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

[Richard Foltin]

Would another way to put it be that, while the government may never question 
the theological claim that the religious petitioner considers himself/herself 
to be burdened, at some point the connection becomes so attenuated that the 
courts will not, as a legal matter, regard the burden involved as substantial?


Sent from my Verizon Wireless 4G LTE DROID


"Laycock, H Douglas (hdl5c)"  wrote:

Cases such as those Chip describes probe far too deeply into what the religious 
claimant believes. And they are not the only ones. Congress tried to address 
such cases in the RLUIPA amendments to RFRA, specifying that a religious 
practice need not be compulsory or central to be protected. The brief that the 
Baptist Joint Committee and I filed emphasizes the error of these cases, the 
danger of overly intrusive inquiries, and the need for substantial deference to 
religious understandings of what is burdensome.

But we say that such deference cannot be absolute, that it never has been 
absolute, and that if it were absolute, absurd results would follow. But 
absolute deference is what both sets of petitioners ask for. They say the 
courts can examine sincerity, and they can examine the magnitude of the penalty 
for non-compliance, but then the substantial burden inquiry is over. Courts 
cannot examine the substantiality of the burden on religion, apart from the 
penalties.

And as Marty suggested in a separate post, our brief explicitly proposes a 
bright-line test: “Religious objectors are not entitled to exemptions for 
secular entities they deal with at arm’s length, or to control the government’s 
regulation of such entities.”

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 Ira Lupu
Sent: Tuesday, March 22, 2016 12:40 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- 
Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones 
(Colorado); Wares v. Simmons (Kansas), 
https://casetext.com/case/wares-v-simmons-2.  Ware involved rabbinical 
testimony that certain books, desired by a prisoner, were non-essential to the 
Jewish faith.
Pre-1997 RFRA cases from prisons were thick with decisions involving the 
question of religious burdensomeness (prison officials do not want to have to 
meet the compelling interest test, even a prison-adjusted one, every time a 
prisoner asserts the religious significance of a forbidden practice.) I cite a 
number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998).
RLUIPA land use cases involve questions of the religious impact of not being 
able to expand a church, add a wing for a church school, or build a parking lot.
And do you deny that Yoder invites inquiry into the religious significance or 
religious impact of a challenged policy?  That is the only "burden" inquiry in 
Yoder.
Please keep in mind that I find all of this deeply troublesome.  But RFRA 
invites it. (Thomas v. Review Board says courts cannot second guess a 
claimant's reading of Scripture. But that does not mean courts cannot question 
the religious significance of the actions forbidden or required.)

On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. 
mailto:eknif...@lrrc.com>> wrote:
Ira, I don't understand the distinction I think you are trying to make. We 
agree that sounds like a court must accept the sincere testimony of a Muslim 
prisoner who claims his faith requires him to keep a half inch beard. But you 
believe the court may instead decide that being forced to shave is, contrary to 
the prisoner's testimony, actually not that big of a deal? What cases have been 
decided on this basis?

Eric


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RE: "Administration to ‘Augment’ ACA Contraceptive Rules"

[Richard Foltin]

Chip,
I was able to access the document.  The proposed rule is  open for comments, 
which must be submitted by October 21.
Richard

Richard T. Foltin, Esq.
Director of National and Legislative Affairs
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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 22, 2014 3:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: "Administration to ‘Augment’ ACA Contraceptive Rules"

Thanks, Tom.  I cannot get either link to work.  Have others been able to 
access these documents?

May I ask if the expansion of the accommodation to for-profits is a proposal 
put out for notice and comment over a prescribed number of days?

Chip

On Fri, Aug 22, 2014 at 3:46 PM, Berg, Thomas C. 
mailto:tcb...@stthomas.edu>> wrote:
The two proposals from HHS are out now:

http://www.ofr.gov/OFRUpload/OFRData/2014-20252_PI.pdf (interim final rules 
allowing non-profits to notify HHS to claim the accommodation)
http://www.ofr.gov/OFRUpload/OFRData/2014-20254_PI.pdf (proposal to expand the 
accommodation to closely held for-profits)

-
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 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Friday, August 15, 2014 11:05 AM
To: Law & Religion issues for Law Academics
Subject: Re: "Administration to ‘Augment’ ACA Contraceptive Rules"
I blogged about it here:

http://balkin.blogspot.com/2014/07/confirmation-that-supreme-courts.html

DOJ has now told the 10th Circuit that the new reg will be issued no later than 
a week from today (Aug. 22).

On Fri, Aug 15, 2014 at 11:54 AM, Conkle, Daniel O. 
mailto:con...@indiana.edu>> wrote:
This is old news, but I hadn’t seen it and so pass it along in case others 
missed it as well.

Administration to ‘Augment’ ACA Contraceptive Rules

July 24 — The Obama administration intends to issue interim final rules within 
a month regarding the “accommodations” granted to religious nonprofit 
organizations that object to providing contraceptive coverage under the 
Affordable Care Act, according to a government 
brief
 filed July 22 (Little Sisters of the Poor v. Burwell, 10th Cir., No. 13-1540, 
brief filed 7/22/14).

. . . . .

“The Wheaton College injunction does not reflect a final Supreme Court 
determination that RFRA requires the government to apply the accommodations in 
this manner,” the July 22 DOJ brief said. “Nevertheless, the Departments 
responsible for implementing the accommodations have informed us that they have 
determined to augment the regulatory accommodation process in light of the 
Wheaton College injunction and that they plan to issue interim final rules 
within a month. . . .”
“The administration believes the accommodation is legally sound, but in light 
of the Supreme Court order regarding Wheaton College, the departments intend to 
augment their regulation

RE: Hobby Lobby transcript

[Richard Foltin]

Given comments from Justices Breyer and Kagan, it does not look like there are 
five votes for the proposition that no for-profit corporation, no matter how 
closely held, may assert a free exercise interest.


Richard T. Foltin, Esq.
Director of National and Legislative Affairs
Office of Government and International Affairs
Washington, DC
P: (202) 785-5463, F: (202) 659-9896
folt...@ajc.org
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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 25, 2014 4:19 PM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby transcript

is here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
Audio should be available later in the week.
I'd be curious to hear what others who attended thought of the argument.
I'll mention only three things of particular note:

First, several of the Justices, including Justice Kennedy, appeared to be at 
least somewhat sympathetic to the argument I've been stressing that the 
employers' religion might not be substantially burdened because they have the 
option of not offering a plan (which might well save them money).
Second, there appeared by the end of the argument to be a very real possibility 
of a judgment that the government must advance its interests through the less 
restrictive means of offering its secondary accommodation (payment required of 
the issuer or the TPA) to for-profit corporations, as well.  This idea seemed 
to have traction with Justices of varying perspectives, and neither advocate 
resisted it much -- indeed, Paul Clement appeared to go out of his way in 
rebuttal to encourage it, and to stress that he had hinted at it on page 58 of 
the Hobby Lobby brief.
Third, Justices Alito and Scalia tried to argue that RFRA goes much further 
than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there 
are five votes for that.
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Canceled: RE: The clergy-penitent privilege and burdens on third parties

[Richard Foltin]

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Re: The clergy-penitent privilege and burdens on third parties

[Richard Foltin]

Apologies to all for the invitation that my (not-so-)Smartphone somehow just 
sent to the listserve for a non-existent event.

Sent from my Verizon Wireless 4G LTE DROID


"Levinson, Sanford V"  wrote:

I am certainly drawn to  be protective of religious acts “essential to their 
faith.”  The problem, of course, comes with the radical pluralism of American 
religious life, and our (perhaps admirable) propensity to allow each individual 
more-or-less carte blanche (unless it involves smoking marijuana) as to what 
those “essentials are.”  And, of course, one still has to explain why claims of 
conscience that are “essential to one’s own notion living with integrity” are 
not protected.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Saturday, December 07, 2013 10:53 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The clergy-penitent privilege and burdens on third parties

I think the history of the privilege is that it was first protected for 
Catholics, because of its sacramental nature and the very strong teaching, and 
then extended to other faiths by analogy and to avoid what looked to some like 
denominational discrimination. I’m pretty sure about that chronology; I’m 
inferring the causation without having done the historical work to verify it.

The peyote service is the central act of worship in the Native American Church; 
I don’t know if they use the word sacrament. But Smith and Black (the other 
plaintiff) were not members of the church; they were exploring.

It is generally illusory to enact toleration, and say that religious minorities 
can live among you, if you then prosecute them for acts essential to their 
faith. The force of that point is weaker with respect to less important 
religious practices, although I think it never goes to zero.
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 Levinson, Sanford V
Sent: Friday, December 06, 2013 11:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

As I’ve said earlier, I’m sympathetic to Richard’s argument  inasmuch as 
confession is in fact part of a complex (required) sacramental process.  But 
the point is that (I think) that’s relatively unusual, certainly not present, 
so far as I am aware, in Judaism, for example.  Am I correct in believing that 
the ingestion of peyote was in fact a sacramental aspect of the Native American 
church?

sandy

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RE: The clergy-penitent privilege and burdens on third parties

[Richard Foltin]

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DESCRIPTION:When: 7:30pm – 8:30pm\, December 7\n--
	-\nI am certainly drawn to be protective of religious acts 
	“essential to their faith.” The problem\, of course\, comes with th
	e radical pluralism of American religious life\, and our (perhaps admir
	able) propensity to allow each individual more-or-less cart
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Re: Book

[Richard Foltin]

Sent from my iPad

On Jun 15, 2013, at 8:41 PM, "Marc DeGirolami" 
mailto:marc.degirol...@stjohns.edu>> wrote:

I hope you will indulge a brief note about the recent publication of my book, 
The Tragedy of Religious 
Freedom.

Please let me know if you have an interest in reviewing (or, for that matter, 
just in reading) it, and I will do my best to get it to you.

Best wishes,

Marc

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RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes

[Richard Foltin]

The religious status quo could also be a non-observant or explicitly atheistic 
or agnostic household, which would also have to be respected under the rule 
that Eugene supports. The alternative is for the courts to determine which 
religions are "extremist," a questionable role for the judiciary. 

Richard T. Foltin
Director of National and Legislative Affairs 
Office of Government and International Affairs
p: 202-785-5463,  f: 202-659-9896
folt...@ajc.org
  
   
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-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, April 20, 2012 9:24 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing 
as a factor in custody disputes

I don't think it is a difficult question but disagree that the rule is sound.   
The standard should be the best interest of the child.  Stability in an 
extremist religion is often not in the child's best interest, especially if the 
child is a girl.   
For example, the FLDS.  The best interest of the child can also trump 
mainstream religions depending on the facts of the case.  The focus must be the 
child.

This sort of assumption that religious status quo is a social good is an 
unconstitutional preference for religion.
This is a good example of when the application of a neutral generally 
applicable principle can serve the greater good more directly than a religious 
preference.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
New York, NY 10003

On Apr 20, 2012, at 9:09 AM, "Volokh, Eugene"  wrote:

> There's an interesting op-ed at 
> http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html 
> that faults the child custody law preference for stability of religious 
> upbringing:  When women leave arranged marriages in the ultra-Orthodox Jewish 
> community -- and leave ultra-Orthodoxy more general -- they may sometimes 
> lose custody of their children on the grounds that the person who remains 
> within the community is more able to provide stability of religious 
> upbringing.  
> 
> I'm inclined to say that this rule (which of course could equally apply to 
> fathers who leave a religious community as well, though I don't know how 
> relatively frequent such departures are) is a sound one, for children who are 
> old enough to have some experience with the religion and thus some stake in 
> stability of religious upbringing.  To be sure, the rule does create some 
> pressure against departing the faith, since often someone who leaves the 
> group can no longer raise the children in the same religious environment even 
> if she's willing to, because the group might no longer accept her; but this 
> seems in this situation to be an acceptable and denominationally neutral rule 
> (especially if it is equally applied to a parent who moves into a 
> ultra-religious community which disrupts the stability of the children's 
> nonreligious, or only mildly religious, upbringing).  But I still thought I'd 
> mention the op-ed, in case people think it's a difficult and interesting 
> question.  
> 
> Eugene
> 
> ___
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Anyon

Re: Interesting late 1800s Arkansas law related to government and religion

[Richard Foltin]

Application of freedom of association aside, for a church, there's now 
Hosanna-Tabor. The religious autonomy interest that precludes the state from 
ever telling a church whom its minister shall be could well extent to their 
right to decide who their members are.

Richard


From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Tuesday, January 24, 2012 09:38 PM
To: Law & Religion issues for Law Academics 
Cc: religionlaw@lists.ucla.edu 
Subject: Re: Interesting late 1800s Arkansas law related to government and 
religion

While i understand the point, i wonder about it.  Dale does not stand for the 
proposition that an organization can coerce or threaten an individual to change 
their vote in an election.Voter intimidation was an extremely serious 
problem during the Reconstruction era.   Don't we have competing constitutional 
rights here?   If the prevailing interpretation on this thread is correct, 
religious groups could be the primary vehicle for voter intimidation because of 
their protected statusI would have thought voter intimidation could be off 
limits even to churches.It is an impermissible act.

Marci

On Jan 24, 2012, at 9:18 PM, Marc Stern mailto:ste...@ajc.org>> 
wrote:

Presumably a political party could do the same and probably lots of other 
ideological organizations could too given the Boy scout decision resting on 
freedom of ideological non- association.
Marc

From: Finkelman, Paul 
mailto:paul.finkel...@albanylaw.edu>> 
[mailto:paul.finkel...@albanylaw.edu]
Sent: Tuesday, January 24, 2012 09:09 PM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Interesting late 1800s Arkansas law related to government and 
religion

Marci:

Presumably there is a free exercise right to expel people from your church for 
having the wrong political ideas.  So, I suppose if the church leaders say "you 
must support candidate x" and a member does not, and openly supports "y" then 
it is a free exercise right for the Church to expel the member.



*
Paul Finkelman, Ph.D.
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
*


From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marci Hamilton [hamilto...@aol.com]
Sent: Tuesday, January 24, 2012 8:51 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Interesting late 1800s Arkansas law related to government and 
religion

Ok, I'll bite.   Why is an anti-coercion statute obviously unconstitutional?

Marci


On Jan 24, 2012, at 4:45 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

An Arkansas 1891 statute:  “No person shall coerce, intimidate or unduly 
influence, any elector to vote for or against the nominee of any political 
party, or for or against any particular question or candidate, by any threat or 
warning of personal violence or injury, or by any threat or warning of 
ejectment from rented or leased premises, or by the foreclosure of any mortgage 
or deed of trust, or of any action at law or equity, or of discharge from 
employment, or of expulsion from membership in any church, lodge, secret order 
or benevolent society, or by any oath, or affirmation or secret written 
pledge.”  I assume such a statute, as applied to churches, would be 
unconstitutional today, and might even have generally been seen as 
unconstitutional back then, though I have seen no cases interpreting it.

Interestingly, a North Carolina statute that didn’t mention churches -- “Any 
person who shall discharge from employment, withdraw patronage from, or 
otherwise injure, threaten, oppress or attempt to intimidate any qualified 
voter of the state, because of the vote such voter may or may not have cast in 
any election, shall be guilty of a misdemeanor” -- was held in 1901 to not be 
able applicable to expulsion from churches based on a person’s vote.  See State 
v. Rogers, 38 S.E. 34 (N.C. 1901), 
http://volokh.com/2012/01/23/interesting-old-prosecution-for-expelling-someone-from-a-church-based-on-how-he-voted/
 .

Eugene

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RE: Zionist-Occupied Government

[Richard Foltin]

I 
concur.
 
The reference to "ZOG" evokes a view of Jewish conspiracy and influence 
that is simply a more current version of the "history" recited in the 
fraudulent Protocols of the Elders of Zion -- and has no more place in civil 
discourse.
 
Richard   


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Perry 
DaneSent: Tuesday, December 13, 2005 4:05 PMTo: 
religionlaw@lists.ucla.eduSubject: Zionist-Occupied 
Government
The 
problem, though, is that the term "Zionist-occupied government" does not just 
evoke a factual claim, true or untrue.  Nor is it just an 
"accusation."  Rather, it is a specific anti-Semitic code phrase, which 
originated with certain specific, radical, anti-Semitic groups, and has, for 
them and others, a specific anti-Semitic meaning.   I can easily see 
an argument for allowing all forms of language into a forum like this, including 
"kike."  But, if lines are going to be drawn, then ZOG seems to me to be on 
the same side of the line as 
"kike."There 
is, of course, a larger conversation brewing here about the relationship between 
literal meaning and contextual understanding.    But I'll let 
others pick up that baton if they 
like. 
 
 
PerryP.S.After 
I pushed the "send" button, my Eudora e-mail program just warned me that the 
term "Zionist-occupied government" might be considred offensive, and that I 
should reconsider using it in my e-mail.  
Aha.Mark Graber wrote:
The issue is strictly what
may
be said, not the truth value of assertions and, for better or worse,
while I think "kike" clearly crosses the line, my line is not
crossed by
calling the U.S. Government "Zionist dominated," however
mistaken I
think that may be, and however ghastly the history of that accusation
has
been.
***Perry 
Dane   
    
 
Professor of 
LawRutgers University School of Law  -- 
Camden 
217 North 
Fifth StreetCamden, NJ 08102   
  
 
[EMAIL PROTECTED]www.camlaw.rutgers.edu/bio/925/Work:   
(856) 225-6004Fax:   (856) 
969-7924Home:   (610) 
896-5702***
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New Orleans legal system

[Richard Foltin]

Tangentially apropos of the interesting but assuredly academic discussion of
Governor Blanco's call for prayer, here is an e-mail I received this
afternoon detailing the very real -- and mind-boggling -- implications of
the catastrophe for area lawyers, judges and the legal system.

Richard Foltin
The American Jewish Committee 



This is an email from a law professor at Southern University Law Center in
Baton Rouge
(she sent it to an ethics lawyers' listserv and it's made the rounds from
there...)


5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their
offices, their libraries, their computers with all information thereon,
their client files - possibly their clients, as one attorney who
e-mailed me noted. As I mentioned before, they are scattered from
Florida to Arizona and have nothing to return to. Their children's
schools are gone and, optimistically, the school systems in 8
parishes/counties won't be re-opened until after December. They must
re-locate their lives.

Our state supreme court is under some water - with all appellate files
and evidence folders/boxes along with it. The 5th Circuit Court of
Appeals building is under some water - with the same effect. Right now
there may only be 3-4 feet of standing water but, if you think about it,
most files are kept in the basements or lower floors of courthouses.
What effect will that have on the lives of citizens and lawyers
throughout this state and this area of the country? And on the law?

The city and district courts in as many as 8 parishes/counties are under
water, as well as 3 of our circuit courts - with evidence/files at each
of them ruined. The law enforcement offices in those areas are under
water - again, with evidence ruined. 6,000 prisoners in 2 prisons and
one juvenile facility are having to be securely relocated. We already
have over-crowding at most Louisiana prisons and juvenile facilities.
What effect will this have? And what happens when the evidence in their
cases has been destroyed? Will the guilty be released upon the
communities? Will the innocent not be able to prove their innocence?

Our state bar offices are under water. Our state disciplinary offices
are under water - again with evidence ruined. Of particular interest to
you...our state disciplinary offices are located on Veteran's Blvd. in
Metairie. Those of you who have been watching the news, they continue to
show Veteran's Blvd. It's the shot with the destroyed Target store and
shopping center under water and that looks like a long canal. Our
Committee on Bar Admissions is located there and would have been housing
the bar exams which have been turned in from the recent July bar exam
(this is one time I'll pray the examiners were late in turning them in
-
we were set to meet in 2 weeks to go over the results). Will all of
those new graduates have to retake the bar exam?

Two of the 4 law schools in Louisiana are located in New Orleans (Loyola
and Tulane - the 2 private ones that students have already paid about
$8,000+ for this semester to attend). Another 1,000+ lawyers-to-be whose
lives have been detoured. I've contacted professors at both schools but
they can't reach anyone at those schools and don't know the amount of
damage they've taken. Certainly, at least, this semester is over. I'm
trying to reach the Chancellor's at Southern and LSU here in Baton Rouge
to see if there's anything we can do to take in the students and/or the
professors. I think I mentioned before, students from out of state have
beens stranded at at least 2 of the other universities in New Orleans -
they're moving up floor after floor as the water rises. Our local news
station received a call from some medical students at Tulane Medical
Center who were now on the 5th floor of the dormitories as the water had
risen. One of them had had a heart attack and they h! ad no medical
supplies and couldn't reach anyone - 911 was busy, local law enforcement
couldn't be reached, they were going through the phone book and reached
a news station 90 miles away!! It took the station almost 45 minutes to
finally find someone with FEMA to try to get in to them!!

And, then, there are the clients whose files are lost, whose cases are
stymied. Their lives, too, are derailed. Of course, the vast majority
live in the area and that's the least of their worries. But, the New
Orleans firms also have a large national and international client base.
For example, I received an e-mail from one attorney friend who I work
with on some crucial domestic violence (spousal and child) cases around
the nation - those clients could be seriously impacted by the loss, even
temporarily, of their attorney - and he can't get to them and is having
difficulty contacting the many courts around

Foltin-Standish Article for Human Rights Magazine

[Richard Foltin]

 
Dear friends,
I am pleased to enclose for your information a copy of my article on Title
VII and religious discrimination, co-authored with Seventh-day Adventist
legislative director James Standish, which has just been published in "Human
Rights" magazine.  It appears below as embedded text, and can also be viewed
at http://www.abanet.org/irr/hr/summer04/reconcile.htm . 
"Human Rights" is a publication of the American Bar Association's Section of
Individual Rights and Responsibilities.
Richard 

Richard T. Foltin
Legislative Director and Counsel
The American Jewish Committee
Office of Government and International Affairs
1156 15th St., NW, Suite 1201
Washington, DC 20005
Direct Dial (preferred): (202) 785-5463
General: (202) 785-4200 x13
Fax: (202) 659-9896
E-mail: [EMAIL PROTECTED]
Website: www.ajc.org  


 


HUMAN RIGHTS MAGAZINE, Summer 2004, Vol. 31, No. 3 


Reconciling Faith and Livelihood 

Religion in the Workplace and Title VII

By Richard T. Foltin and James D. Standish

Between 1992 and 2003, claims of employment discrimination based on religion
jumped some 82 percent. To put this remarkable rise in perspective, during
the same period, claims involving race dropped by 3.5 percent. This
troubling trend in the treatment of faith in the American workplace deserves
close examination.

Many employment discrimination claims based on religion involve instances in
which employers refuse to provide an accommodation for an employee's
religious practices. The three primary problem areas tend to arise out of
conflicts between work requirements and holy day observance (weekly Sabbaths
and annual holy days like Christmas, Easter, and Passover), religious garb
requirements (turbans, scarves, and yarmulkes), and religious grooming
requirements (beards, dreadlocks, and so on). Some claims arise, but with
less frequency, out of conflicts between religious faith and a specific
assigned duty.

It is not only members of small or poorly understood faiths who experience
difficulties in the American workplace. Cases coming before the courts have
included, among others, Roman Catholics denied time off on Christmas Day and
Evangelical Christians denied time off to attend church on Sundays. Other
cases have involved employers who require Sikh employees to remove their
turbans, fire Jews and Seventh-day Adventist Christians for refusing to work
on Saturdays, reassign Muslim women wearing headscarves to keep them out of
sight of customers, and attempt to force Rastafarian employees to cut their
dreadlocks.

What is driving the upsurge of religious discrimination in the workplace?
Those working extensively in the field point to four trends: 

. The movement toward a twenty-four-hours-a-day/seven-days-a-week economy,
with consequent conflict with religious demands for rest and worship on
Saturdays, Sundays, or holidays; 

. Our nation's increasing diversity, marked by a broad spectrum of religious
traditions, some of which may clash with workplace parameters that do not
take into account the religious observances of immigrant communities; 

. Latent animosity toward some religious traditions after the September 11
attacks, a phenomenon evidenced by significant recent upswings in cases
involving Muslim Americans and Sikh Americans; and 

. A growing emphasis on material values at the expense of spiritual ones,
with employers indicating that workplace requirements take priority over
religious practices. 

U.S. civil rights laws protect people of faith in the workplace, but this
protection-particularly when applied to guard against formal discrimination
and to require a measure of accommodation of religious practice-has proven
controversial from its inception, and inadequate in its application. This
problem does not take place in a vacuum. 

The Civil Rights Act of 1964

In a 1963 message to Congress, President John F. Kennedy vowed to protect
Americans from workplace discrimination on the basis of "race, creed or
ancestry." A year later, President Lyndon Johnson signed the omnibus Civil
Rights Act (Act), in part as a legacy to his assassinated predecessor. The
milestone legislation included Title VII, which prohibited discrimination in
the workplace on the basis of race, color, religion, sex, or national
origin. 

It was clear that the prohibition on religious discrimination and the
application of nondiscrimination principles to religious entities presented
special issues. As originally drafted, the Act afforded a sweeping exemption
for religious entities. By the time Congress completed its work on Title
VII, however, that exemption was significantly narrower. Pursuant to section
702, religious entities were exempted from the provisions prohibiting hiring
based on religion. In addition, section 703(e)(2) provided an exemption that
allowed religious educational institutions to hire and employ employees of a
particular religion. Yet like all other 

RE: Axson-Flynn

[Richard Foltin]

I fear that academe's response will be to decline altogether to exempt
students for reasons of religious observance.

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Rick Duncan
Sent: Wednesday, February 04, 2004 3:12 PM
To: Law & Religion issues for Law Academics
Subject: Axson-Flynn


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 God's name as part of
class exercises at the U of Utah). The Court ruled in
her favor and reversed and remanded.

The opinion looks like a pretty good one, and I
particularly like the court's handling of the
"individualized exemptions" issue under Smith.

The court held that since the drama faculty had
exempted a Jewish student from a required
improvisational exercise on Yom Kippur but refused to
grant Ms. Axson-Flynn an exemption from saying the
forbidden words when performing required exercises,
there was at least a genuine issue of material fact as
to whether the University maintained an individualized
exemption process which would trigger strict scrutiny
under Smith-Lukumi-Sherbert. It seems right to me.

Congratulations to Prof. Mike Paulsen who was
Axson-Flynn's attorney (and to my son, Casey Duncan,
who was Mike's research assistant on this case).

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 Galahad or Mordred;
middle things are gone." C.S.Lewis

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