite clear: As he reads the text, original meaning, >and tradition, the Constitution says nothing about either abortion >rights or about actual innocence claims -- it guarantees certain >traditionally provided procedures, but appellate review after trial of >actual innocence claims is not one of them. > >Justice Scalia, I think, has also made his views on morality and >religion in judging quite clear: He doesn't think that he is entitled >to impose constitutional constraints in the name of his morality and >religion (though if he agreed with Catholic anti-death-penalty teaching, >he might be obligated to resign). His opposition to constitutional >protection for abortion rights, he tells us, is prompted by his >understanding of the Constitution, not his understanding of Catholic >doctrine; and I see little reason to doubt him on this, especially given >that he is following the footsteps of non-Catholics Rehnquist and White. > >Naturally, none of this is remotely new; and I was surprised (though >not amazed) that the matter would even come up, given that the >explanation seems so eminently straightforward. Nonetheless, I thought >I'd repeat it, for those who are in the mood to have their amazement >cleared up. > >Eugene > >-Original Message- >From: [EMAIL PROTECTED] >[mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman >Sent: Wednesday, November 02, 2005 3:18 PM >To: Law & Religion issues for Law Academics >Subject: Re: FYI: An Interesting "See You at the Pole" Case > > >I wonder what would happen if the Catholics on the Court suddenly took >seriously their Church's noble and thoughtful opposition to the death >penalty. It always amazes me that Justices can talk about morality and >religion, oppose abortion rights, but have no qualms at all about the >death penalty, even in cases where there are real doubts about the guilt >of the person being executed or about the fairness of the trial. I >recall a case out of Texas (I am alas on the road and can't offer a >cite, it might have been Hernandez v. Texas, however) in which one of >the justices (perhaps Scalia) said that the Court was not interested in >guilt or innocence. > >Paul Finkelman > > ___ 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: Faith tests okayed for campus Christian group at ASU
I don't have an answer but I have a related question: if the Universities prevail, will Bob Jones be revisited? Richard Dougherty -- Original Message -- From: Susanna Peters <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Thu, 20 Oct 2005 23:41:28 -0400 >Does anyone have a thought as to how, or if, Rumsfeld v. Fair may impact >this scenario? If the govt prevails, and so can withold funding from the >schools who refuse to allow military access, despite the law school's >claimed associational rights and desire to promote non-discrimination >policies, can Universities then argue the same logic allows them to deny >funding to campus groups that want funding but do not want to be >accessible to all even if its due to religious reasons. Maybe FAIR >was already discussued in this context and I missed it. If so, >apologies in advance. >Susanna Peters ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New lawsuit against U Cal Berkeley
Yes, and I think you have made my point, if it wasn't clear. To say that evolution and theism are not instrinsically incompatible is to say that religions that teach that they are intrinsically incompatible are wrong. I don't see any alternative. Does it make sense to say that some religions say that they are compatible, some say they are not, but the fact is that they are not - and hold that as a neutral conclusion? If we are going to play the game of neutrality (which, to tie this back into religion law, I don't think is necessary), then we have to be neutral. Saying that religions that teach the two are incompatible are wrong because some people think they are compatible is not simply a statement of fact, but a judgment of content. -- Original Message -- From: Ed Brayton <[EMAIL PROTECTED]> Date: Tue, 18 Oct 2005 23:52:23 -0400 >Richard Dougherty wrote: > >>Ed: >>I take it that Frank's point (he will correct me if I'm wrong, I hope) is >>that saying that some religious people acccept evolution does not necessarily >>lead to the conclusion that therefore there is no instrinsic incompatibility. >> The most one can say is that these people do not see any instrinsic >>incompatibility. No? >> > >No. The most that anyone can say is that evolution either conflicts or >does not conflict with /their/ religious views, not that evolution >conflicts or does not conflict with "religious views" in general. >Evolution is not incompatible with theism, it is only incompatible with >some specific theistic viewpoints. Thus, there is no inherent conflict >between evolution and religion, but only between evolution and those few >specific religious viewpoints. Those who argue that those who find them >compatible are wrong are really only saying that the other person's >religious views are wrong. The website takes no position on the question >of whose views are right and wrong, it merely notes that some religious >views are compatible with evolution and some are not. > >Ed Brayton > > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New lawsuit against U Cal Berkeley
Ed: I take it that Frank's point (he will correct me if I'm wrong, I hope) is that saying that some religious people acccept evolution does not necessarily lead to the conclusion that therefore there is no instrinsic incompatibility. The most one can say is that these people do not see any instrinsic incompatibility. No? If the page is going to stick to facts, which I applaud, it should. (FWIW, I'm not a young earther, but neither do I think that the children _and_ the flowers are my sisters and my brothers -- or cousins.) Richard Dougherty Ed Brayton wrote (in part): > >You have to keep in mind that the NCSE page that is referenced is not >intended to be shown to students. It is merely a reference for teachers >to show them that some religious groups do in fact accept evolution and >therefore there is no intrinsic incompatibility. > >Ed Brayton > > ___ 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: "The Devil Went Down to Georgia"
The band director doesn't seem to make clear whether he thinks it is illegal to play it, but is trying to prevent trouble. List members so far have suggested this is an over-reaction; if that is true (it may very well be), why do you think people have drawn that conclusion? Answering that may lead us to some conclusions about the connection between academic life and the more common American perception. Richard Dougherty ___ 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: Hostility
Well, I thought I was actually avoiding the political problem you address here. My suggestion was not that the government provide subsidies to religious schools; that is the voucher system I was not talking about, and am not really in favor of. If by subsidy you mean not compelling parents to pay twice for their child's education, then I guess I wouldn't agree that that's a subsidy. Whether we should abolish public education is a different question, and whether we should abolish mandatory schooling is another different question, which I'd be happy to talk about off-list. But I'm not sure that "universal public education" is a "liberal ideal," until we define terms. My point about avoiding 1A issues was that the typical cases (?) arise in public school settings, and some of that could be avoided by my proposal. Richard Dougherty -- Original Message -- From: Steven Jamar <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Mon, 29 Aug 2005 06:45:01 -0400 >Why should anyone be exempt from paying for public education? If >Christians don't need to pay for it, why should people without school- >age children? Why not just get rid of public education and mandatory >schooling entirely? Isn't that the libertarian position you are >really advocating Richard? > >How does government subsidy of religious schools that discriminate in >hiring and indoctrinate students in particular religious beliefs >avoid 1A issues? Or is it that those of us who believe in liberal >ideals like universal public education are just less likely to sue >because of lack of standing? > >Steve > >On Aug 28, 2005, at 11:57 PM, Richard Dougherty wrote: > >> Alan: >> >> I understand amd appreciate your frustration on this issue. I'm >> not sure, though, if you are expressing concern about a >> constitutional point or a public policy point, or both. Many >> believers, of course, think that they are being excluded from >> public schools because of their own religious beliefs not being >> welcome, and thus end up double-paying for education. >> >> I do think that it gets easier to see Rick's point if instead of >> referring to public schools as government-funded we think of them >> as taxpayer-funded, or parent-funded. >> >> What if, instead of arguing for a full-blown voucher plan, we >> started out smaller; parents with school-aged children, say, being >> exempt from paying school taxes if their children are not using the >> taxpayer-funded system? That would avoid a lot of the 1A issues >> that we face all the time (largely because those without children >> in the schools are less likely to get involved in litigation, and >> may not have standing anyway). >> >> Richard Dougherty > >-- >Prof. Steven D. Jamar vox: >202-806-8017 >Howard University School of Law fax: >202-806-8428 >2900 Van Ness Street NW >mailto:[EMAIL PROTECTED] >Washington, DC 20008 http://www.law.howard.edu/faculty/ >pages/jamar > >"I have nothing new to teach the world. Truth and nonviolence are as >old as the hills." > >Gandhi > > > > > > ___ 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: Hostility
Alan: I understand amd appreciate your frustration on this issue. I'm not sure, though, if you are expressing concern about a constitutional point or a public policy point, or both. Many believers, of course, think that they are being excluded from public schools because of their own religious beliefs not being welcome, and thus end up double-paying for education. I do think that it gets easier to see Rick's point if instead of referring to public schools as government-funded we think of them as taxpayer-funded, or parent-funded. What if, instead of arguing for a full-blown voucher plan, we started out smaller; parents with school-aged children, say, being exempt from paying school taxes if their children are not using the taxpayer-funded system? That would avoid a lot of the 1A issues that we face all the time (largely because those without children in the schools are less likely to get involved in litigation, and may not have standing anyway). Richard Dougherty -- Original Message -- From: "A.E. Brownstein" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Sun, 28 Aug 2005 14:58:52 -0700 >I understand Rick's commitment to vouchers and appreciate the fact that >some Christian teachers will find teaching more fulfilling if they are >employed by a private religious school. But I am disappointed and >frustrated by his suggestion that a voucher program pursuant to which half >of all families send their children to religious schools that discriminate >on the basis of religion in hiring is somehow a win-win scenario for >members of non-Christian faiths seeking jobs as teachers. When Christian >teachers seek jobs in voucher funded religious schools, that isn't going to >open up job opportunities for religious minorities. The increase in jobs in >religious voucher schools will occur because half the students that used to >be in public schools will not be there any more -- and the number of >teaching jobs in those schools will be correspondingly reduced. Without >vouchers, no teacher of a minority faith will be barred from teaching at >any publicly funded school solely because of his or her religious beliefs. >Under my hypothetical, these teachers would be ineligible for approximately >half of the jobs they could currently compete for. That is a dramatic >decline in their employment opportunities -- and it is a burden based >solely on their religious beliefs. The fact that minorities may benefit >from religious restrictions in the much more limited number of schools >sponsored by their own faith can not possibly offset the number of jobs >from which they will be excluded. > >I understand that church-state issues often involve complex trade-offs. I >also understand that for some people the cost-benefit analysis favors >government funding of religious schools for a variety of reasons. But that >is no reason to act as if the costs of voucher programs or direct aid >programs do not exist -- particularly if we are assuming very substantial >participation in such programs. I have been struck over the many years I >have been writing about and discussing the issue of government funding of >religious programs either in education or social services how hard it to >get people who support direct or indirect aid programs to concede that >there is any burden at all on members of minority faiths when they are >denied eligibility for government funded jobs. This comment isn't directed >so much at Rick, although his post raised the issue. And certainly there >exceptions to my point (Tom Berg is an example). > >But some of the brightest people I know in the church-state area seem to >have a blind spot on this issue -- and I just don't understand it. > >Alan Brownstein >UC Davis > ___ 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: Hostility
Alan: I agree with most everything you say here, and especially with your identification of some of the root problems which lead to making overwhelming demands on the public school sysytem. I ask, then, only because I don't know, when you would have been going through the school system that operated in the manner you describe. The reason I ask is I'd like to see if there is any consensus on the list that schools functioned the way you describe them in your first paragraph. Would this have begun in the post-early-60s? By 1970? 1980? When do people think other factors began to enter in? Richard Dougherty -- Original Message -- From: "A.E. Brownstein" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Tue, 23 Aug 2005 15:09:37 -0700 >I appreciate the power of Tom's argument (and his caveat at the end.) > >I offer three modest responses. First, I recognize that schools taught the >"consensus" principles of Christianity for a long time. But there was a >period after that consensus unraveled >and before schools began to take on a lot of what I view as extraneous >programs -- when public schools, at least in places like the Bronx, >operated the way that I have described them. We did have the Regents >prayer, but there was very little of anything else regarding religion -- >and none of the new stuff. Schools did a very good job on the academics. >Parents, houses of worship, after school religious classes and other >mediating institutions took care of the many other important aspects of a >young person's education. > >Second, I think the reason the schools have taken on some much more of this >non-academic role has less to do with people thinking this is really the >proper role for schools (although I recognize that this part of the story) >and more to do with social changes that have made it less convenient for >families and after school mediating institutions to do their jobs. (e.g. >suburban lifestyles, two worker families etc.) I would like to see us >spend more time figuring out how to facilitate the role of families and >after school mediating institutions and less on fragmenting the public >along religious lines. > >Third, I do not for a moment discount the deep lack of consensus over >highly value-laden issues in our society. But I also think we should not >ignore the rich grounding of consensus that does exist. I don't want to >understate the difficulty people will have working together. But I do think >when people have the chance to see what they have in common, and recognize >that some of their feelings about their schools not being sensitive to >their beliefs and their children's needs are shared fairly broadly -- but >in different ways, then it becomes a bit easier for people to work out ways >to reconcile their differences. > >Alan Brownstein >UC Davis > > > >At 12:36 PM 8/23/2005 -0500, you wrote: >>I agree, Alan, that there was religious teaching in public schools well >>before the modern instances of teaching highly value-laden matters in >>secular terms (sex education, values clarification etc.). But that >>religious teaching was frequently part of the "limited and traditional" >>public school to which you refer. The conclusion that strikes me powerfully >>from this is that public schools have very seldom been, and will very seldom >>be, as limited in their aspirations as you suggest they can and should be. >>People will always insist that public schools must go well beyond the three >>Rs and into normative formation of children. >> >>For a long time in the past, the normative body of thought that the majority >>believed should be taught was the supposed "consensus" principles of >>Christianity. Over time, the argument has become strong that trying to >>teach such principles in state schools is inappropriate because there is a >>deep lack of consensus (outside Christianity, and inside) over such >>principles, with many people rejecting them as a starting point. But the >>lesson of that argument, I'd submit, has not been learned by those today who >>(like their religious predecessors) want the public schools to teach >>normatively on value-laden issues, but now just want to leave out the >>religious perspectives from the normative teaching and teach only the best >>and highest secular perspectives relative to the issues. The same problem >>is present: a deep lack of consensus over highly value-laden issues, this >>time with many religious people rejecting the basic starting premise that >>the issues can be addressed normatively without expl
Re: Assaults on the England language/"republican" v."democracy"
Mark: Do you have a particular case or series of cases in mind? I'd appreciate a cite. Thanks, Richard Dougherty Mark Graber wrote: For those interested, until 1939, not one majority opinion on the Supreme Court spoke of the United States as a democracy or had anything good to say about democracy (Brandeis did, but in concurring and dissenting opinions). The floodgates opened in 1939. MAG >>> [EMAIL PROTECTED] 07/22/05 08:32AM >>>In a message dated 7/22/2005 3:21:54 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Put another way, Republicans believe they have at least as good a claim as Democrats to being committed to democratic principles; given their view that Democrats wish to use nondemocratic courts to overturn democratic decisions on matters such as abortion and gay marriage, Republicans see themselves as more democratic than Democrats. Mark is on to something that transcends this thread and probably should be discussed on the ConlawProf List. In my view, the terms "democratic" and "democracy" have replaced the term "republican" in popular culture, and even in the use of pretty sophisticated statespersons, politicians, constitutionalists, and jurists. Most of the features of republican theory--such as, representative democracy, the common good, civic virtue, and so forth--have been absorbed by the term "democracy." Indeed, I would venture a guess that the use of "republican," save for occasional use on radio talk shows, is reserved, of course only for the most part, to political philosophy. Thus, when people talk about self-rule or self-government, they usually think of democracy not republicanism. One continued use--a tedious one in my view--still appears in discussions of the countermajoritarian problem or when indicting the Court for being antidemocratic. Accusing the courts of being countermajoritarian or antidemocratic is met with the predictable refrain "The Constitution creates a republic not a democracy." In my view, this distinction, or shall I say this dichotomy, is typically a conversation-stopper, and forestalls the pursuit of the best theory of democracy. I suspect that this point, regrettably, is still controversial; but in my view it should not be. Strictly speaking, few commentators advocate pure majoritarianism or even pure directdemocracy. Thus, I would think "republicanism" should be granted a well-deserved retirement. All the distinctions and points that some think can only be articulated by using "republican" can be made through the capacious tent of "democracy," and that's where they should be made. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ 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: Assaults on the England language
I agree entirely with Mark Graber; we have had fruitful discussions in the past about the use of terms such as "Judeo-Christian" and "totalitarian," and I think Rick's addition of terms such as fundamentalist and homophobic, as well as anti-choice or anti-abortion might be thrown in the mix. Richard Dougherty Mark Graber wrote: > I suppose the best solution is that we all use the words we believe best > convey our meanings, keeping in mind the virtues of civility on this > list. Others may challenge our usages, and we then deciding whether to > accept amendments. > > MAG ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rick Perry and separation of church and state
Agreed on point one, though the question of constitutionality is very much up in the air. As to the second point, I was actually thinking of insurance coverage requirements, which were put in place in Texas (as in many states) by the legislature, though signed into law by the governor (in this case, Perry). My guess here is that he was willing to offend many supporters on the issue, and the fact that they might be religious "conservatives" seemed to make no difference. Richard Dougherty -- Original Message -- From: "Sanford Levinson" <[EMAIL PROTECTED]> Date: Mon, 6 Jun 2005 22:35:50 -0500 >I think we are in substantial agreement about "the character of Perry's >act," which is something different from his understanding of what >restraints he might properly feel under when he acts as Governor (by >signing a bill). > >As to your second question, I have some sympathy with it. I think the >obvious problem is how, if at all, we could possibly construct "moral >opt outs" with regard to payment of taxes. I would allow you to avoid >subsidizing abortion if you'd allow me to avoid subsidizing the current >interrogation practices of the U.S. government, and so on. I don't mean >to make light of your question. It raises the deepest question about >the ways we construct a political life together (including the payment >of taxes) in a truly pluralistic social order. > >sandy > >-Original Message- >From: [EMAIL PROTECTED] >[mailto:[EMAIL PROTECTED] On Behalf Of Richard >Dougherty >Sent: Monday, June 06, 2005 11:28 PM >To: Law & Religion issues for Law Academics; Law & Religion issues for >Law Academics; Law & Religion issues for Law Academics >Subject: RE: Rick Perry and separation of church and state > >Sandy: >Doesn't your point here indicate the character of Perry's act? That is, >he is apparently trying to score political points with a sector of the >party. The fact that it is a religious group is interesting, but >otherwise not very noteworthy. As you note, someone like Jim Wallis >(and lots of other Protestants and others) is not likely to be hired by >Perry as a speechwriter or consultant, but that's not because of his >religious views but because of his political views. In other words, >there's no reliable religious majority. > >To your understanding of the spirit of the First Amendment, to "avoid >using one's official position to give needless offense to persons with >different religious views by making them feel marginal members of the >community" -- would that include not requiring adherents to religions >that reject abortion and contraception to pay for others to have access >to such? > >Richard Dougherty > > -- Original Message -- >From: "Sanford Levinson" <[EMAIL PROTECTED]> >Reply-To: Law & Religion issues for Law Academics > >Date: Mon, 6 Jun 2005 18:31:24 -0500 > >>Mark raises an interesting point. Would it have been objectionable for >Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably >not. Not only is there a "close fit" between RFRA and religion, but one >could also use the occasion for a general civics lecture on the >importance of accommodating those whose religious observances would >otherwise make it difficult to participate fully in the economy or >American life more generally (a little bit like the defense of >reproductive rights, as a matter of fact!). But Perry's bill has >nothing whatsoever to do with defending the rights of the religious as >such, unless one argues that "a special right of the religious" is to >have some special say in depriving others of their rights (to >reproductive choice). I know this is a completely tendentious way of >putting it, not least because a) there are lots of religious people who >support reproductive choice; and b) there are in fact a fair number of >secularists who have been p! > ersuaded that abortion is murder and support limting reproductive >choice. >> >>sandy >> >> >___ >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 me
RE: Rick Perry and separation of church and state
Sandy: Doesn't your point here indicate the character of Perry's act? That is, he is apparently trying to score political points with a sector of the party. The fact that it is a religious group is interesting, but otherwise not very noteworthy. As you note, someone like Jim Wallis (and lots of other Protestants and others) is not likely to be hired by Perry as a speechwriter or consultant, but that's not because of his religious views but because of his political views. In other words, there's no reliable religious majority. To your understanding of the spirit of the First Amendment, to "avoid using one's official position to give needless offense to persons with different religious views by making them feel marginal members of the community" -- would that include not requiring adherents to religions that reject abortion and contraception to pay for others to have access to such? Richard Dougherty -- Original Message -- From: "Sanford Levinson" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Mon, 6 Jun 2005 18:31:24 -0500 >Mark raises an interesting point. Would it have been objectionable for >Clinton to go to a church, synagogue, or mosque to sign RFRA? Probably not. >Not only is there a "close fit" between RFRA and religion, but one could also >use the occasion for a general civics lecture on the importance of >accommodating those whose religious observances would otherwise make it >difficult to participate fully in the economy or American life more generally >(a little bit like the defense of reproductive rights, as a matter of fact!). >But Perry's bill has nothing whatsoever to do with defending the rights of the >religious as such, unless one argues that "a special right of the religious" >is to have some special say in depriving others of their rights (to >reproductive choice). I know this is a completely tendentious way of putting >it, not least because a) there are lots of religious people who support >reproductive choice; and b) there are in fact a fair number of secularists who >have been p! ersuaded that abortion is murder and support limting reproductive choice. > >sandy > > ___ 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: Harm to Others as a Factor in Accommodation Doctrine
Though this isn't a theology list, a clarification is in order; the Catholic Church does not recognize the validity of Episcopalian ordinations. They were rejected by the Church as early as 1554, and definitively in 1896. Episcopalian ministers who convert to Catholicism must be ordained as Catholic priests. I presume the last statement was an attempt at humor, but I'm afraid succeeds only in being offensive. Richard Dougherty Jean Dudley wrote: > Marci said: > > > I would disagree, because any woman who wants to be a priest is > > clearly at odds with heavily document ecclesiology in the Church that > > forbids them becoming a priest. Their views, therefore, cut them out > > of the picture before you even get to gender. > > As a side note, the Episcopal church in America ordains female priests. > Not "ministers", but priests. Doctrinally, the two churches are very > close, with the exception of the doctrine that the Pope is the > spiritual head of the church. In fact, the Catholic church accepts the > ordination of male priests by the Episcopal church, insofar as to allow > married male priests to convert and retain their ordination. This has > been under-publicized, but there are many former Episcopal priests > serving as Catholic priests who are married. They are not required to > follow the rule of celibacy. > > Many priests converted due to increasing disaffection with the > Episcopal church's liberal policy of ordaining homosexuals and > lesbians. > > Presumably they would have to acknowledge the pope's authority, which > was the original issue that forced the schism under Henry VIII. > > I'm not sure what bearing this has on the discussion, but it seems that > if the Catholic Church can bend the rule of celibacy for male priests, > surely they can bend the rules about women lacking that wee bit of > proud flesh, but who uphold the authority of the pope and are willing > to abide by the rule of celibacy. ___ 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: Rights of clergy regarding same-sex marriage?
Paul, et al: I know others have written about this, but at what point did we come to view marriage as only or primarily a religious action or institution? Surely lots of cultures have had marriages which were not religious (?) And don't many people today want their marriage to be recognized by the state as a marriage, even when they are not religious? Richard Dougherty Paul Finkelman wrote: > James makes a good point, and should be taken a step further; have the > governemtn get out of the marriage business. Let religious institutions > perform marriage and have the government regulate civil unions for all > people; civil unions are contracts that cover property, child support > and rearing, custody, end of life decisions, etc. All the proper > jurisdiction of the state; "marriage" is a relgiious action that should > not involve the state. This avoids the "separate but equal" fear of > Jean Dudley > > Paul Finkelman > > Jean Dudley wrote: > > > > On Mar 15, 2005, at 1:02 PM, James Maule wrote: > > > >> Civil birth registration and baptisms/christenings are separate. So, > >> too, are death registrations and funerals/memorial services. Why not > >> separation of marriage and whatever one wants to call state sanctioning > >> of pairing? > >> > >> Jim Maule > > > > > > Three words: "Separate but equal". > > > > Marriage is both religious and civil. In contemporary usage, it denotes > > those who have undergone either civil or religious ceremonies to > > solemnize their relationship. What you are proposing is a shift away > > from marriage as a civil right as well as a religious ceremony. > > > > Of course, the current model is to my right; Vermont has "civil unions" > > as well as marriage. While mixed-gender couples are allowed to have > > civil unions, same-sex couples are not allowed to have marriages. > > Further, I'm not sure federal government will recognize civil unions in > > place of marriage. If they do, I'd be willing to bet they don't extend > > federal marriage rights to gay couples who have joined civilly. > > > > Jean Dudley > > http://jeansvoice.blogspot.com > > Future Law Student > > > > ___ > > 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. > > -- > Paul Finkelman > Chapman Distinguished Professor > University of Tulsa College of Law > 3120 East 4th Place > Tulsa, Oklahoma 74104-2499 > > 918-631-3706 (office) > 918-631-2194 (fax) > > [EMAIL PROTECTED] > > ___ > 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: Free Exercise, Free Speech, and harm to others
Eugene: You suggested that we don't know the meaning of the free speech clause, and the result is that we should read it very broadly, to protect even "speech-related" harm to others. (And would that judgment ultimately be made by...judges?) But because we think we know more about the meaning of free exercise, it should be read much more narrowly, to protect no harm, even when it might be an incident of true "exercise" of religion? Do I have that right? Richard Dougherty "Volokh, Eugene" wrote: > I actually agree with Greg on much here: The reason that we > allow people to inflict various harms on others via their speech has a > lot to do with *the way* the harm is inflicted: When harm is inflicted > by persuading, informing, or offending people with the content of > speech, we treat that infliction of harm as privileged. > > And that's the reason that I think it's a mistake to say (and > Greg hasn't said it, but I think others have), "The Free Speech Clause > caselaw gives people the constitutional right to harm others through > speech, so the Free Exercise Clause should be interpreted as giving > people the constitutional right to harm others through religiously > motivated conduct." The Free Speech Clause caselaw lets people harm > others through some specific speech-related ways. It doesn't follow > that the Free Exercise Clause lets people harm others in other ways -- > whether through discriminating against them, trespassing on their > property, breaching contracts, and so on, even if the harms are > comparatively minor. > > 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.
Re: Free Exercise, Free Speech, and harm to others
Eugene: Are you grounding your analysis here of speech and religion in the text of the First Amendment? It seems to my untutored eye that it is precisely "exercise" of religion that is protected, no? Is there any reason to think that exercise of religion might not be harmful? I guess my question is whether you see the harm done by religion as unprotected because of some constitutional reason (such as, it amounts to establishment)? Why would the religious motivation be treated any differently than an anti-religious motivation, or a commitment to Millian liberalism, or the will to power? If the protection for speech's harm, is that speech is good for democracy, cannot one make the same argument about much, if not all, religious exercise? (I'm not defending the principle that there is a right to harm, only looking for consistency.) Thanks, Richard Dougherty "Volokh, Eugene" wrote (in part): > The Free Speech Clause and other rights *are* rights to inflict > certain kinds of harm on others in certain ways (for instance, through > the communicative impact of speech); we think that for various reasons, > the government ought not be allowed to interfere with this harm, perhaps > because speech is so valuable to democratic self-government, or because > we suspect the government will abuse its regulatory powers. Likewise, > as I argue at > http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specific%20Prohib > itions%20on%20Government, in a few contexts (for instance, > discrimination in hiring clergy, or religious frauds), the Free Exercise > Clause also allows religious people or institutions to inflict what the > law might otherwise treat as harm to others. > > But we ought not read the Free Exercise Clause as generally > licensing religious objectors to inflict harm on others (or even to do > so subject to a possible strict scrutiny trump). As I argue, my > relationship with my God may be important to me, but it can't by itself > be a constitutionally sufficient justification for my harming you, even > slightly (for instance, by intentionally inflicting emotional distress > on you in secular ways, blocking access to your property, or slightly > vandalizing your commercial building). From your perspective and the > legal system's perspective (even if not from my own), my God is my God, > not yours, and the Constitution doesn't give those acting in His name > sovereignty over your legally recognized rights and interests. > ___ 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: Protestants and non-Protestants
Good question. I think it doesn't matter in practice, for the moment, but may in the longer term. That is, indifference may simply be a sign of lack of reflection on the matter, and leaves open the possibility of changing policy or interpretations by persuasion; if hostility is the motivation, you're far less likely to be successful in getting a change. -- Original Message -- From: "Brad Pardee" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics Date: Tue, 8 Mar 2005 07:01:49 -0600 >I wonder, though, to the believer (in any faith), if the ultimate effect is >any different whether the government is actively hostile or simply >indifferent. I think Stephen Carter's book, "The Culture of Disbelief", >gives some good examples (including non-evangelical Christian examples) of >people whose faith was simply dismissed on the grounds of what might be >termed "the public good". > >In the end, if the government prohibits what my faith commands or commands >what my faith prohibits, does it really make a difference whether the >government was openly hostile or simply didn't care? > >Brad Pardee > >- Original Message - >From: "Richard Dougherty" <[EMAIL PROTECTED]> > >But I think it also simply a matter of fact that there are many in the >government, including the judidicary, who are hostile to religion, and to >deny that is to miss what I thought was gimme. That is not to deny that >some believers are hostile to non-believers; indeed, I take that as a fact >as well. I suppose I could have been more precise and avoided saying that >there is a "governmental" movement that is hostile to religion, instead of >saying there are some in government who are so moved (I think it means the >same thing, but could have been clearer). > >___ >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: Protestants and non-Protestants
Alan: I think I agree with everything that you say. I was not trying to make an argument, but simply stating what I thought was an obvious fact -- that many people think government is hostile to religion. (I don't think I said that "most Americans" think that, or that "most Americans" are hostile to religion.) I agree that people of good will and sound mind can disagree on these issues, and thus of course I would not suggest that Doug or Tom -- or Alan! --are hostile to religion. It seems to me, for instance, that religious groups ought to be more interested in whether or not their adherents know what the Ten Commandments are, and abide by them, than whether or not they can be displayed on public grounds. But I think it also simply a matter of fact that there are many in the government, including the judidicary, who are hostile to religion, and to deny that is to miss what I thought was gimme. That is not to deny that some believers are hostile to non-believers; indeed, I take that as a fact as well. I suppose I could have been more precise and avoided saying that there is a "governmental" movement that is hostile to religion, instead of saying there are some in government who are so moved (I think it means the same thing, but could have been clearer). But even those who defend religion in the public square do it largely as something other then religion --it's our history, or it's free speech, or it's economic activity, etc. I understand that is a tactical decision, meant to get legislation passed and win court cases, but the need to resort to such claims is part of the reason some people think "the government" is hostile to religion. The Tocqueville point, again, was simply an observation; if one reads Tocqueville on religion, it is hard to see America in 2005 there. But that strikes me now as an off-list topic, so I'll not pursue it. Richard Dougherty -- Original Message -- From: "A.E. Brownstein" <[EMAIL PROTECTED]> Date: Mon, 07 Mar 2005 12:30:55 -0800 >Richard, > >I understand that some religious people think that government today is >hostile to religion, but I think this is a singularly unhelpful way to >understand current church-state issues - and it tells us very little >about the actual relationship between government and religion in our society. > >I say this for several reasons: > >1. It is also the case that many non-religious people believe that >government is hostile to non-religious beliefs and individuals -- and that >government demonstrates obvious preferences for religion. I suspect there >is more unanimity among non-religious people on this point than there is >unanimity among religious people that government is hostile to religion >(although the latter group is larger because many more people are religious >than non-religious in our society). > >2. The same governmental actors (including judges) take positions that, >depending on one's perspective, are both helpful and hurtful to religion. >(See, e.g. Justice Kennedy condemned as hostile to religion in cases like >Boerne, Lawrence, and Lee v. Weisman but praised as supportive of religion >in Lukumi Babalu Aye, his dissent in County of Allegheny, and his apparent >position in the Ten Commandments cases.) > >3. The simple reality is that people who can not be fairly or reasonably >characterized as hostile to religion take some positions that some people >view as hostile to religion. In the recent discussion on this list >regarding the Ten Commandments cases both Doug Laycock and Tom Berg were >critical of government expressing religious speech through prayer and >religious displays. People may disagree with their position on this issue, >but it would be absurd to suggest that either of these scholars is hostile >to religion. > >4. Many church-state issues involve costs to, and benefits for, religion >however the issue is resolved. The fact that many people add these plusses >and minuses up differently reflects differences in judgement and >differences in values (often based on different religious perspectives) -- >but that is very different than hostility toward religion. > >5. Of course, there are some people who are primarily hostile to religion. >And there are some people who are primarily hostile to non-religious >beliefs or the beliefs of particular faiths. But most individuals and >institutions have more complex reasons for what they do -- and we >accomplish little by subsuming government or "most Americans" into either camp. > >Alan Brownstein >UC Davis > > > > >At 01:04 PM 3/7/2005 -0600, you wrote: >>I think it's fairly safe to say that Toc
Re: Protestants and non-Protestants
I think it's fairly safe to say that Tocueville would not recognize the role religion plays, or doesn't play, in modern America. That there is no active governmental movement that is hostile to religion would surprise quite a few people, on the left and right. -- Original Message -- From: Ed Darrell <[EMAIL PROTECTED]> Date: Sat, 5 Mar 2005 15:40:03 -0800 (PST) >It seems to me that by the standards deTocqueville used, and especially by the >standards cited by Justice Brewer's opinion in Holy Trinity, we are much more >tolerant of religious expression than in the past. For example we now have >"In God We Trust" on our coins, and also as an official motto of the nation. >Most of the attempts to formalize school prayer took place after 1945. The >placement of the Ten Commandments monuments, regardless the ultimate >disposition of the cases on their legality, were almost without exception >after the release of DeMille's movie, "The Ten Commandments," in the early >1950s. > >Certainly there is no active move on the part of government to be hostile to >religion, and there are many tiny moves to go overboard in accommodation to >the point of violating the establishment clause. I think a careful analysis >would show no hostility toward religion, but instead an accommodation of >religious expression that occasionally strays into establishment. > >About the only thing that's changed from deTocqueville's visit is that despite >a broader tolerance of religious expression, a substantial minority of people >claim they are being discriminated against because they want more than the law >has yet allowed. > >Ed Darrell >Dallas > >Richard Dougherty <[EMAIL PROTECTED]> wrote: >Well, yes, but not in a political order where the government -- especially the >judiciary -- is seen by many as openly hostile to religion; this is a very >different America from the one Tocqueville observed. > >Richard Dougherty > ___ 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: Protestants and non-Protestants
>Does it matter that the government is not actually openly hostile to >religion? Or is the relevant inquiry really "is seen by many"? > >Steven Jamar Yes, it would matter, if it were true; but that is a debate for another setting. Here the relevant question, though, is what motivates many religious people, and that many think the government is hostile to religion I think is not much contested. Richard Dougherty > >On Saturday, March 5, 2005, at 09:12 AM, Richard Dougherty wrote: > >> Well, yes, but not in a political order where the government -- >> especially the judiciary -- is seen by many as openly hostile to >> religion; this is a very different America from the one Tocqueville >> observed. >> >> Richard Dougherty >> >-- >Prof. Steven D. Jamar vox: >202-806-8017 >Howard University School of Law fax: >202-806-8428 >2900 Van Ness Street NW >mailto:[EMAIL PROTECTED] >Washington, DC 20008 >http://www.law.howard.edu/faculty/pages/jamar > >"Rarely do we find men who willingly engage in hard, solid thinking. >There is an almost universal quest for easy answers and half-baked >solutions. Nothing pains some people more than having to think." > >- Martin Luther King Jr., "Strength to Love", 1963 > > > > > > ___ 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: Protestants and non-Protestants
Well, yes, but not in a political order where the government -- especially the judiciary -- is seen by many as openly hostile to religion; this is a very different America from the one Tocqueville observed. Richard Dougherty >And isn't that exactly what deTocqueville said he found? > >Ed Darrell >Dallas > >"A.E. Brownstein" <[EMAIL PROTECTED]> wrote: >Marci, of course, is more than capable of speaking for herself. But I would >think that the reference to religious "intensity of belief" that thrives in >an environment of religious neutrality may relate to the inspiration and >energy many religious groups experience in a regime of religious >voluntarism -- where the success of faith-based congregations and >communities depends on the personal commitment of religious individuals and >associations and the power of their beliefs, rather than their ability to >use the government to communicate self affirming messages or to subsidize >their activities. > > > >Alan Brownstein >UC Davis > > >At 04:33 PM 3/4/2005 -0600, you wrote: >>Tom: I like the term, and I don't think it's so ugly as you suggest. >> >>Marci: Do you think it is empirically true that, as you say, "The more the >>government is constrained to be neutral with respect to religion over the >>years, the more diversity and intensity of belief this society >>expresses"? I suppose I might agree with the diversity point, but >>intensity I would agree with only in a very limited sense. Thus, I think >>Tom is right about the secularizing "slippery slope," if you will (to use >>a favored phrase of our esteemed moderator). In addition, much of the >>public square agitating is clearly a response to what are taken to be >>hostile governmental -- let's face it, mostly judicial -- rulings. >> >>Richard Dougherty >> >> ___ 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: Protestants and non-Protestants
Tom: I like the term, and I don't think it's so ugly as you suggest. Marci: Do you think it is empirically true that, as you say, "The more the government is constrained to be neutral with respect to religion over the years, the more diversity and intensity of belief this society expresses"? I suppose I might agree with the diversity point, but intensity I would agree with only in a very limited sense. Thus, I think Tom is right about the secularizing "slippery slope," if you will (to use a favored phrase of our esteemed moderator). In addition, much of the public square agitating is clearly a response to what are taken to be hostile governmental -- let's face it, mostly judicial -- rulings. Richard Dougherty [EMAIL PROTECTED] wrote: Tom-- Thanks very much for your thoughtful answer. I completely agree with you on the first point. As a matter of fact, I think there is very little likelihood that this society can be secularized by government or any other entity. The more the government is constrained to be neutral with respect to religion over the years, the more diversity and intensity of belief this society expresses. The public square (which is to be distinguished from government space) is filled with religious ideas, political activity, and lobbying. Thus, I view the "secularization" thesis (used to justify government financial and other support for religion) as a myth at best, and a cover for intense political activity at worst, which is why I asked for clarification on what you meant by artificial secularization. Marci Tom-- Thanks very much for your thoughtful answer. I completely agree with you on the first point. As a matter of fact, I think there is very little likelihood that this society can be secularized by government or any other entity. The more the government is constrained to be neutral with respect to religion over the years, the more diversity and intensity of belief this society expresses. The public square (which is to be distinguished from government space) is filled with religious ideas, political activity, and lobbying. Thus, I view the "secularization" thesis (used to justify government financial and other support for religion) as a myth at best, and a cover for intense political activity at worst, which is why I asked for clarification on what you meant by artificial secularization. Marci (1) The belief that government is having this secularizing effect, and that itâ€s a problem, is (rightly or wrongly) held by people across varying faiths, not just by evangelical Protestants. (2) To ensure that a secular government doesnâ€t secularize society, government can take steps to preserve a vigorous private sector in religion. ___ 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: Ten Commandments: My Prediction
Alan: I think this would be appropriate in a document like the Declaration of Independence, but not in every court decision that is handed down; doesn't it suffice to know that we have different laws, and that's why we have different results? The claim of the Declaration, though, is a universal one, not particular, and thus the urgency of articulating the "American" postiion. Richard Dougherty "A.E. Brownstein" wrote: > And consistent with having "a decent respect to the opinions of mankind", > it would be appropriate for an American constitutional court to explain why > American constitutional law reaches a different conclusion with regard to > state establishments of religion than do other Western democracies, just as > we reach different conclusions about the regulation of hate speech and > other liberty and equality issues. Certainly, it is not uncommon for the > constitutional courts of other countries to explain why they are > unpersuaded by American constitutional doctrine in many cases. > > Alan Brownstein > UC Davis ___ 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: Ten Commandments: My Prediction
Alan: True. The differnece is that the founders thought they were right and the rest of the world wrong. Richard Dougherty "A.E. Brownstein" wrote: > I think there is a difference between "control" and having "a decent > respect to the opinions of mankind" which some of the framers seemed to > think was important in 1776. > > Alan Brownstein > UC Davis > > At 10:08 PM 3/1/2005 -0800, you wrote: > >It's a little hard to predict because I am not familiar with European > >views about displays of the Ten Commandments, and those seem to control > >the meaning of the US Constitution.63c726.jpg > > > >Rick Duncan > > > > > > > > > > > > > >Rick Duncan > >Welpton Professor of Law > >University of Nebraska College of Law > >Lincoln, NE 68583-0902 > >Red State Lawblog: www.redstatelaw.blogspot.com > > > >"When the Round Table is broken every man must follow either Galahad or > >Mordred: middle things are gone." C.S.Lewis, Grand Miracle > > > >"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or > >numbered." --The Prisoner > > > > > >Do you Yahoo!? > >Yahoo! Mail - Easier than ever with enhanced search. > ><http://us.rd.yahoo.com/evt=29916/*http://info.mail.yahoo.com/mail_250>Learn > >more. > >___ > >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: Ten Commandments
>I hesitate to ask this, but does anyone on the list genuinely think that >either of the displays in these cases is constututional? Marty: Do you mean are they constitutional, or will they pass muster with the current Court's understanding of what is consitutional? Those can be very different questions. And there is (at least) a third option: they don't pass muster, but somehow will be read to do so for this case(s). Richard Doughery ___ 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.
Evangelization, but new...
I don't want to perpetuate the earlier discussion of whether the listserv is the appropriate place for evangelization. What I do want to ask is whether there is any empirical data anyone knows of concerning accomodation and evangelism. I am routinely surprised at how many times list members express their surprise and, frankly, relief (though not agreement), when they discover that religious folk who defend their own public presence are willing to also allow other religions to have a say in the public sphere. My question, then, is whether anyone knows of studies analyzing attitudes of the religious and non-religious toward accomodation under the First Amendment. My very informal sampling suggests to me that Christians, for example, are not routinely hostile to the public display of religiosity, and evangelizing, among Muslims, Hindus, Sikhs, etc., though the alternative often seems to be expected. [I have explanations for that, but they are mostly off-list reasons.] Any suggestions? Richard Dougherty ___ 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: Supposedly Deistic nature of the Declaration of Independence
Whatever conclusion we might draw about the character of the Declaration's
God/Creator/Judge/Providence, it seems to me that the asssertion that the First
Amendment prohibits the government and its officials from stating that it is
true that we are endowed by our "Creator with certain unalienable rights" is an
assertion that is not readily evident, to say the least.
And to return to the discussion that started off this thread, my guess is that
this is what is meant by saying that the Declaration is being banned from
public school. No one (?) thinks that the Declaration can't be read as a
historical document, in much the same way as we read the Law of the Twelve
Tables, Hammurabi, or The Awful Disclosures of Maria Monk, or the Protocols of
the Elders of Zion, or the Klan's Kourier. The important question is, can you
say anything more substantive about the relative claims made in these documents?
Richard Dougherty
-- Original Message --
From: Francis Beckwith <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Sat, 18 Dec 2004 22:59:56 -0600
>It seems to me that Eugene is right. The God of the Declaration is
>theologically minimal, which means that it is consistent with common
>understandings of Deism and orthodox Christianity. It seems to me that one
>can be virtually any sort of theist and accept the principles of the
>Declaration. One may be a Christian and see the God of the Declaration as
>congenial to one's theology, but it does not follow that one must be a
>Christian in order to see the God of the Declaration as congenial to one's
>theology.
>
>Frank
>
>
>On 12/18/04 10:39 PM, "Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
>
>> I'm not positive, but it sounds to me like Paul is saying that the vision of
>> God expressed in the Declaration is generally Deistic. Deism, as I
>> understand
>> it, is defined as "The belief, based solely on reason, in a God who created
>> the universe and then abandoned it, assuming no control over life, exerting
>> no
>> influence on natural phenomena, and giving no supernatural revelation" (I
>> drew
>> this from dictionary.com, which is based on the American Heritage
>> Dictionary).
>>
>> But even if "endowed by their Creator" and "Laws . . . of Nature's God" are
>> as
>> consistent with Deism as with Christianity, can the same be said about
>> "appealing to the Supreme Judge of the world for the rectitude of our
>> intentions" and "a firm reliance on the protection of divine Providence"?
>> The
>> rhetoric, at least, sounds like a God who at least judges people after their
>> deaths ("Supreme Judge of the world") and perhaps even protects people in
>> this
>> life ("protection of divine Providence").
>>
>> Now it may well be that Jefferson didn't fully believe in this rhetoric
>> himself: Politicians may often use language that they think of as appealing
>> to the public even if they themselves might have put things differently in
>> private life. But it sounds like the public meaning of the Declaration
>> referred to a judging and perhaps even interventionist God, and not simply a
>> creator. Or am I mistaken?
>>
>> Eugene
>>
>>
>>
>> Paul Finkelman writes:
>>
>> Divine source, perhaps, but certainly not the God of the Bible, but rather a
>> diestic "creator" or "nature's God."
>>
>> ___
>> To post, send message to [EMAIL PROTECTED]
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>
>> 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 [EMAIL PROTECTED]
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people
>can read the Web archives; and list members can (rightly or wrongly) forward
>the messages to others.
>
___
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Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
Ed: I think this is stated very clearly, and I think you have done an excellent job of laying out your position -- others have, too, including those who disagree with you, but I want to focus on this one a bit. This discussion started some days ago about whether the CA Steve Williams suit was being described properly as outlawing the Declaration of Independence. Your position, I take it, is that that misrepresents the case. And maybe it does, or maybe it overstates the case, if it is true that the textbook for Mr. Williams's class has a copy of the Declaration in it (that has been reported). My question is a simple one, I think: regardless of the facts of this case, do you think it is unconstitutional to teach the Declaration of Independence -- that is, not as a historical document, but as if it were true, and that it is legitimate to tell students that it is true? The problem, of course, is with the multiple references to God in the document. Is it a violation of the First Amendment, say, to tell students that many (some?) of the colonists thought that God was the source of our rights, and that they were right about that? Or do we avoid First Amendment problems only by saying that many of them perhaps thought that God was the source of our rights, but then abstain from making any suggestions about whether that is in fact right? Others are certainly welcome to respond, and I welcome any responses. Richard Dougherty -- Original Message -- From: Ed Brayton <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Date: Fri, 17 Dec 2004 19:15:38 -0500 >Kurt Lash wrote: > >>Actually, the establishment clause (and the Tenth Amendment) left to >>the states the decision whether to adopt common law doctrines relating >>to religious freedom. Early on, state courts regularly applied common >>law doctrines like religious blasphemy and the "Pearson Rule" which >>decided church property disputes by deciding which group adhered most >>closely to the original faith of the church. By the mid-1800s, >>however, most state courts had begun to disentangle religious >>propositions and the state's common law. >> > >Certainly true that one can find lots of connections between the English >common law and various state laws regulating religious conduct, such as >blasphemy laws and sabbath laws. But it's equally true that such laws >are entirely antithetical to the principles found in the Constitution. >There clearly was a sea change in the way we viewed such matters that >began, I believe, not so much with the first amendment but with the >passage of Jefferson's Act for Establishing Religious Freedom in >Virginia in 1786, and with the publishing and dissemination of Madison's >Memorial and Remonstrance. While the free exercise clause was not >initially binding on the states, the tide had turned against the notion >that government had the authority to regulate and coerce religious >beliefs, and by 1833 all of the original colonies had disestablished >their state churches. So at best, one might argue that the Ten >Commandments influenced English common law, which the Constitution >rejected. One can make the argument I am opposing only by pretending >that there is a seamless cloth made up of both the English common law >and the American system of freedom of religion, when in fact the two are >quite opposed to one another. Again I state that in almost every respect >in which one can draw an analog between one of the Ten Commandments and >a law that existed either in the English common law or in the states in >America for a time, such laws are entirely unconstitutional >(particularly after incorporation when they are forbidden to state >governments as well). So far from being "based on" that influence, our >Constitutional system can better be viewed as a rejection of that influence. > >Ed Brayton >___ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >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 [EMAIL PROTECTED] 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: Steven Williams Case - more factual information
Wouldn't all of this "balancing" have to be prediated on showing that Jefferson
and (sometimes) Madison are representative of the founders' views? This is not
at all obvious, especially on the question of religion. As judges are
notoriously bad historians, I'm not sure that this is such an easy case (or,
perhaps that quality is what might make it easy for them).
Richard Dougherty
-- Original Message --
From: [EMAIL PROTECTED]
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Sat, 11 Dec 2004 14:39:15 EST
>In a message dated 12/10/2004 1:16:46 PM Pacific Standard Time,
>[EMAIL PROTECTED] writes:
>
>
>> I looked over each of these assignments and I am dumbfounded by the
>> assertion that these assignments inculcate belief. They seem well crafted
>> to guide
>> a student into studying the tenets of, and learning about, important aspects
>> of the Christian religion, and about the connection between the Christian
>> religion and the formation and progress of this Nation.
>
>I disagree that Mr. Williams' assignment sheet, if authentic, is a "well
>crafted" history lesson for reasons already explicated in detail by others,
>particularly Ed Brayton. I also agree with all those who have stated that if
>the
>assignment sheet is authentic, Mr. Williams does not have much of a case.
>
>But, the hypothetical issue Marty Lederman framed at the beginning of the
>week ("not whether the school may restrict Mr. Williams' preferred mode of
>teaching, but whether it must") is a much closer question.
>
>And, I agree with Jim Henderson that Mr. Williams' purported assignments to
>learn about Easter are similar to the assignments to learn about Islam used by
>the Byron Union School District that were upheld last year by a federal judge
>in the Northern District of California and are now on appeal to the Ninth
>Circuit. See, for example, the amicus brief to the Ninth Circuit from the
>Californian School Boards And National School Boards Associations in pdf
>format at:
>
>http://www.nsba.org/site/view.asp?TRACKID=&VID=50&CID=470&DID=34136
>
>And, finally, I also agree with Jim Henderson that there is nothing per se
>unconstitutional about being a bad history teacher, about teaching only one
>side
>of a historical controversy, or even about teaching bogus history. If Mr.
>Williams were teaching only the viewpoint that Ronald Reagan was responsible
>for
>the fall of the Soviet Union or if Mr. Williams were using bogus evidence to
>deny the Holocaust, he'd be a bad teacher, but there's no Establishment Clause
>issue.
>
>The subject about which Mr. Williams is teaching, however, is the historical
>relationship between the US government and religion ("the role of religion at
>the nation's founding" and "the reasons for the Establishment Clause in the
>First Amendment" according to paragraph 41 of his complaint), making the case
>a
>kind of "bank shot" endorsement case. Mr. Williams isn't so much directly
>endorsing religion as a state agent today (unless such facts come out), but,
>he is
>using one-sided and possibly bogus evidence to teach that the US government
>endorsed Christianity in the past. Williams' purported assignment sheet uses
>dubious sources to support the contentions that the US Constitution is "only
>for
>a moral and religious people" and the US government was "founded on Christian
>principles." I expect the "excerpted" sources listed in paragraph 40 of
>Williams' complaint will turn out to be similarly dubious and tendentious.
>
>A more balanced debate on the subject could well be a valid history lesson in
>a public school, though it may be overly ambitious for the fifth grade. The
>study of the claim that our law is based on Christian principles could include
>Jefferson's letter to Dr. Thomas Cooper in which he argues "from the
>settlement of the Saxons to the introduction of Christianity among them, that
>system of
>religion could not be a part of the common law, because they were not yet
>Christians, and if, having their laws from that period to the close of the
>common
>law, we are able to find among them no such act of adoption, we may safely
>affirm (though contradicted by all the judges and writers on earth) that
>Christianity neither is, nor ever was a part of the common law." See this
>address:
>
>http://www.stephenjaygould.org/ctrl/jefferson_cooper.html
>
>Or, a balanced approach could include many other statements Jefferson made
>about Christianity
Re: The President and the Pope
Interesting questions, which would be even more so if Bush were Catholic; I take it that in this situation he's wondering to what extent the bishops will promote the teachings of their own Church. As a (somewhat) controversial aside, the issues Paul mentions here, though important, do not rise to the level of abortion in Catholic teaching -- and I would include here capital punishment, which the Catechism presents as a prudential matter. (We can pursue this off-list if anyone is interested). Richard Dougherty >I wonder how Bush would respond if the Bishops all said that no Catholic >voter should support a man who 1) vigorously endorses the death penalty, >whcih the church opposes, and as a chief executive did not do everything >in his power to oppose the death penalty and who did not use all his >powers to pardon anyone who might be executed. I imagine we would hear >howls from the Bush people about separation of Chuch and state. > Similarly, what would happen if the Bishops attacked those executives >who do not do enough to end world poverty and hunger. It is fascinating >to see Bush pick and choose which Catholic doctrine he likes; I am >sure, however, that His Holiness can see through all of this. > >Paul Finkelman > ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The President and the Pope
Mark: I would have thought that it was the other way around on the "problematic" score, no? If Bush is looking for electoral support, wouldn't it be more advantageous to make a public statement about the matter, rather than making what looks like a rather innocuous comment to a Vatican official in private? (About which, of course, he was perfectly accurate.) Or is your suggestion that if he does so openly then at least we know what he's up to? I suppose were Bush to make public a criticism of the Catholic bishops he might risk alienating Catholic voters? (But we should all be aware that an attempt to influence Catholic voters in America by appealing to a Vatican official in private is essentially futile.) This might be a mountain being made into a molehill. Richard Dougherty -- Original Message -- From: Mark Tushnet <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Date: Mon, 14 Jun 2004 15:43:05 -0400 >I have the feeling that this thread may have played itself out, but one >matter hasn't come up -- whether there's a difference between a public >statement soliciting support from religious leaders, etc., and a private >conversation in which such support is solicited (and whether, in a world >of leaks, such a distinction is anything close to coherent). I simply >report my intuition that the public statements are lower on the >"problematic" scale than the private conversation (which is not to say >that either one is high on that scale). > >___ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religion Clauses question
This proves more clearly Prof. Beckwith's point, I think: disagree with my view of equal rights, and you are a reactionary. But the whole question is precisely one about the content of those rights. I have seen dozens of arguments on this list opposing same-sex civil unions; one might not find them "compelling" or "rational" (in the legal or moral sense), but surely they've been addressed? It is a caricature of the Catholic Church to say that it teaches that people should have more children than they can raise. Any Church document on the question can be consulted for clarification. Richard Dougherty -- Original Message -- From: Paul Finkelman <[EMAIL PROTECTED]> Reply-To: [EMAIL PROTECTED] Date: Thu, 03 Jun 2004 13:17:55 -0500 >Richard: It seems to me that if you oppose rights for people you can't >say you support equal rights. It is pretty clear to me that this is >about fundamental rights. I absolutely agree with Prof. Beckwith that >there should be no need to endorse or agree with people being gay >(although the science seems pretty clear that many if not all gay people >are born the way they are, so it is sort of like endorsing or not >endorsing people being male or female). One can believe that being gay >is immoral; just as one can dislike being around Jews or Moslems or >Blacks, or Asians. But, the issue for those of us interested in law is >one of rights and equality. I think if you deny a huge class of people >the right to marry, to raise children, to share in the civil benefits of >marriage (such as shared health insurance, right to inherit, right to >make end of life decisions for your partner, right to even visit your >loved one in the hospital) then you are in fact against equal rights for >all people. > >I personally would favor the government not marrying anyone -- that is >for the clergy; the government should set up regulations for family >units; civil unions, and the like. Then let the clergy marry people. >But, as long as the government is the "marriage business" it should not >be allowed to discriminate unless there is a strong compelling interest; >no one on this list has ever offered a compelling interest (or even a >rational basis) argument for opposing same sex unions. The only >arguments offer are that it violated God's law (which of course is >disputed and truly irrelevant to our legal sysystem) and that it sets a >bad example. Well, we can all think of lots of things that set a bad >example. I think having more children than you can raise sets a bad >example; The Catholic Church clearly does not think that is true, or at >least does not think it is true enough to support birht control. I >think sixteen year olds set a bad example when they get married, but a >number of states disagree. I think parents who yell at little league >umpires set a bad example for their kids; but there are not compelling >interests or even a rational basis for banning these sorts of behavior. > >Paul Finkelman > >Richard Dougherty wrote: >>>Clearly, however, as you note, you are not advocating disrciminating >>>against gay people, and so I welcome you to to fold of many people of >>>faith who support equal rights for all Americans! >>> >>>Paul Finkelman >> >> >> Respectfully, isn't this the kind of point that Prof. Beckwith is getting at? >> Opponents of gay "marriages" or "civil unions" are not necessarily opponents of >> "equal rights for all Americans." >> >> Richard Dougherty ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religion Clauses question
>Clearly, however, as you note, you are not advocating disrciminating >against gay people, and so I welcome you to to fold of many people of >faith who support equal rights for all Americans! > >Paul Finkelman Respectfully, isn't this the kind of point that Prof. Beckwith is getting at? Opponents of gay "marriages" or "civil unions" are not necessarily opponents of "equal rights for all Americans." Richard Dougherty ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Alan: That's very helpful. I didn't intend to suggest that Catholic Charities was being compelled to do anything in particular by the WCEA. Rather, I think CC (and many other groups) has consciously moved in the direction of identifying itself as not primarily a religious organization, providing religious assistance to religious adherents, etc., precisely in order to qualify for public funding. It falls outside the exemption, I take it, precisely because of that. Does the exemption not require that the organization see religious instruction as its end? (I don't have the law in front of me.) Would CC be exempt, then, only if it made clear that its goal in providing help with immigration, job training, etc., was primarily to provide that instruction? I'd appreciate some guidance here. BTW: the Texas proviso reads as follows: "This article does not require a health benefit plan that is issued by an entity associated with a religious organization or any physician or health care provider providing medical or health care services under the health benefit plan to offer, recommend, offer advice concerning, pay for, provide, assist in, perform, arrange, or participate in providing or performing a medical or health care service that violates the religious convictions of the organization, except if the prescription contraceptive coverage is necessary to preserve the life or health of the insured individual." Richard Dougherty "A.E. Brownstein" wrote: > The Women's Contraceptive Equity Act (WCEA) is not limited to organizations > that receive state funds. Catholic Charities could refuse all state support > and it would still have to comply with the WCEA. Further, the criteria > employed by the Act to determine which religious organizations are exempt > from the Act says nothing about government funding. > > I don't think there can be an exact equivalence between Establishment > Clause prohibitions on state support and Free Exercise protection against > government interference. An individual or organization may engage in some > activities for religious reasons, receive free exercise protection for that > choice, and still be eligible for state support. > > I think a soup kitchen affiliated with a Synagogue can receive funds from > the state to feed the hungry and also have the free exercise right not to > operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? > > I do agree that a religious organization that receives direct subsidies > from the state must accept conditions accompanying those subsidies -- even > if the condition violates the institutions religious commitments. But > that's not what the WCEA does. > > Alan Brownstein > UC Davis > > At 02:37 PM 3/2/2004 -0600, you wrote: > >Brian raises an important question: > >I think Catholic Charities, like many religious institutions, will have to > >make a choice at this point, one that they have > >been pushed to by the law for the past three decades; do they want to > >continue receiving public monies, in which case they may > >have to describe themselves as secular organizations, or do they want to > >proclaim their religious character, get the > >exemption, and then lose the funding. (Alternatively, I suppose they > >could just drop drug coverage for their employees, but > >they claim that would be unjust.) My hope is that they will do the > >latter, with the unintended (?) consequence of the law > >being that a lot of disadvantaged people will lose support. (Unless > >funding is supplied by private donations...) > > > >Richard Dougherty > >University of Dallas > > > >Brian Landsberg wrote: > > > > > The question posed was whether Catholic Charities were "religion." If > > > so, they would have qualified for an exemption from the rule. > > > > > > If they are a religion, as they insist, should that affect their > > > eligibility to participate in state and federal programs? > > > > > > >>> [EMAIL PROTECTED] 03/02/2004 6:20:00 AM >>> > > > Several postings have suggested that any accommodation that imposes a > > > burden > > > on third parties is unconstitutional. Why should this be so? A failure > > > to > > > accommodate burdens the rights of religious individuals or > > > institutions. Why > > > should there be an inflexible rule that where there are unavoidably > > > burdens > > > on one party or the other, the burdens must inevitably be borne by the > > > religious side to the dispute? In this regard it should be noted that > > > in the > > > California case, the burden on Cat
Re: Locke v. Davey and expanded free exercise rights
Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: > The question posed was whether Catholic Charities were "religion." If > so, they would have qualified for an exemption from the rule. > > If they are a religion, as they insist, should that affect their > eligibility to participate in state and federal programs? > > >>> [EMAIL PROTECTED] 03/02/2004 6:20:00 AM >>> > Several postings have suggested that any accommodation that imposes a > burden > on third parties is unconstitutional. Why should this be so? A failure > to > accommodate burdens the rights of religious individuals or > institutions. Why > should there be an inflexible rule that where there are unavoidably > burdens > on one party or the other, the burdens must inevitably be borne by the > religious side to the dispute? In this regard it should be noted that > in the > California case, the burden on Catholic Charities was one of principle, > the > burden on employees was merely financial (They had to pay for their > own > contraceptives; Catholic Charities was not firing persons who used > contraceptives). What is it (except ,perhaps ,deference to the > democratic > process) that makes all seem to assume that even in this context, the > burden on religion must yield to the secular burden? > Marc Stern > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] Behalf Of > [EMAIL PROTECTED] > Sent: Tuesday, March 02, 2004 8:49 AM > To: [EMAIL PROTECTED] > Subject: Re: Locke v. Davey and expanded free exercise rights > > I think Alan has made an interesting point here. The footnote states > that > "at least in some respects, [Washington's] constitution provides > greater > protection of relgious liberties than the Free Exercise Clause." > First, I > don't think it is unconstitutional for state constitutions, anymore > than the > First Amendment, to require strict scrutiny in certain circumstances, > so > long as there is an establishment principle at work as well. The goal > is a > balance of power between church and state, and that can be achieved > via > different calculations. There is no state that provides strict > scrutiny in > every circumstance under its state constitution, just as there was > never a > rule at the Supreme Court that strict scrutiny applied in every > circumstance. It is beyond cavil that such a regime is intolerable. > This > footnote would have worried me had it spoken approvingly of a regime > in > which every law affecting religious entities is subject to strict > scrutiny. > > Second, the footnote is speaking to judicially crafted interpretations > of > the free exercise clause. It does not speak to the proper conditions > for > legislative accommodation. Proper legislative accommodation requires > a > weighing of the special privilege to avoid the law against the harm to > the > public interest. The sort of blind accommodation at the base of RFRA > and > RLUIPA made it impossible for members of Congress to engage in this > calculus. The failure to consider the public interest and to only > focus on > the benefit to religion shows that the law has an improper purpose. > > Marci > > Sorry for not being clearer, Marci. I'm not focusing on the holding in > Locke but only on the note about expansive free exercise rights under > the > Washington constitution. I thought from some earlier posts quite a > while > back that you believed that religious exemptions that were not limited > to > specific problems violated the Establishment Clause -- and that this > was > one of your concerns with RFRA and RLUIPA. These laws created across > the > board exemptions, not a situation specific exemption. They applied to > too > many different activities and circumstances. (I may have gotten your > position on this wrong. Obviously, if I did the rest of my question > will > not make a
Re: Axson-Flynn
Sandy: Why your hesitancy in speaking of the Messiah? How would you distinguish that from requiring Inherit the Wind? Richard Dougherty Levinson wrote: > I'm much relieved--and not really surprised--by Marty's reassurance as to what the > opinion reads. (Quite typically, he's actually read it!) Recall, though, that I > wasn't asking so much whether courts would in fact recognize a claim in the > hypotheticals that I presented as whether anyone on this list would wish to > recognize a claim. I'm trying to determine whether there is indeed some element of > a consensus in this wonderfully diverse group of people on the list. It's no small > matter if, for example, committed secularists recognize the legitimacy of a > university chorus choosing to sing the Messiah (and requiring a Jewish student to > sing with gusto about Jesus as the Messiah) or if Rick Duncan would agree that I can > decide to put on Glengarry Glen Ross or, say, Inherit the Wind, and require a > Christian student to read the lines as written). (As I write these lines, I realize > that I'm ambivalent about the (state) university choosing the Messiah) > > sandy > > sandy > > -Original Message- > From: "Marty Lederman" <[EMAIL PROTECTED]> > To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> > Date: Wed, 4 Feb 2004 17:21:01 -0500 > Subject: Re: Axson-Flynn > > Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim > -- to the contrary. The court's opinion explains in great detail why a school has > the authority to require students to fullfill curricular requirements, and why that > does not make out a "compelled speech" or free exercise violation. The only reason > the court of appeals reversed the summary judgment on the free speech claim was > because there was a smidgen of evidence in the record that defendants' reason for > requiring strict "script adherence" was hostility to plaintiff's Mormonism, rather > than a genuine, consistently applied pedagogical rule. Similarly, the court allows > the free exercise claim to go forward for trial because there is some evidence that > defendants selectively singled out the plaintiff for more stringent treatment, and > that the defendants had a policy of "individualized exemptions" that they applied to > permit other students to "opt out" of certain curricular assignments, but which > they refused to apply to permit the plaintiff to "opt out." > > - Original Message - > From: "Levinson" <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Sent: Wednesday, February 04, 2004 4:49 PM > Subject: Re: Re: Axson-Flynn > > I haven't read the opinion. But let me ask this: Let's assume that the play chosen > for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, > which, to put it mildly, includes tons of profanity. A student presents herself at > an audition, saying, "you realize, of course, that I cannot use those words, so I > expect you to rewrite my part if I am chosen." Is there anyone on this list who > believes that this "states a claim," so to speak, or can the audition be conditioned > on the willingness to read the lines as written by the playwright? Does anyone on > this list believe that the director has a duty to select a play that everyone in the > class would be comfortable with? (Recall Butler v. Michigan, where the Court struck > down a requirement that all literature sold in bookstores had to be acceptable for > an audience that included children. Surely that was correct.) So is this case > (which, recall, I haven't yet read) simply fact-specific or does it state a > generalizable principle that would affect my hypothetical. (Or, with regard to the > Jewish student), does she have a right that the play not be performed on Yom Kippur? > Surely not. So, in the alternative, does the director have the duty to train an > understudy who can perform on Yom Kippur rather than impose a duty on anyone > selected to perform in the play to show up at all performances unless sick?) > > sandy > > -Original Message- > From: David Cruz <[EMAIL PROTECTED]> > To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> > Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time) > Subject: Re: Axson-Flynn > > On Wed, 4 Feb 2004, Rick Duncan wrote: > > > The 10th Circuit finally came down in Axson-Flynn (the > > case involving the LDS drama student who refused to > > say the "F" word or to curse in Go
Re: Civil unions and marriage
That there was a preference for celibacy does not mean that there was no marriage, or that marriage was disparaged, or not religious. It is a sacrament in the Catholic Church; Christ did perform His first miracle at a marriage, after all. The preference for celibacy simply follows the scriptural teaching. I'm not sure what you mean by parents being caretakers of their children; I would be surprised (to put it mildly) to find any of the Church Fathers describing the relationship between parents and children as one of property ownership. Richard Dougherty Robert O'Brien wrote: It might be worth remembering that for four hundred years after Jesus there were no Christian marriages. Christians consistently preferred celibacy and accepted marriage only for those who were unable to rise to celibacy. All marriages were civil. Marriage became a religious ceremony for Christians first under Emperor Justinian, who successfully sought to use religion to strengthen his rule. The Christian preference for celibacy over marriage continued for fifteen hundred years. It would be more accurate to claim that a civil institution was given religious significance by Justinian. For instance in Banquet of the Ten Virgins, Methodius argues that the highest moral state was to remain a virgin from birth. The second highest state was to remain a virgin after the second birth, i.e. after becoming Christian. A poor third went to the person who married only once and whose spouse died soon after the wedding. When Augustine became a Christian, he deserted the woman he had lived with for many years and who was the mother of his child. He and his Christian mother thought that was the Christian thing to do. Although the disparagement of marriage endured without dissent until Luther, who vigorously attacked celibacy, by the time of Milton there was a minority position approving plural marriages for Christians. I do not know when Christians first began to argue that parents had a particular superiority as the caretakers of their children (as distinct from considering children the property of the parents), but I would be surprised if it is found before the Puritans in the seventeenth century. Bob O'Brien ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey
Marty: Ed hasn't responded to your post, so I'll try to divine his response, or make a different one. Would it make sense to suggest that there is a secular interest in an educated clergy, and that, given the accreditation issue you raise, if you want to accomplish your goal then you do it in institutions that are not "pervasively religious." Davey's school, I take it, is not, or else no students would be able to receive the scholarship. So, if you wanted to ensure an educated clergy, you would want them to study at an institution which, in all other areas, meets the standard accreditation requirements, and then presume that it will produce a clergy more like what the state wishes for. As you point out, that is obviously not what the state intended in this case, or else they would have subsidized such study, so the argument isn't applicable here. But it might provide an opening for a secular purpose, though it may also raise other problems. Richard Dougherty -- Original Message -- From: "Marty Lederman" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Date: Sat, 6 Dec 2003 12:51:43 -0500 >I agree with Doug on both these points. (Perhaps I'm misunderstanding Ed >Darrell's point, because if the state were asserting an interest in >preventing uneducated clergy, you'd think they would not have excluded >theology majors from the scholarship program.) > >But this then raises an underlying issue that Doug and I have discussed >briefly off-list, namely, the obscure but potentially important role of >accreditation in this case. One of the principal reasons the >Rosenberger/public-forum analogy is weak in Locke is because it is simply >not the case that the scholarship here can be used to study virtually >anything. The process of accreditation effectively eliminates a whole lot >of "viewpoints" that would be "subsidized" in a true public forum (e.g., >access to a speaker's corner in a park; second-class mailing privileges; >articles in a UVa student newspaper). Anyone wishing to study alchemy, or >flat-earh theory, or creationism, or astology, or etc., etc., would not be >able to use Promise Scholarships to do so, because a school offering such >lessons would never be accredited. More to the point, I presume that a >Saudi-like Madrassa, or a Nation of Islam, or Unification Church, or Wiccan, >school, would not be accedited; and thus I further presume -- perhaps >incorrectly -- that the school at issue in Locke v. Davey would not be >accredited if almost all of its curriculum were religious in nature. How >could the state possibly, and constitutionally, decide which (for lack of a >better term) pervasively religious institutions to accredit? Accordingly, >if *all* the school did was to train students to be clergy in a particular >religious tradition, such training and qualifications would (as Doug >correctly notes) be of no concern to the state, the school would therefore >not be accredited (??), and thus the school would be ineligible for students >wishing to use Promise Scholarships. In this sense, perhaps it can be said >that the religious curriculum that is at issue in Locke had nothing to do >with the reasons the school was accredited in the first place -- i.e., that >religious program is incidental to the reaons why the school satisfies the >state's neutral, secular criteria for eligibility. If so, is that reason >enough for Washington to say that the scholarship cannot be used for such >classes? > >Sorry if this post is a bit rushed and cryptic -- I have to run right now, >and this subject certainly deserves more careful and thorough consideration >than I've given it here. > > >- Original Message - >From: "dlaycock" <[EMAIL PROTECTED]> >To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> >Sent: Saturday, December 06, 2003 12:19 PM >Subject: Re: Locke v. Davey > > >> There cannot be such an interest. The qualifications of the clergy >> cannot be of any constitutionally permissible interest to the state. If >> an uneducated, self-proclaimed minister can draw a religious following, >> he and his followers have a constitutional right to that course. >> >> If there were such an interest, I don't see how the law in Locke v. >> Davey would serve it. If anything, it would seem to cut slightly >> against it, by making it harder for potential ministers from getting a >> college education. >> >> [EMAIL PROTECTED] wrote: >> >> >Doesn't anyone argue that there is a valid secular purpose in preventing >>
RE: Talking across different world-views [Was: Civil unionsand marriage]
Mark: I did understand you to be suggesting a variety of causes for the phenomenon Greg Sisk is speaking of. But when you say that "in the case of gay marriage... lack of familiarity with the arguments against is not a major cause," I may be willing to accept that to be the case with some. But what I read in post after post after post following the MA decision was that people could think of no reason why anyone would be opposed to gay marriage, and indeed that they had never heard an argument against it. It was precisely that general opinion that, I think, led Greg to begin to lay out a series of arguments favoring the traditional marital arrangement. It is one thing to say one isn't convinced by such arguments, another to never have confronted them. I suppose someone might respond by saying that he had never heard a "rational" argument opposing gay marriage, but that then gets us back to Greg's question about treating other world-views as simply alien. Richard Dougherty -- Original Message -- From: "Mark Graber" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Date: Sat, 06 Dec 2003 21:57:57 -0500 >The claim that certain opinions correlate with education does not entail in the least >that people who hold a different opinion are stupid, any more than the claim that >persons of color tend to be Democrats entails that anyone not a Democrat is white. >When the tendency exists, it strikes me as worth thinking about. As my posts have >argued, the tendency of professors to be social liberals is multicasual. I suspect, >however, in the case of gay marriage, that lack of familiarity with the arguments >against is not a major cause. > >(and I also recognize on all sides that these are complex issues not fairly >summarized in fairly short posts) > >Mark A. Graber >___ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
