Re: Hobby Lobby Question
The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 8:03 PM Subject: RE: Hobby Lobby Question With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602
Re: Hobby Lobby Question
I wonder if the complicity with evil position is similar to the position many academics took a number of years ago concerning disinvestment and boycotts of companies that did business in the old South Africa? Maybe that metaphor would strike a chord? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, July 1, 2014 1:04 AM Subject: Re: Hobby Lobby Question I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
Alan, I don't like the Court's non-public forum doctrine--I would be a lot quicker than is the Court to find a designated public forum--but so long as the policy avoids viewpoint discrimination and is reasonable in light of the purpose of the forum, it can be used to exclude speakers and content from a non -public forum. See Forbes case (permissible to exclude minor political candidates from a nonpublic forum/candidate debate). Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Alan Brownstein aebrownst...@ucdavis.edu To: Rick Duncan nebraskalawp...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, December 13, 2013 4:32 PM Subject: RE: Satanists want statue beside Ten Commandments monumentat Oklahoma Legislature Wow! Allowing local groups with longstanding ties to the community preferential access to non-public forums (or denying access or providing less favorable access to outside groups or local groups without longstanding ties to the community.) What a great way to mask viewpoint discrimination and not only to promote and preserve religious hierarchy but also to entrench the current political power structure of the community at the same time. I hope the communities that adopt this policy are up-front about it in the literature describing their areas. First they should list all of the public property to which this policy of preferential access should apply -- which, of course, will be most of the public property in the town other than streets and parks: interior sidewalks, the lobby of government office buildings, bus terminals, train stations and airports, government workplace charity drives etc. Next they should list all of the religious, ethnic, and political groups they consider to be either outsiders or lacking longstanding ties to the community. If they are going to treat new residents or visitors as second class citizens they ought to at least let them know ahead of time. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Duncan [nebraskalawp...@yahoo.com] Sent: Thursday, December 12, 2013 8:53 AM To: Douglas Laycock; 'Law Religion issues for Law Academics' Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Doug is absolutely correct here. The Govt wins if this is government speech and the Ten C display does not violate the EC, either because a majority decides the endorsement test does not apply or, if it does apply, the display does not amount to an endorsement of religion (perhaps a majority may conclude that the purpose and effect do not endorse religion, but merely recognize the historical significance of the Ten Commandments in the local community). If this is some kind of forum for private speech--even if it is a non-public forum--Pl wins if this amounts to viewpoint discrimination. But if it is a non-public forum, and the restriction amounts to content or speaker but not viewpoint discrimination, the Govt will win if the content or speaker exclusion is reasonable. So a policy that allows local groups with longstanding ties to the community preferential access, if used to exclude an outside group with minimal ties to the community, may be permissible in a non-public forum. I think this is correct. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Douglas Laycock dlayc...@virginia.edu To: 'Rick Duncan' nebraskalawp...@yahoo.com; 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thursday, December 12, 2013 10:05 AM Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature That may well be with respect to passive displays; probably not with respect to live speakers. But I inadvertently misled by talking about endorsement. The question under discussion was whether allowing one group and only one group to erect a display on government property makes it government speech. The answer to that is still yes. The nativity scene put up by the preferred group becomes government speech, even
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
I have a question for Alan. Suppose a county courthouse allows a private group, say the NAACP, preferential access to put up a display celebrating the life of MLK. Must the county now allow the Satanist group access to this non-public forum to put up a display celebrating the life of Satan? Access to the local chapter of the KKK to put up a display disparaging MLK? Access to a Christian group to put up a Nativity Display? Or must the county deny the NAACP's access in order to avoid opening up the courthouse to other private groups, including groups who show up merely for the purpose of forcing the county to silence the NAACP? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Alan Brownstein aebrownst...@ucdavis.edu To: Rick Duncan nebraskalawp...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, December 13, 2013 4:32 PM Subject: RE: Satanists want statue beside Ten Commandments monumentat Oklahoma Legislature Wow! Allowing local groups with longstanding ties to the community preferential access to non-public forums (or denying access or providing less favorable access to outside groups or local groups without longstanding ties to the community.) What a great way to mask viewpoint discrimination and not only to promote and preserve religious hierarchy but also to entrench the current political power structure of the community at the same time. I hope the communities that adopt this policy are up-front about it in the literature describing their areas. First they should list all of the public property to which this policy of preferential access should apply -- which, of course, will be most of the public property in the town other than streets and parks: interior sidewalks, the lobby of government office buildings, bus terminals, train stations and airports, government workplace charity drives etc. Next they should list all of the religious, ethnic, and political groups they consider to be either outsiders or lacking longstanding ties to the community. If they are going to treat new residents or visitors as second class citizens they ought to at least let them know ahead of time. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Duncan [nebraskalawp...@yahoo.com] Sent: Thursday, December 12, 2013 8:53 AM To: Douglas Laycock; 'Law Religion issues for Law Academics' Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Doug is absolutely correct here. The Govt wins if this is government speech and the Ten C display does not violate the EC, either because a majority decides the endorsement test does not apply or, if it does apply, the display does not amount to an endorsement of religion (perhaps a majority may conclude that the purpose and effect do not endorse religion, but merely recognize the historical significance of the Ten Commandments in the local community). If this is some kind of forum for private speech--even if it is a non-public forum--Pl wins if this amounts to viewpoint discrimination. But if it is a non-public forum, and the restriction amounts to content or speaker but not viewpoint discrimination, the Govt will win if the content or speaker exclusion is reasonable. So a policy that allows local groups with longstanding ties to the community preferential access, if used to exclude an outside group with minimal ties to the community, may be permissible in a non-public forum. I think this is correct. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Douglas Laycock dlayc...@virginia.edu To: 'Rick Duncan' nebraskalawp...@yahoo.com; 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thursday, December 12, 2013 10:05 AM Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature That may well be with respect to passive displays; probably not with respect to live speakers. But I inadvertently misled by talking about endorsement. The question under discussion was whether allowing one group and only one
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
Of course. If it is Govt speech, no public forum issue. If the display touches on religion, it may or may not violate the EC. The Court has come down on both sides of the EC issue in passive display cases, and the current personnel on the Court may be on the side of permitting most passive religious displays. We all agree on that. But there may be cases where the Govt permits a group preferential access without wishing (or intending) to adopt its display as the Govt's own speech. It is just an influential local group--the local VFW, the local NAACP, the local Planned Parenthood in some communities--that requests access, and the Govt says go ahead, put up your display. In these cases, it makes a big difference whether the forum is a designated public forum or a nonpublic forum. If it is a nonpublic forum, those wishing to force access will lose unless they can demonstrate viewpoint discrimination. And it is not difficult to draft a nonpublic forum policy that would allow the Govt to exclude outside groups, such as the Satanists, from forcing their way into the forum for local groups. Indeed, every public law school in the country has a forum for student groups that excludes non-student groups. Insiders are in and outsiders are out. Indeed, in passive religious display cases, the Govt's strongest position is to argue that it is a Govt display and it is permissible under Van Orden. It is usually those trying to remove the display who argue public forum hoping to force the Govt to either remove the Ten C display or permit a Satanic display. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Alan Brownstein aebrownst...@ucdavis.edu Sent: Friday, December 13, 2013 8:36 PM Subject: RE: Satanists want statue beside Ten Commandments monumentat Oklahoma Legislature I’m not Alan, but I would think that a county can certainly allow the MLK display and label it government speech, without being required to accept other displays from Satanists, Klansmen, or anyone else. The complicating factor is that, when a county allows religious monuments, it may be inclined not to label them government speech (since so labeling them might trigger Establishment Clause objections). That’s why we’ve got a potentially live free speech issue here, I think. Eugene From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Friday, December 13, 2013 6:23 PM To: Alan Brownstein; Law Religion issues for Law Academics Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature I have a question for Alan. Suppose a county courthouse allows a private group, say the NAACP, preferential access to put up a display celebrating the life of MLK. Must the county now allow the Satanist group access to this non-public forum to put up a display celebrating the life of Satan? Access to the local chapter of the KKK to put up a display disparaging MLK? Access to a Christian group to put up a Nativity Display? Or must the county deny the NAACP's access in order to avoid opening up the courthouse to other private groups, including groups who show up merely for the purpose of forcing the county to silence the NAACP? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From:Alan Brownstein aebrownst...@ucdavis.edu To: Rick Duncan nebraskalawp...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, December 13, 2013 4:32 PM Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Wow! Allowing local groups with longstanding ties to the community preferential access to non-public forums (or denying access or providing less favorable access to outside groups or local groups without longstanding ties to the community.) What a great way to mask viewpoint discrimination and not only to promote and preserve religious hierarchy but also to entrench the current political power structure
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
Doug is absolutely correct here. The Govt wins if this is government speech and the Ten C display does not violate the EC, either because a majority decides the endorsement test does not apply or, if it does apply, the display does not amount to an endorsement of religion (perhaps a majority may conclude that the purpose and effect do not endorse religion, but merely recognize the historical significance of the Ten Commandments in the local community). If this is some kind of forum for private speech--even if it is a non-public forum--Pl wins if this amounts to viewpoint discrimination. But if it is a non-public forum, and the restriction amounts to content or speaker but not viewpoint discrimination, the Govt will win if the content or speaker exclusion is reasonable. So a policy that allows local groups with longstanding ties to the community preferential access, if used to exclude an outside group with minimal ties to the community, may be permissible in a non-public forum. I think this is correct. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Douglas Laycock dlayc...@virginia.edu To: 'Rick Duncan' nebraskalawp...@yahoo.com; 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thursday, December 12, 2013 10:05 AM Subject: RE: Satanists want statue beside Ten Commandmentsmonument at Oklahoma Legislature That may well be with respect to passive displays; probably not with respect to live speakers. But I inadvertently misled by talking about endorsement. The question under discussion was whether allowing one group and only one group to erect a display on government property makes it government speech. The answer to that is still yes. The nativity scene put up by the preferred group becomes government speech, even if the endorsement test is overruled and that speech becomes permissible. If the nativity scene were private speech, there would be obvious viewpoint discrimination and a Speech Clause violation. It becomes permissible only if it is government speech -- and then only if government is permitted to endorse the truth claims of a particular faith. These are two different issues. 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 Rick Duncan Sent: Wednesday, December 11, 2013 11:03 AM To: Law Religion issues for Law Academics Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature I think Doug is correct that preferential access probably triggers Allegheny and the endorsement test. But Justice O'Connor is long gone, and Allegheny is ripe for re-consideration. I suspect the endorsement test would not survive re-consideration, given the current lineup on the Court. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
I think Doug is correct that preferential access probably triggers Allegheny and the endorsement test. But Justice O'Connor is long gone, and Allegheny is ripe for re-consideration. I suspect the endorsement test would not survive re-consideration, given the current lineup on the Court. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Comparing religious exemptions and free speech
I am coming in very late on this. Sorry. But Eugene's most recent post about 3rd-party harms caused by religious conduct (as opposed to communicative impact) caused me to think about other constitutionally-protected conduct that may result in 3rd party harms. Moore v. City of East Cleveland comes to mind. The SDP right of families to live together trumps single-family zoning laws that are designed to protect the interests and property values of other residents in the neighborhood. This is also true of cases like Shelley v. Kramer and equal protection challenges to racially-restrictive covenants and zoning laws. Racial integration was protected in these cases regardless of how much harm 3rd parties would suffer in terms of lower property vales, etc. Of course, the Fourth Amendment often sets guilty, violent criminals free to roam the streets and seriously harm future victims of robbery, rape and murder. Ditto the Fifth Amendment. Maybe I am missing something, but it seems we often treat 3rd-party burdens as a normal cost of protecting liberty in a free society. No? Not having your contraceptives and morning-after pills paid for by your deeply religious employer strikes me as a trivial burden compared to some of those I just mentioned. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) On Thursday, December 5, 2013 12:54 AM, Alan Brownstein aebrownst...@ucdavis.edu wrote: Putting aside Eugene's first example involving religiously motivated speech because religious exercise overlaps speech and it can get very complicated figuring out how overlapping rights frameworks fit together, I agree with Eugene in some respects. I do not equate religious liberty and freedom of speech or religious liberty and other fundamental rights so that the doctrine for one right has to directly parallel the doctrine for a different right. My point was the more general one with which Eugene apparently agrees. Recognizing and protecting interests like speech and religion as rights acknowledges that society is willing to incur some costs to protect those interests. What those costs are and how they compare for different rights aren't easy questions to answer. I view religious liberty to be primarily a dignitary right, like the right to marry and the right to be or not be a parent. There is a dignitary dimension to speech as well, but speech also serves important instrumental functions. Still, I find it difficult to compare the protection provided to speech and the protection provided to essentially dignitary rights. I would not like having my right to speak restricted. But I can certainly tolerate many restrictions on my speech more easily than I can accept government interference with my marriage and family or my ability to practice my religion. Suppose a city is worried about noise and congestion on certain downtown streets during the week. Accordingly, it tells a group that wants to host an expressive event at a local arena it is renting that it will only give the group a permit for the event if the event is moved to the weekend. Suppose the city also tells the only synagogue in the city which is located in the downtown area that for the same reason -- to avoid noise and congestion during the week -- it should move Yom Kippur services to the weekend instead of the mid-week date when they are scheduled. Would it be improper to protect the right to worship in the synagogue more rigorously than the right to hold the expressive event in the arena -- even though both activities cause the same harm to the public in increased noise and congestion? While the government's goal may be the same in both cases, time, place, and manner regulations may be much more burdensome to religious exercise than speech. Even content discriminatory regulations may be far less burdensome to the speaker than restrictions on worship or religious practice to the devout individual. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, December 04, 2013 9:08 PM To: Law Religion issues for Law Academics Subject: Comparing religious exemptions and free speech I agree with Alan, Marc, and Chris at some level of generality. But it seems to me that religious exemption claims are rightly treated differently than other claims, such as free speech claims. Consider, for instance, the emotional distress tort. Larry Flynt says nasty things about Jerry Falwell and thus intentionally inflicts emotional distress on him -- constitutionally protected. Bill Believer decides to protest outside Falwell’s home at night with loudspeakers
Maine town: No parking lot taxes for charities…except for churches
FYI. ADF News Release: FOR IMMEDIATE RELEASE Maine town: No parking lot taxes for charities…except for churches ADF files lawsuit to challenge tax assessed against church but not other charitable groups Wednesday, April 25, 2012 KNOX, Maine — Alliance Defense Fund attorneys representing a Rockland church filed suit against the city Monday in Maine Superior Court in Knox. The city granted the church a property tax exemption for its building but not for its parking lot and parsonage even though the city attorney admitted that all three would be exempt if the church were strictly a charitable organization. The church makes its facilities available to a wide range of charitable and community groups and events. “Churches shouldn’t live in fear of being targeted by the government in ways other groups aren’t,” said ADF Senior Legal Counsel Joel Oster. “Churches are at a distinct disadvantage under the current law, which grants a tax exemption for the entire property of a non-church charitable group but only grants a partial exemption for churches. It’s unconstitutional to single out churches to be treated differently simply because they are churches while allowing virtually identical non-religious uses to have favorable tax treatment.” According to the complaint filed in state court, Aldersgate United Methodist Church should have had its parking lot and parsonage exemption request granted under the church tax exemption statute but nonetheless additionally qualifies as a charitable organization. “The Church qualifies as a charitable organization for all three of its properties because it provides education and religious instruction to the general public on how to live moral and healthy lives--lives that are not dependent on the government and that care for and help others in times of need,” the complaint states. “In addition, the Church makes its facilities available to a wide variety of public groups without charge, such as local orchestras, children’s development services, and branches of Alcoholics Anonymous and Narcotics Anonymous. The Church also provides financial support and volunteer assistance to local charities and ministry outreaches.” Nonetheless, the city assessor only granted a tax exemption for the church’s main building and grounds. The assessor denied exemptions for the parking lot and parsonage. In a brief filed with the Board of Assessment Review, the city attorney admitted, “Were Aldersgate also entitled to exemption as a charitable and benevolent organization, the entire property would be exempt from taxation.” The lawsuit, Aldersgate United Methodist Church v. City of Rockland, argues that the differential treatment between charitable institutions and churches is unconstitutional. Portland attorney Stephen C. Whiting, one of more than 2,100 attorneys in the ADF alliance, is serving as local counsel. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
Israeli Postal Workers Object to Delivering New Testaments
The ReligionClause blog has a very interesting post that nicely relates to our Basketball Tournament topic. Here is the money passage: In Israel, mail carriers in the city of Ramat Gan are refusing to deliver thousands of copies of the New Testament translated into Hebrew that have been mailed to city residents. According to YNet News today, religious mail carriers are asserting that delivering the books, which they see as missionary material, violates their conscience. They say that delivering the books to Jewish residents violates halacha (Jewish religious law). In the past, we have discussed whether postal workers have a religious liberty right to refuse to deliver abortion-related material. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Sat, 3/3/12, Richard D. Friedman rdfrd...@umich.edu wrote: From: Richard D. Friedman rdfrd...@umich.edu Subject: Re: Basketball tournaments on the Sabbath To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Date: Saturday, March 3, 2012, 3:48 PM Say what? Although I'm a member of this list, I don't follow the law in this area closely, but I know enough that Smith limited Sherbert -- or at least it sure appeared to do so, and Congress sure thought so in purporting to restore religious freedoms after Smith. I assume Marci has a log-considered take on Smith that is contrary to this widely held perception (shared, e.g., by Wikipedia's article on Smith), but I can't see how that goes without saying. Rich Friedman At 06:27 PM 3/3/2012, Marci Hamilton wrote: I'm sure it goes without saying that Rick is incorrect about Smith. It did not gut anything It was a case of first impression in the Court's eyes and rightly so. That is what the historical record at the Court establishes clearly. Folks can dislike Smith but lets at least nuance the discussion to the point where preferences do not substitute for the actual doctrinal history Marci On Mar 3, 2012, at 5:57 PM, Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu wrote: Since I have so often -- and often vigorously -- disagreed with Rick, I thought it appropriate to endorse his analysis and his use of the Franklin analogy. Paul Finkelm Connected by DROID on Verizon Wireless -Original message- From: Rick Duncan nebraskalawp...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Mar 3, 2012 22:47:38 GMT+00:00 Subject: RE: Basketball tournaments on the Sabbath I speak about religious liberty at lots of CLEs for conservative Christian lawyers and law students, and I try to tell them that religious liberty is a lot like Franklin's view of the American Revolution--We better all hang together, or most assuredly we will all hang separately. The cases in which religious liberty has taken a hit--Reynolds and Smith are two of the best examples--are ones involving unpopular religious groups or practices. I know a lot of Christians were not to upset about Smith--but Smith gutted free exercise for everyone. I know you all know this, but it is worth remembering from time to time. Prof. Rick Duncan (Nebraska Law) See my recent paper on The Tea Party, federalism, and liberty at: http://ssrn.com/abstract=1984699 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Sat, 3/3/12, Douglas Laycock dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu Subject: RE: Basketball tournaments on the Sabbath To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Saturday, March 3, 2012, 8:26 AM This morning's story in the Times confirms the unreconstructed Texans theory. It looks like the conservative evangelical schools have taken control of this organization, and tolerance of diversity has never been one of their strengths. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. Friedman Sent: Saturday, March 03, 2012 12:19 AM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath The TAPPS website, http://www.tapps.net/, indicates that they agreed to let Beren play when presented with the papers, before
Re: Selective Support of Religious Liberty
I agree with a lot of what Marty says here (although some of us see Newdow as a hecklers' veto case, rather than a religious liberty case). I was invited to participate in a debate last year at Miami Law on the ground zero mosque issue. Since I was the conservative/FedSoc tribute in these Hunger Games, I think everyone expected me to oppose the mosque. Instead, I showed up talking religious liberty under the 1A and RLUIPA! It wasn't much of a debate, but we had a great Program on religious liberty and religious land use. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Sun, 3/4/12, Marty Lederman lederman.ma...@gmail.com wrote: From: Marty Lederman lederman.ma...@gmail.com Subject: Selective Support of Religious Liberty To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Sunday, March 4, 2012, 4:16 AM Perhaps a topic worthy of its own dedicated thread: The phenomenon is hardly unique to the evangelical movement. Doug is of course correct that there are many lawyers and others, evangelical or otherwise, who do great work on behalf of religious liberty for all. I am increasingly concerned, however, that the majority of self-professed religious liberty allies, who worked so well and sensitively together on matters such as RFRA and RLUIPA, are distressingly selective when it comes to their solicitude for the religious liberty (and equality) of nonmajoritarian religious observers. I am thinking, in particular, of the rather deafening lack of objection (on this list and in public), resources, amicus support, etc., in high-profile cases such as Simpson v. Chesterfield County (as clear a case of unjustifiable religious discrimination as one can imagine -- and one in which it was impossible to round up any support for amicus participation); Summum; Hernandez; most conspicuously and egregiously, the Park51/Cordoba House controversy; and, I would add, Newdow. The list could go on. There are, of course, exceptions -- very important exceptions. (See, e.g., Doug's own superlative brief in Newdow; AJC's amicus support in Hernandez) And I realize that every case has its own idiosyncracies and contested predicates. Still, I find myself increasingly dubious about whether the religious liberty coalition includes many who are truly dedicated to religious liberty, broadly speaking. I realize this is a sensitive and complex topic. And if it results primarily in acrimony here, I offer my apology in advance. But it seems to have been lurking beneath the surface of many cases discussed on this list over the past few years, and therefore I thought perhaps it warrants its own discussion, not least because I would love to be persuaded that my suspicions and disappointments are unwarranted. On Sat, Mar 3, 2012 at 11:49 AM, Douglas Laycock dlayc...@virginia.edu wrote: Well, I thought the e-mail below was going only to one person. So let me provide more context for the comment. Of course there are many tolerant people in the evangelical movement, including lawyers who do great work on behalf of religious liberty for all. They understand that religious liberty is not safe for anyone unless it protects everyone. But there are many others, whose work is dedicated to issues other than religious liberty, who have not thought about these issues and have not gotten that message. In my 25 years in Texas, I met and worked with and read reports of the comments of many evangelicals who were comfortable with diversity and tolerant of Jews and Muslims, and of many others who were not. And all I meant to say was that folks from the second group seem to be in control of the Texas Association of Private and Parochial Schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, March 03, 2012 11:26 AM To: 'Law Religion issues for Law Academics' Subject: RE: Basketball tournaments on the Sabbath This morning's story in the Times confirms the unreconstructed Texans theory. It looks like the conservative evangelical schools have taken control of this organization, and tolerance of diversity has never been one of their strengths. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
Re: Basketball tournaments on the Sabbath
This was clearly the right thing to do. An association of private religious schools should be eager to recognize religious liberty for everyone. Prof. Rick Duncan (Nebraska Law) See my recent paper on The Tea Party, federalism, and liberty at: http://ssrn.com/abstract=1984699 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Fri, 3/2/12, Richard D. Friedman rdfrd...@umich.edu wrote: From: Richard D. Friedman rdfrd...@umich.edu Subject: Re: Basketball tournaments on the Sabbath To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Friday, March 2, 2012, 9:19 PM The TAPPS website, http://www.tapps.net/, indicates that they agreed to let Beren play when presented with the papers, before they were actually filed. But the lawyer who signed the complaint -- which included the application for the TRO -- confirmed to me that the papers were indeed filed. I get the impression that TAPPS, while saying adamantly that they were going to adhere to their schedule, decided they would fold quickly if sued; I think someone there finally realized that they were not casting themselves in a favorable light. Rich Friedman At 07:19 PM 3/2/2012, you wrote: It would look less like a discrimination claim and more like an exemption claim. Judges tend to naively assume that the calendar is a neutral set of rules, and the sharply different treatment of Sunday and Saturday here would make it more obvious than usual that that just isn't true. By the way, I was confused about chronology. The complaint was filed, and TAPPS caved, yesterday. There was another story in the Times this morning. Haven't heard the score of the game. On Fri, 2 Mar 2012 23:11:44 + Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu wrote: I am guessing that the leaders of this organization never dreamed of a Jewish basketball team going to the finals. They never heard of Dolph Shayes or Nancy Lieberman. More seriously: If the organization (which includes many Christian schools) played games on Sundays, would the Hebrew high school be in a weaker position? * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Friday, March 02, 2012 6:03 PM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath Today's first semi-final: Houston Beren 58, Dallas Covenant 46 -- final is after sundown tomorrow evening. Thanks, Doug. On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell edarr...@sbcglobal.netmailto:edarr...@sbcglobal.net wrote: If your position is utterly untenable as a matter of public relations, it may not matter that the other side's state action theory is very weak. But they had to file the lawsuit before common sense could prevail. One more demonstration of the value of lawyers. Good news that they've scheduled the game to fit it in. Good, good news. Ed Darrell Dallas From: Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Fri, March 2, 2012 3:35:05 PM Subject: RE: Basketball tournaments on the Sabbath A somewhat similar lawsuit was litigated by students attending the Portland Adventist Academy (and their parents) against the Oregon State Activities Association which is a state actor. After 8 years of litigation, the students succeeded in their state anti-discrimination claims. See Nakashima v. Bd. Of Educ., 334 Or. 487 (2008) Alan Brownstein From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, March 02, 2012 11:48 AM To: 'Law Religion issues for Law Academics' Subject: Basketball tournaments on the Sabbath Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing
RE: Basketball tournaments on the Sabbath
I speak about religious liberty at lots of CLEs for conservative Christian lawyers and law students, and I try to tell them that religious liberty is a lot like Franklin's view of the American Revolution--We better all hang together, or most assuredly we will all hang separately. The cases in which religious liberty has taken a hit--Reynolds and Smith are two of the best examples--are ones involving unpopular religious groups or practices. I know a lot of Christians were not to upset about Smith--but Smith gutted free exercise for everyone. I know you all know this, but it is worth remembering from time to time. Prof. Rick Duncan (Nebraska Law) See my recent paper on The Tea Party, federalism, and liberty at: http://ssrn.com/abstract=1984699 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Sat, 3/3/12, Douglas Laycock dlayc...@virginia.edu wrote: From: Douglas Laycock dlayc...@virginia.edu Subject: RE: Basketball tournaments on the Sabbath To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Saturday, March 3, 2012, 8:26 AM This morning's story in the Times confirms the unreconstructed Texans theory. It looks like the conservative evangelical schools have taken control of this organization, and tolerance of diversity has never been one of their strengths. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. Friedman Sent: Saturday, March 03, 2012 12:19 AM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath The TAPPS website, http://www.tapps.net/, indicates that they agreed to let Beren play when presented with the papers, before they were actually filed. But the lawyer who signed the complaint -- which included the application for the TRO -- confirmed to me that the papers were indeed filed. I get the impression that TAPPS, while saying adamantly that they were going to adhere to their schedule, decided they would fold quickly if sued; I think someone there finally realized that they were not casting themselves in a favorable light. Rich Friedman At 07:19 PM 3/2/2012, you wrote: It would look less like a discrimination claim and more like an exemption claim. Judges tend to naively assume that the calendar is a neutral set of rules, and the sharply different treatment of Sunday and Saturday here would make it more obvious than usual that that just isn't true. By the way, I was confused about chronology. The complaint was filed, and TAPPS caved, yesterday. There was another story in the Times this morning. Haven't heard the score of the game. On Fri, 2 Mar 2012 23:11:44 + Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu wrote: I am guessing that the leaders of this organization never dreamed of a Jewish basketball team going to the finals. They never heard of Dolph Shayes or Nancy Lieberman. More seriously: If the organization (which includes many Christian schools) played games on Sundays, would the Hebrew high school be in a weaker position? * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Friday, March 02, 2012 6:03 PM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath Today's first semi-final: Houston Beren 58, Dallas Covenant 46 -- final is after sundown tomorrow evening. Thanks, Doug. On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell edarr...@sbcglobal.netmailto:edarr...@sbcglobal.net wrote: If your position is utterly untenable as a matter of public relations, it may not matter that the other side's state action theory is very weak. But they had to file the lawsuit before common sense could prevail. One more demonstration of the value of lawyers. Good news that they've scheduled the game to fit it in. Good, good news. Ed Darrell Dallas From: Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Fri, March 2, 2012 3:35:05 PM
British Preacher Arrested For Preaching Homosexulairt a Sin
Here is the video of the arrest. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Thu, 5/13/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: A real-life on-campus example To: religionlaw@lists.ucla.edu Date: Thursday, May 13, 2010, 11:04 AM Rick-- This strikes me as your desired interpretation of the law, not the law as it stands. and it does not reflect the case. Yours and CLS's reasoning leads to an absolutely absurd result. When we have a court telling a university or law school that it cannot require all school-supported groups to include all students (if any student desires), as part of a mission to create open dialogue, then we might as well hand in our tenure and the academic freedom attached to it. As I said at the start, CLS's position is deeply anti-intellectual and requires one to buy into a Balkanized view of the universe. Years ago, I taught a seminar in Budapest with students from the Balkans. They described the disintegration of a shared culture this way. It used to be that when you got on the subway or the train, everyone was a fellow citizen, not a Jew or a Christian or a Muslim. Everyone shared some common ground and people were polite to each other regardless. Then, the disintegration started and people became very conscious of the religious identity of the person across the aisle and seated next to them. Once that crept into the mindset, you became very uncomfortable seated next to someone of a different religion, you distrusted other believers automatically, as part of the culture. I will never forget their sense of loss or their sincerity. I think CLS's position (as well as Wide Awake's position in Rosenberger) as being a step in that direction. In this era, we need far more effort to find common ground and ways for different believers to speak to each other. Exclusion in the academic context, where there is supposed to be wide-ranging, challenging discourse, seems precisely the wrong move. Marci -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, May 13, 2010 12:51 pm Subject: RE: A real-life on-campus example Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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. -Inline Attachment Follows- ___ 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
Re: A real-life on-campus example
Marci says: It is not majoritarian but rather the marketplace. Expressive association is a new right with little justification in history and I am beginning to think a large step toward government sponsored Balkanization Does the government have an obligation to make sure dwindling religions remain viable. I would say absolutely not. But apparently Mark would disagree? Expressive association lies at the heart of freedom of speech and freedom of belief. It is not designed to protect dwindling religions from extinction. Christianity thrives in the catacombs. The CLS will survive attempts by Hastings to drive it off campus. The purpose of expressive association is to prevent govt from watering down or distorting the expressive beliefs of groups organized for the purpose of expressing those beliefs. Quite frankly, these attacks on the CLS on campus are driven by a kind of fundamentalism that has captured much, but not all, of academia. There is an established truth about human sexuality on campus, and any group that rejects that established dogma must be driven out of the on-campus marketplace of ideas. What is it about that established truth that leads people who normally praise open-mindedness to be so close-minded as to want to eradicate ideas that challenge it in the marketplace of ideas. I say let CLS and Outlaw meet on campus and let the marketplace of ideas decide which version of the truth is the true truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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 real-life on-campus example
Marci says: Groups thrive and shrivel and respond to and interact with the culture and if they cannot adapt to broadbased moral and social changes by changing their beliefs and practices, they become marginalized. I have no further questions of this witness. Marci's admission--that groups like the CLS must adapt to broadbased moral and social changes by changing their beliefs--demonstrates the important purpose of freedom of expressive association. That core purpose is that Government should not use its coercive power (including its power over public fora) to coerce expressive groups into changing their beliefs. Government has no business telling expressive groups which beliefs are acceptable and which are unacceptable. Hastings can create a public forum and allow the marketplace to decide which ideas are marginal and which are not. Or it can close the forum and allow only school-sponsored groups to meet. But it cannot engage the fiction of maintaining a marketplace of ideas, while at the same time using its power to suppress ideas and beliefs that reject established versions of the truth. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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 real-life on-campus example
Chip, the problem with the all comers policy, even if applied across the board, is that it entirely destroys the ability of student expressive groups to organize around a set of beliefs and viewpoints. It is not viewpoint discriminatory (if applied to all), but it destroys all attempts to organize on the basis of viewpoint and belief. It is like a rule that says no one can engage in speech on public sidewalks. Such a rule completely eliminates free speech in a public forum, even though it doesn't discriminate on the basis of viewpoint. If CLS and all other student expressive groups have a right of expressive association concerning their membership policies, Hastings violates that First Amendment right by demanding that it be waived as a condition of access to a limited public forum. Such an unconstitutional condition is also an unreasonable restriction in light of the purpose of the forum (which is to create a marketplace of ideas for student group expression). Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Factual Clarification re CLS
Alan writes: Mark's response suggests that the forum Hastings created was more of a designated limited public forum than a designated public forum. It has parameters designed to serve a particular purpose -- to promote a diversity of viewpoint among groups for the benefit of the entire student body. Assuming that this is a legitimate parameter to impose on a limited public forum, Hastings may deny access to the forum to groups that do not fit within the forum's parameters. A group that excluded students from participating in events and discussions would fail to satisfy the forum's requirements and could be denied access to it. Hastings created the all comers policy on the fly, perhaps as part of its litigation strategy, but I think Alan sums up their effort in the best light possible. Consider this alternative description: Hastings is attempting to create a designated limited public forum for all student groups that are willing to waive their right to expressive association by being open to include all comers as members, including those who would detract from the group's expressive purposes. Is this another accurate way of summing up what Hastings is trying to do? Why is this condition on expressive association not an unconstitutional condition? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Factual Clarification re CLS
How fragile is the public forum protections of cases like Widmar, Lamb's Chapel, and Good News? Let me re-phrase one of Eugene's hypos: A [public library with unused meeting rooms] is attempting to create a designated public forum for all [community groups] that decline to discriminate in officers and members based on race, religion, sex, sexual orientation, [or any other reason], but not those who exercise their right to expressive association by so discriminating, even when their expressive purpose would be better served by discriminating. If you want to associate in a way that discriminates, do it with your own money and your own property. Why wouldn't this be equally constitutional? If Eugene's implication is correct, all the govt has to do to exclude church's, religious ministries, and even secular expressive groups like Planned Parenthood and the NAACP from public fora is to adopt an all comers rule as part of its designated forum policy and then exclude all groups that insist on keeping their right of expressive association (their right to exclude members and leaders who do not share the groups' expressive purposes). Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar would have reversed the results in those cases, and led to the Court's permitting govt to deny the plaintiffs in those cases access to the public fora. No? This case is not about equal funding for religious K-12 schools, as Marci suggests. It is about whether a landmark body of law, protecting the right of free speech in public fora, will be eviscerated by a newly-created codicil allowing govt to restrict access to public fora by adopting all comers policies that strike at the heart of freedom of expressive association. In a society committed to freedom of speech, expressive groups should not be forced to choose between their right to access a public forum and their right to expressive association. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Factual Clarification re CLS
I appreciate Alan's very helpful post particularly his concern about speech distortion. I have a question for him and others. Should severe restrictions on freedom of expressive association best be viewed as a kind of viewpoint restriction? If groups speak through their leaders, and if leaders are elected by voting members, the ability of an expressive group to craft and articulate its viewpoint in a designated public forum is indeed made vulnerable to distortion or even total destruction when the state adopts a designated public forum requiring a waiver of associational freedom as a condition to access. I think this is what was bothering Justice Breyer. A marketplace of ideas requires a diversity of views, and a diversity of views is not served by groups that are denied the right to define an expressive identity. I think Breyer was saying such a fantastical forum is more like a group hug than a marketplace of ideas. Like Doug Laycock, I have exams that need to be graded. I can't wait to read the opinions that come down in this case. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Justice Breyer in Hastings case
Marci asks: Where is the evidence that Hastings required them to meet off-campus? Someone helped me with some research, and here is the evidence Marci requires: 1. Even the district court observed that [i]t is undisputed that CLS is being denied...access to particular areas of the campus and some avenues of communicating with its members and other students. [Pet. App. 39a]. The college's general counsel wrote CLS that [b]ecause CLS is not a registered student organization, at this point use of college resources is limited. [Reply Br. 7]. 2. CLS was denied access to almost all communication channels within the law school, e.g., the student organizations fair, the student email list, the law school weekly newsletter regarding student activities, bulletin boards used by other student groups, weekly email announcements of activities, and the Student Information Center. It was allowed access only to a bulletin board available to off-campus persons and chalkboards. [Pet. Br. at 12, 23-26]. 3. The access to meeting space was an illusory offer. As Hastings' counsel explained the offer to the district court: Hastings allows community groups to some degree to use its facilities, sometimes on a pay basis...if they're available after priority is given to registered organizations. In other words, CLS may use facilities on a space-available basis only after priority is given to the 60 recognized student groups--and CLS could be charged a rental fee. Hastings' counsel also made clear that the offer could be revoked at any time. [Reply Br. at 5-8; Cert. Reply Br. at 4; Pet. Br. at 11-12] 4. Campus regulations require [a]ll persons on College property...to abide by College policies and campus regulations. (Reg. 11.00; Reg. 31.12 [Pet. App. 75a, 77a]). The Nondiscrimination Policy applies to everyone on College property, not just to recognized student groups. [Cert. Reply Br. at 4-5; Reply Br. at 7]. Hastings has never even tried to explain that discrepancy. 5. When CLS twice requested access in Fall 2005 (the year after the suit began), it was met with the bureaucratic stall so that none of its requests to meet on campus was granted in time for the event to be held. [Reply Br. at 7-8]. I think we could dig up more examples if necessary. But this should suffice as a response to Marci's challenge. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Justice Breyer in Hastings case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 7:02 AM Where is the evidence that Hastings required them to meet off-campus? Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Tue, 11 May 2010 09:48:54 To: religionlaw@lists.ucla.edu Subject: Re: Justice Breyer in Hastings case ___ 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: A question about the must give religious exemptions to the same extent as secular exemptions theory
I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than others. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 9:32 AM A recent case that distinguished FOP Newark Lodge No. 12 v. City of Newark (3d Cir. 1999) (see http://volokh.com/2010/05/11/court-rejects-muslim-police-officers-demand-for-accommodation-of-his-religious-practice-of-wearing-a-full-beard/ for a post on the recent case) led me to think: How would the FOP Newark Lodge rationale apply to government employers who give paid parental leave? Say, for instance, that an employee asks for paid leave to go on the Hajj, or to go on a two-month-long religious retreat. Must a government employer that gives paid parental leave likewise give paid leave for its employees’ longish religious absences? (And if the answer is “no, because FOP Newark doesn’t apply to payment of money,” then how does this square with the Sherbert v. Verner argument in support of FOP Newark, given that Sherbert did involve the payment of money?) Eugene -Inline Attachment Follows- ___ 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: A question about the must give religious exemptions to the same extent as secular exemptions theory
I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work-and-to-pay-them-only-when-they-work interest. FOP Newark result (which Rick endorses): Wouldn't this likewise suggest that the government employer must equally accommodate people's religious leaves, even though this would similarly undermine the we-want-people-to-work-and-to-pay-them-only-when-they-work interest? Eugene Rick Duncan writes: I think the issue under Lukumi is whether the parental leave policy is substantially underinclusive with respect to its purpose. The purpose of the no beard policy is uniformity of appearance. An exception for medical beards, but not religious beards, renders the policy underinclusive (medical beards are just as non-uniform as religious beards). What is the purpose of the parental leave policy? Probably something like to help new parents balance work and parenting. Does denying other kinds of leave (religious leave to go on a retreat) while allowing parental leave render the parental leave policy underinclusive with respect to its purpose? I think not. Everyone within the purpose of the policy (all parents of newborn children) are eligible for leave However, in the new police dept. case you mentioned, I am not sure the length of the beard should drive the outcome of the case. Here, the police dept exempts medical beards to the extent necessary to meet the medical needs of officers. Religious beards should also be entitled to accommodation to the extent necessary to meet the religious needs of officers. The relative length of the beards should not be constitutionally controlling, unless some beards are more non-uniform than 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
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
As always in the law as in the day, there is a period of light, a period of darkness, and a period of twilight. It may well be that the line between generally applicable and non-generally applicable is sometimes malleable, sometimes neither night nor day, but twilight. I am no fan of Smith and its rules. I would prefer a bright line no substantial burdens on religious exercise rule. But under Smith and Lukumi, religious freedom is protected only under the exceptions created by the Court. And a law that is not generally applicable (because it is substantially underinclusive) triggers strict scrutiny under Lukumi when it burdens free exercise. I can live with some twilight, some malleability, if that is the price of providing some token constitutional protection to the free exercise of religion. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 12:20 PM Then why can’t the tolerance for beards in employees whose medical conditions counsel against shaving be understood as “an affirmative policy” designed to help people who have a medical disability, and also to avoid disparate impact based on race? (Recall that the underlying medical condition is much more common among blacks than among whites.) I should think that, if a policy that discriminates between parents who send their kids to public schools and those who send their kids to private school is struck down, it would be because it discriminates against parents who exercise their Pierce parental rights. In fact, if a school gave paid leave for parents to attend parent-teacher conferences in religious schools but not secular schools, I would think that this would unconstitutionally favor religion. But even setting that aside, couldn’t one equally classify the hypothetical policy that allows paid leave for parents to attend parent-teacher conferences in public schools as “an affirmative policy designed to subsidize public schooling, and parenting of employees”? That’s the problem with this “affirmative policy” / “exception” analysis – it seems entirely malleable, driven by the result courts want to reach rather than driving the result. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
I was just reading the London Times and came across this item, which reminds me of Eugene's recent police leave hypo: Police officers have been given the right to take days off to dance naked on the solstices, celebrate fertility rituals and burn Yule logs if they profess pagan beliefs. The Pagan Police Association claimed yesterday that it had been recognised by the Home Office as a “diversity staff support association” — a status also enjoyed by groups representing female, black, gay, Muslim and disabled officers. Endorsement would mean that chief constables could not refuse a pagan officer’s request to take feast days as part of his or her annual leave. The eight pagan festivals include Imbolc (the feast of lactating sheep), Lammas (the harvest festival) and the Summer Solstice (when mead drinking and naked dancing are the order of the day). Problematically, the pagan festivals also include Samhain (known to non-pagans as Hallowe’en), a day when police leave is often cancelled because of the high incidence of vandalism, violence and antisocial behaviour Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 12:20 PM Then why can’t the tolerance for beards in employees whose medical conditions counsel against shaving be understood as “an affirmative policy” designed to help people who have a medical disability, and also to avoid disparate impact based on race? (Recall that the underlying medical condition is much more common among blacks than among whites.) I should think that, if a policy that discriminates between parents who send their kids to public schools and those who send their kids to private school is struck down, it would be because it discriminates against parents who exercise their Pierce parental rights. In fact, if a school gave paid leave for parents to attend parent-teacher conferences in religious schools but not secular schools, I would think that this would unconstitutionally favor religion. But even setting that aside, couldn’t one equally classify the hypothetical policy that allows paid leave for parents to attend parent-teacher conferences in public schools as “an affirmative policy designed to subsidize public schooling, and parenting of employees”? That’s the problem with this “affirmative policy” / “exception” analysis – it seems entirely malleable, driven by the result courts want to reach rather than driving the result. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 12:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy
RE: A question about the must give religious exemptions to the same extent as secular exemptions theory
To answer Sandy, if no one were allowed days off to care for their parents, under Smith the policy would probably be generally applicable and there would be no Free Ex violation in the case of the worker who wished to honor his father and mother. He or she should probably use a vacation day. More typically, you might see employers allow workers some kind of excused absence from work for good cause or extraordinary circumstances. This might well be a system of individualized exemptions that would trigger strict scrutiny under the new and (not) improved Sherbert, if a religious worker were denied an excused absence to attend to some religious duty. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Sanford Levinson slevin...@law.utexas.edu wrote: From: Sanford Levinson slevin...@law.utexas.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 1:20 PM For what it’s worth, I agree that a parent-teachers conference policy must extend to all schools and not only public schools. Am I correct that Rick wouldn’t believe that businesses would have to accommodate adult children who needed to attend a conference with their aged parents’ doctors (and the like), even if the child/worker said that it was part of “honoring thy father and thy mother”? (Incidentally, this is why I generally support “personal days” and “leaves” rather than specified events, like parent-teacher conferences, because the latter can always be described as subsidies/windfalls to a particular subgroup and always be used to rev up equal protection arguments. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, May 11, 2010 2:01 PM To: Law Religion issues for Law Academics Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory I guess I just disagree that the parental leave policy would be viewed as an exception to the work-for-pay policy, rather than as an affirmative policy designed to subsidize childbirth and parenting of employees. If the policy is an affirmative one (as I view it), then it is not underinclusive, because all parents with infants are covered. How about a govt employer who allows paid leave for parents to attend parent-teacher conferences in public schools, but not private schools. If I am denied leave to attend a conference at my daughter's private religious school, do I have a Fr Ex claim under a law that is not generally applicable? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 5/11/10, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: RE: A question about the must give religious exemptions to the same extent as secular exemptions theory To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, May 11, 2010, 11:30 AM I think the analysis below mixes the purpose of the policy with the purpose of the exception. Here’s how I see the structure of the policies at issue: Purpose of the no beard policy: To preserve uniformity of appearance. Purpose of the medical exception: To accommodate people who have medical problems. Does the medical exception undermine the purpose of the no beard policy? Yes, but the police department thinks that accommodating people's medical needs is important enough to justify some undermining of the uniformity interest. FOP Newark result (which Rick endorses): Therefore the police department must equally accommodate people's religious beard preferences, even though this would similarly undermine the uniformity interest. Purpose of the you-must-work-to-be-paid policy: To get people to work, and to pay only for time worked. Purpose of the parental leave exception: To accommodate people who are having children. Does the parental leave exception undermine the purpose of the you-must-work-to-be-paid policy? Yes, but the government employer thinks that accommodating parents' needs is important enough to justify some undermining of the we-want-people-to-work
RE: Factual Clarification re CLS
Interestingly, Hastings takes the position that the policy it is enforcing against the CLS is not a sexual orientation policy, but an all comers policy, a policy that forbids any group from discriminating against any person who wishes to be a member. Under this policy, an NAACP student group would have to admit racists as voting members and even leaders of the group, and the Young Republicans would have to allow democrats to be voting members and leaders. I think the school took this tack to avoid the viewpoint discrimination argument, but may have substituted an even greater problem for the one it seeks to avoid. The school may even lose Justice Breyer, who in the oral argument referred to the policy as fantastical and as creating a silly kind of forum in which everyone gets together in a nice discussion group and hugs each other. That led Mike McConnell to conclude that the policy does not even provide a rational basis for excluding a student group from a forum with the stated purpose of creating a diverse marketplace of ideas. As Mike put it, the all comers policy does not even slightly advance the stated purpose of the forum, and indeed is destructive of that purpose by prohibiting groups from having a membership policy based upon its organizing principles and beliefs. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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: Factual Clarification re CLS
Perhaps democrats will not attempt to take control of the Young Republicans. But I think there is a good chance that socially liberal Christians may take control of a conservative Christian group that can't protect its doctrinal beliefs through its membership policy. By the way, it is clear that the CLS allows all comers to attend its meetings. This case is strictly about who can control an organization's beliefs and speech, not about who may attend meetings. I have read the oral argument transcript several times. And it is clear to me that Breyer believes an all comers membership policy is silly and completely inconsistent with a marketplace of ideas in which many groups with different beliefs debate and express different ideas from very different perspectives. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Justice Breyer in Hastings case
Marci, the limiting principle is the public forum doctrine. CLS is not asking for public funding in a vacuum. They merely want access to Hastings' limited public forum for student groups, access that respects their right of expressive association. Hastings is searching for a loophole to overrule the results in Widmar, Mergens, Lambs Chapel, and Good News. If all the govt has to do to keep churches, religious organizations, and other unpopular groups from having access to a public forum is adopt an all comers policy that excludes groups which exclude from membership those who reject their beliefs and expressive ideas, then Widmar, Lambs Chapel, and Good News are meaningless. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Mon, 5/10/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Justice Breyer in Hastings case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 10, 2010, 7:31 PM For what it is worth, Doug, I will stick with my reading of the transcript. It is not as though either of us will be writing the opinion(s) In any event, what is more interesting to me is the attempt by conservative Christians to demand university funds and recognition when they can meet without it. Where is the stopping point here? I was quite serious when I said that the reasoning propounded by CLS is one short step away from demanding the university pay for all worship services. And then schools can be required to segregate students in classes or campus housing so there is no cross-pollination between believers. And separate cafeterias. Where does this push to turn the public sphere into the service of the private sphere end? I am sincerely interested in the limiting principle if Doug or others can articulate it Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Douglas Laycock layco...@umich.edu Date: Mon, 10 May 2010 20:53:23 To: religionlaw@lists.ucla.edu Subject: Justice Breyer in Hastings case ___ 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: Comparative Law of Religious Liberty
I want to thank all of you who posted citations and suggestions. I think I have a wealth of materials to choose from now. Thanks, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm, It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Mon, 10/5/09, Brownstein, Alan aebrownst...@ucdavis.edu wrote: From: Brownstein, Alan aebrownst...@ucdavis.edu Subject: RE: Comparative Law of Religious Liberty To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, October 5, 2009, 1:18 PM If it isn’t too inappropriate to mention my own work here, Leslie Jacobs and I have a short chapter on the head scarf debate in our book, Global Issues in Freedom of Speech and Religion (Thomson/West). The book is a compilation of edited cases and commentary and includes 160 pages of materials from, or relating to, 8 or 9 different countries and the European Court dealing with a broad range of church-state issues. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Sunday, October 04, 2009 1:49 PM To: Law Religion issues for Law Academics Subject: Comparative Law of Religious Liberty I would like to add a comparative unit to my Religion and the Constitution class. Can anyone on the list recommend materials covering, say, the French approach to non-establishment? Is there an article or a case or two that I could assign my students to give them some insights into the French approach to non-establishment (perhaps something good on the head scarf issue)? Off list responses are fine. Thanks. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) -Inline Attachment Follows- ___ 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: A Concrete Example
Marci says: True enough, but the civil rights statutes have operated to effect eqaulity, not superiority. RLUIPA sometimes protects equality (e.g. when zoning laws employ individualized systems such as special use permits and variances, and under the equal terms provision), and sometimes protects religious liberty (free exercise beyond the stingy reach of Smith). We should never lose sight of the fact that zoning exclusions strike at the heart of religious exercise, at the right of a church or religious assembly to meet for worship or religious ministry on its own property! RLUIPA is not only a civil rights law, it is one of the most important civil rights laws ever enacted. I am all for federalism, but the right of religious communities to meet for worship and ministry is an inalienable right that deserves the protection of federal civil rights legislation. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Fri, 6/26/09, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: A Concrete Example To: religionlaw@lists.ucla.edu Date: Friday, June 26, 2009, 10:50 AM True enough, but the civil rights statutes have operated to effect eqaulity, not superiority. Marci -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 26, 2009 1:04 pm Subject: RE: A Concrete Example Civil rights statutes do not always just replicate rights already protected under the Constitution. The preclearance provisions of the Voting Rights Act are surely not constitutionally required, nor do they only result in blocking voting changes that would violate the Constitution. Ollie's Barbecue was not constitutionally required to serve African Americans, but Congress appropriately, by way of the 1964 Civil Rights Act, imposed that obligation on Ollie's. (Katzenbach v. McClung.) Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com Sent: Fri 6/26/2009 7:32 AM To: nebraskalawp...@yahoo.com; religionlaw@lists.ucla.edu Subject: Re: A Concrete Example The courts have not agreed with Doug's broad brush and inaccurate description of land use laws and have found that many are not individualized assessments in the constitutional sense. RLUIPA is not written to reflect what the Court meant in Smith, but rather to reach farther. Thus, you can have an RLUIPA violation of the substantial burdens provision but no constitutional violation. That is why we get so many rulings/verdicts where there is no constitutional violation but there is an RLUIPA violation. Great example is the recent Boulder County verdict, where not only was there no constitutional violation, but the jury awarded $0 in damages (meaning no injury) and still found an RLUIPA violation. Best case out there to show RLUIPA in its true light. Add to that the district court gave as a remedy the church everything it had originally requested without any further consideration. No other land developer could have pulled off the same result. The equal terms provision is misnamed actually. Its language indicates that religious institutions have equality+, not equality. The better name for RLUIPA is super rights statute not a civil rights statute. In fact, in some ways it is offensive to refer to RLUIPA as a civil rights statute. The latter are historic statutes enacted to bring equality to minorities who were being treated decidedly less well than others. In contrast, RLUIPA exists to give religious developers superior treatment as compared to their residential neighbors and communities. As I have said before, it is the antithesis of civil society. Marci In a message dated 6/25/2009 4:11:00 P.M. Eastern Daylight Time, nebraskalawp...@yahoo.com writes: Marci writes: Rluipa does not protect against the violation of constitutional rights. It is a sui generis statute that gives them much more. The FHA outlaws discrimination. Despite the engineered legislative history of rluipa the cases have not turned on findings of discrimination by a long shot. I reply: Actually, the general rule of RLUIPA (no substantial burdens) arguably does nothing more than enforce the individualized process rule of Smith and Sherbert (as the Court now understands Sherbert). As Doug Laycock once wrote, land use laws (variances, special use permits, etc) are one of the most individualized of all bodies of law. And the equal terms rule arguably enforces the Smith rule protecting free exercise from non-generally applicable burdens. Sounds like a civil rights law
RE: A Concrete Example
Many of the serious problems Marci worries about under RLUIPA--traffic, parking, noise, etc--even if compellingly important, can be mitigated by less restrictive means than excluding religious land users from neighborhoods. For example, generally applicable traffic laws (speed limits, pedestrian crosswalks, speed bumps) and parking laws and noise laws should take care of these concerns. And RLUIPA's equal treatment rule (No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution) merely requires government to treat religious landusers on equal terms with similar secular landusers. For example, a church must be treated on equal terms with a secular assembly, such as a social club or perhpas even a theatre.If the social club is not causing serious police power problems, why should we think that a similar religious landuser is doing any harm? I teach an RLUIPA unit in my 1L Property class, because, like the fair housing laws, RLUIPA protects civil rights in the area of real property law. It is a great opportunity to bring public law into a first year, primarily common law class. My Property students love the 3-hour RLUIPA unit in the course. This is one of the reasons why a 6-credit Property class is useful in the First Year. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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 Concrete Example
Marci writes: Rluipa does not protect against the violation of constitutional rights. It is a sui generis statute that gives them much more. The FHA outlaws discrimination. Despite the engineered legislative history of rluipa the cases have not turned on findings of discrimination by a long shot. I reply: Actually, the general rule of RLUIPA (no substantial burdens) arguably does nothing more than enforce the individualized process rule of Smith and Sherbert (as the Court now understands Sherbert). As Doug Laycock once wrote, land use laws (variances, special use permits, etc) are one of the most individualized of all bodies of law. And the equal terms rule arguably enforces the Smith rule protecting free exercise from non-generally applicable burdens. Sounds like a civil rights law to me! Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Thu, 6/25/09, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: A Concrete Example To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Thursday, June 25, 2009, 9:37 AM Rluipa does not protect against the violation of constitutional rights. It is a sui generis statute that gives them much more. The FHA outlaws discrimination. Despite the engineered legislative history of rluipa the cases have not turned on findings of discrimination by a long shot. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Eric Rassbach erassb...@becketfund.org Date: Thu, 25 Jun 2009 11:05:06 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: RE: A Concrete Example ___ 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: Michael McConnell Resigning from 10th Circuit and Going to Stanford
Mike's opinion in the Colorado Christian University case is one of the finest 1A decisions I have ever read. He was a judge for far too short a time, but his return to academia is sure to produce much good fruit. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Wed, 5/6/09, Conkle, Daniel O. con...@indiana.edu wrote: From: Conkle, Daniel O. con...@indiana.edu Subject: Michael McConnell Resigning from 10th Circuit and Going to Stanford To: conlawp...@lists.ucla.edu conlawp...@lists.ucla.edu, 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Wednesday, May 6, 2009, 8:35 AM For those who haven't seen this news: http://abovethelaw.com/2009/05/musical_chairs_judge_michael_m.php Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu -Inline Attachment Follows- ___ 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: Bowman v. U.S.
Liberty Counsel had a case such as the one Marc describes. It settled favorably. Here is the Liberty Counsel press release concerning the settlement of the case: January 29, 2008 School Board Settles Lawsuit By Amending Policy and Accepting Student’s Community Service Hours at Church Long Beach, CA – The Long Beach District School Board has approved a settlement agreement with Christopher Rand, a high school student who was denied credit for community service hours he completed at his church. Chris has now received full credit for the hours. The district administration also rewrote its community service learning policy to allow students to complete mandatory community service hours at either secular or religious organizations, including churches, on the same terms. In October 2007, Liberty Counsel filed a lawsuit against the district because Chris’s school refused to grant credit for more than 70 hours of community service, solely because it was performed at Long Beach Alliance Church. He interacted with the children in the church’s programs, answered questions, assisted with crafts and art projects, supervised activity time to help ensure safety, and performed other duties. After Chris submitted the required documentation regarding his volunteer service, he was denied credit because the district’s prior community service learning policy stated, “Service to your religious community does not count.” If Christopher had given the same service in a secular school or in a nonreligious childcare program, his service would have been credited. Shortly after Liberty Counsel filed suit, the district agreed to award Chris credit for the full 72.5 hours that had previously been rejected. In addition to giving Chris credit for his community service, the district accepted input from Liberty Counsel in revising its policy to comply with the First Amendment. Under the new policy, religious organizations will receive the same treatment as other nonprofit organizations in terms of the types of community service work that is permitted. Students are expressly allowed to supervise and assist with leading organized children’s activities, such as those performed by Chris. The district also agreed to pay attorney’s fees and costs to Liberty Counsel. Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “When community service is a graduation requirement, schools cannot limit service to secular venues. Discrimination against performing community service for religious organizations violates the First Amendment and offends the rich religious heritage that made this country great.” Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Tue, 5/5/09, Marc Stern mst...@ajcongress.org wrote: From: Marc Stern mst...@ajcongress.org Subject: RE: Bowman v. U.S. To: hamilto...@aol.com, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Tuesday, May 5, 2009, 7:25 AM Would the result be the same if a school required community service, but prohibited students from fulfilling that obligation in a religious setting, or excluding say Sunday school teaching from the list of permissible placements? Marc Stern -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 7:51 PM To: Law Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics ReplyTo: Law Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being pure speech? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that education is somehow more than just pure speech, in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: In any event, this is not pure speech -- it is government funding education directed at future careers. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin
Summum Edited Opinion
Does anyone know of a link to a good edited version of Summum? I am teaching a First Amendment Course this summer, and I would like to assign an edited version of the case (with a link for students to access it). Thanks, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Summum
Never mind. I found a link to an edited version of the Summum opinion. It is here if others are interested. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Bowman v. U.S.
How would you all analyze the Free Speech Clause issue in a case that was like Bowman except the exclusion covered participation in activities of schools or organizations teaching or advocating about the need to reduce global warming or about marriage from a gay rights perspective? Would it violate the Free Speech Clause to allow military service personnel to accumulate pension rights via volunteer service in all non-profits except those excluded in the hypo above? If so, don't we have the same free speech issue when the exclusion concerns volunteering for schools teaching from a religious perspective? Again, if the dictum in Locke v. Davey applies, it applies to these secular speech exclusions as well, since Rehnquist merely concluded that a scholarship is not a forum triggering the Free Speech Clause. So, under Davey, a scholarship exclusion for students majoring in gender studies from a feminist perspective would also have failed to trigger the Free Speech Clause. If this seems wrong, it is because it does indeed implicate the FSC to take the viewpoint of the major into account when awarding scholarships such as the Promise Scholarship. The Rehnquist dictum in Davey is both unreasoned and wrong. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Volokh, Eugene vol...@law.ucla.edu wrote: From: Volokh, Eugene vol...@law.ucla.edu Subject: Bowman v. U.S. To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 9:41 AM Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last December but just redesignated two weeks ago as being for publication? Federal law allows a wide range of public and community service by military personnel - including working for organizations that provide elementary, secondary, or postsecondary school teaching, or any other public or community service -- to count toward [one's] years of service needed to obtain a full twenty-year military retirement. But the program excludes participation in activities of organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization (as well as in activities of for-profit businesses, labor unions, and partisan political organizations). Thus, for instance, if someone were volunteering to teach in a school program aimed at spreading various controversial views on environmental responsibility, or social justice, or civil liberties, that would presumably count. But if someone were volunteering to teach in a school program aimed at spreading religious views, that would not count. The Sixth Circuit upheld this against a Free Exercise Clause challenge, citing Locke v. Davey. Is that right? What should the result have been under the Free Speech Clause, if such a claim had been made (presumably relying on Rosenberger)? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Bowman v. U.S.
But Doug, Rehnquist's dictum was completely unreasoned. He merely asserted that a scholarship program is not a speech forum in a case that presented only Free Exercise questions. Why not? Why is the scholarship program closer to Rust than to Rosenberger? Rehnquist doesn't even hint at an answer. Thus, if the facts of Davey were re-litigated tomorrow, and the Free Sp issue were clearly before the Ct, it is almost a case of first impression. The dictum in Davey doesn't change the fact that the Ct has never explained why viewpoint restrictions in scholarships do not trigger serious Free Sp scrutiny. So my hypos force the issue; and no one seems to like the answer that a scholarship exclusion for students majoring in gender studies from a feminist perspective does not even trigger serious scrutiny under the Free Sp Cl. It ought to. And if the case came before the Ct, Davey would not preclude the issue. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Bowman v. U.S.
Art Spitzer asks some great questions: I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family income). Thus, viewpoint discrimination is forbidden. It is the clear viewpoint discrimination that make the hypos I pose seem so clearly unconstitutional--a scholarship for all students except those who major in gender studies from a feminist perspective, or except those who major in economics from a socialist perspective. Would anyone on the list uphold such viewpoint restrictions on scholarships? Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not preclude the issue from being considered in a future case in which the Fr Sp issue is part of the question presented. The test suites I propose make Rehnquist's non-analysis in Davey cry out for full and fair reconsideration. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Bowman v. U.S.
Art writes: But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? I guess I look at a college scholarship as govt facilitating students opportunity to receive educative speech from the college and major of their choosing (but providing that one major from a particular viewpoint is excluded). A college education consists of students listening to educative speech, reading books, speaking out in class discussions, writing papers, and generally engaging in a whole host of expressive activities at the core of free speech. What about a govt program funding free movie tickets to needy citizens but providing that the tickets could not be used to attend a movie that expressed an anti-war point of view? Or govt providing vouchers for needy citizens to purchase newspapers but providing that the voucher could not be used to purchase a newspaper that had an editorial position in favor of same-sex marriage? Or govt providing a tax credit for the purchase of books except books expressing a viewpoint supporting abortion rights? In all of these cases, Art, assume the citizen eligible for the free tickets, newspaper voucher, or tax credit walked into your office and asked you if they have a claim under the Free Sp Cl. What would you advise them? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Mon, 5/4/09, artspit...@aol.com artspit...@aol.com wrote: From: artspit...@aol.com artspit...@aol.com Subject: Re: Bowman v. U.S. To: religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 8:59 PM Thanks for the compliment, Rick. I can see how funding a Department of X, or a Chair of X Studies, could be characterized as funding the speech of one or more professors about X. But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? Art In a message dated 5/4/09 11:41:55 PM, nebraskalawp...@yahoo.com writes: Art Spitzer asks some great questions: I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family
RE: Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United
Here is another example--from the Religion Clause blog-- of the inevitable conflict between gay rights and religious liberty: Former Student Challenges University's Requirements for Counseling Practicum Last week, a former graduate student at Michigan State University filed suit in a Michigan federal district court alleging that she was unconstitutionally dismissed from the University's graduate Counselling Program solely because her religious beliefs and expression regarding homosexual behavior contradicted those of the University's counseling department. Ward believes that homosexual behavior is immoral and can be changed. In Ward v. Members of the Board of Control of Eastern Michigan University, (ED MI, filed 4/2/2009) (full text of complaint), Julea Ward alleged that disciplinary proceedings were brought against her because in her Counseling Practicum course she referred a homosexual client to another counsellor rather than affirm and validate the client's homosexual conduct. She was told that to remain in the program she would need to undergo a remediation program to see the error of her ways and change her belief system on homosexual conduct. Alliance Defense Fund issued a release announcing the filing of the lawsuit. The University today refused specific comment, but said that it is a diverse campus with a strong commitment not to discriminate on the basis of gender, race, disability, religion, sexual orientation, gender identity or expression. (Ann Arbor News.) Another is what public schools teach impressionable children about marriage and human sexuality in states where the law affirms the goodness of homosexual marriages and relationships. The law is a seminar and the public school curricula, which is taught to all our children, will reflect what the law teaches about marriage and sexual orientation. Again, school vouchers would allow parents to opt out of the common curriculum and avoid the inevitable conflict that arises when one side of the culture war gets to teach the other side's children what is the true, the good and the beautiful. Cheers, Rick Duncan ___ 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: Americans United: Iowa Supreme CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United
Here is the thing, Steve. May a public university officially endorse a statement, say on an official university web page, that says: Here are the local churches that have the right view about evolution or gay rights or abortion rights or salvation or whatever. I am not familiar with the specific ADF case, but I do know that under the Court's endorsement test state actors may not endorse particular religious beliefs about human sexuality or evolution or whatever. Now I am not a fan of the endorsement test, but if it is the law then it would seem to be violated by a Sate University taking an official position about whether evolution or same-sex marriage or anything else is consistent with the Bible or with Christianity or any other faith. Am I wrong? Rick Duncan --- On Tue, 4/7/09, Steve Sanders steve...@umich.edu wrote: From: Steve Sanders steve...@umich.edu Subject: RE: Americans United: Iowa Supreme CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tuesday, April 7, 2009, 12:21 PM Let's say a student comes to a counselor in the same university clinical program and wants help understanding how religion might him better deal with his personal problems. The counselor is an atheist and believes as a matter of conscience that religion does not play a valid role in helping people deal with their problems. The counselor refers the student to another counselor. I predict that the Alliance Defense Fund would sue the school claiming that its counseling program was attempting to impose a certain (derogatory) view about religion, much as ADF recently (successfully) sued a university based on commentary about religious views toward homosexuality that appeared in student-created literature in the school's Safe Zone program. Do Rick and Doug agree that such a suit would be silly and that the common-sense, live-and-let-live ethic also ought to prevail in such a case? _ Steve Sanders Attorney, Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago Co-editor, Sexual Orientation and the Law Blog Adjunct faculty, University of Michigan Law School (Winter term 2010) Email: steve...@umich.edu Personal home page: www.stevesanders.net ___ 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: Government Religious Displays and Substantive Neutrality
Art Spitzer wrote: In a message dated 3/31/09 6:02:12 PM, layco...@umich.edu writes: Here's one more way to think about it: ... the rule that government must be religiously neutral [is] a special protection for religion Government can not try either to coerce you or persuade you to change your views about religion. That ... is the greatest level of possible protection.Yes, but it's an entirely hypothetical (and thus unimportant) protection to those who are comfortably in the majority, and who therefore can, without perceived risk to their own views, seek to get the government to coerce or persuade others to change their views. Isn't that why so many local government officials would react to Doug's excellent point with blank stares? It just doesn't relate to their world. Art Spitzer ACLU It took me a couple of days to run down the reference, but I love the way Profs. Jeffries and Ryan describe the huge gap in the way cultural elites and ordinary folks think about the EC. Jeffries and Ryan observe that the controversy over school prayer revealed a huge gap between the cultural elite and the rest of America. People generally may have supported school prayer and Bible reading, but the leadership class did not. They also note that elite support for the Supreme Court's secularization project was clearly visible in the activities of law professors and deans. See Jeffries Ryan, A Political History of the establishment Clause, 100 MICH. L. REV. 279, 325 (2001). I really enjoyed this thread. Cheers, Rick ___ 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: Using religion for government purposes
Anthony Decinque writes: Let's go back to the hypothetical from earlier, the one about the anti homosexual sign versus the Christians welcome sign. I thought that was a strong hypothetical that really hit to the heart of the issue. Why can the government do A but not B? The answer, I think, is the one given by Madison. Government might be able to decide whether homosexuality is bad or good. In reality, this question seems too tied up in religion and innate response for government to do very well, but government could take an empirical (Enlightenment!) approach to the issue. Turning to religion, however, government doesn't seem to have the same ability. The framers were standing at the end of centuries of religious strife that had settled nothing. Instead, there had just been decades and decades of bloody majority-rule. Religious questions do not lend themselves to earthly resolution. I think the framers decided that religious endorsement by government would never be anything more than thinly-veiled majoritarian oppression. That's certainly a debatable proposition, but I think it was a conclusion that was well informed by history. Based on that conclusion, religion was ruled off limits. I don't disagree that at least as far as Congress is concerned, it has no business legislating whether a particular religion is good or bad. Of course, that is a structural limitation on the power of the Federal Govt to act. The issue for incorporation is how that structural limitation translates into a liberty interest when it is incorporated under the DPC. But even if govt has no business acting as a Theocracy and legislating good and bad religious doctrines and official prayers, it is certainly the business of govt to adopt policies recognizing that in a pluralistic society many different groups are welcome in public schools and at city hall. My hypo involving the respective challenges to a Gay Pride Display and a Nativity Display in a public school or public park goes to the very essence of state and local governmental power to embrace diversity and pluralism. What is the message the law sends to religious families in the public schools when it ignores their complaints about a Gay Pride Display but forbids a Christmas Display under the endorsement test? This is not a case of govt taking an official position on religious truths and religious untruths. It is a case of govt exercising its clearly legitimate power to recognize that in a pluralistic society many different groups come together in the public schools and they are all welcome; and those who are offended must avert their eyes, because we don't give them a heckler's veto to enjoin the Welcome Wagon. Under the endorsement test, the message is very different. Those offended by a display recognizing a religious holiday are empowered to enjoin the welcome sign. Doug Laycock is certainly correct that religious students are not completely silenced, in the sense that they can go home and put up their own nativity displays in their living rooms. But they are silenced when in school. They must walk through the halls seeing displays recognizing Gay Pride, and Cinco de Mayo, and MLK Day, and Earth Day, and (ironically) Diversity Day, but they must stand by and watch religious displays be torn down at the behest of any offended member of the community. It is literally a game of heads you win, and tails we lose. And they know it. And it hurts. And it harms the cause of public education and community. I think it was Chip who said I used the termheckler's veto because it is a negative word that scores points without further reasoning. But the term heckler's veto was used in Summum by Justice Alito to describe those who wish to enjoin govt speech merely because it offends them. Those who attack a Gay Pride display because it offends them are rightly turned away, because they are trying to exercise a heckler's veto. The same is true of those who seek to enjoin Nativity Displays and similar religious displays that offend them. They are trying to silence their fellow citizens who are a willing audience for the welcoming message of these displays. The law treats one group of hecklers one way; and the other group of hecklers another way. And the message of inequality is clear to religious subgroups who are part of our pluralistic society. Cheers, Rick ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Summum
Chip asks me: Rick keeps harping on liberty and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says Christians welcome here? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical). Okay. I'll play. If we assume that the EC is not incorporated--or is only incorporated to the extent of protecting substantial burdens on liberty interests (i.e., to protect against forced participation in religious practices or prayer)--then the cross on the lawn of City Hall does not violate the EC (because the EC does not apply at all). But not everything that is bad is constitutionally forbidden and not everything that is good is constitutionally required. Indeed, the best check on this kind of practice is a combination of state constitutional law and democratic self government. What about a city that puts up a large no homophobes allowed sign on the lawn of city hall. Is that unconstitutional? Does it make many citizens--and almost all conservative religious citizens--feel unwanted in the halls of government? Why should we allow govt to express such hurtful opinions? The point is that all kinds of government speech is offensive to some citizens, and makes some citizens feel like political and cultural outsiders. The Court and the law prof community exaggerates the harm caused by governmental religious speech and minimizes the harm caused by governmental secular speech. When a citizen seeks to enjoin hurtful secular speech by government, we say we can't allow a heckler's veto to silence govt and the rights of the willing audience. When a citizens seeks to enjoin hurtful religious speech by govt, we say he has a right to silence the govt under the EC. I guess, to return to my hypothetical (which is more typical than Chip's example), I think the Gay Pride and Nativity displays should be treated the same under the law--either they are both subject to being silenced by an offended passerby, or they both may stand and we tell offended persons to avert their eyes. Perhaps the First Amendment should be read as a whole (FS, FE, EC) to forbid government from endorsing any idea that offends anyone's sincere beliefs and conscience. No one should be told that he or she is a political, cultural or religious outsider as a result of the govt's speech. Of course, public schools may have to close and public parks may have to be stripped of most displays if we decide to respect everyone's beliefs from the harm of offensive govt endorsements. But that is the price we pay for a society that respects the hurt feelings of everyone. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Summum
I think Eugene makes a great point about the divisiveness caused by the endorsement test. When you enjoin a governmental religious display (such as the Nativity scene I keep harping about), you don't merely silence the govt. You also impose silence on the willing audience (private citizens who wish to see the display). These are many of the same people who were told to avert their eyes when they were offended by the Gay Pride display. This adds insult to injury, and results in people reasonably feeling like outsiders who must play a heads you win tails we lose game with their secular counterparts in the marketplace of ideas. Rick Duncan ___ 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.
Summum
Here are some thoughts of mine I am sharing today with the students in my Con law Seminar in which one of the students is presenting today on Summam: I was re-reading Summum this morning, because Mark is going to give his presentation on the case this afternoon. And here is something that struck me about Justice Alito's opinion. He starts off giving a tribute to the essential nature of government speech. He says: -- the Free Speech Clause... does not regulate government speech -- a government entity has the right to speak for itself --government is entitled to say what it wishes --government may select the views it wants to express --It is the very business of government to favor and disfavor points of view --it is not easy to imagine how government could function if it lacked this freedom --To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question. Yet, without missing a beat or apparently even being aware of the contradiction, Alito goes on to say that of course government speech must comport with the Establishment Clause. Why should this be so? Why should the Court be so ready to accept a heckler's veto against passive government speech--such as a nativity display in a public park acknowledging the fact of the Christmas holiday? Why should we think that the government's critically important right to say what it wishes and to express the viewpoints it chooses is subject to being enjoined at the whim of any citizen who is offended by the government's message acknowledging religion. How could the doctrine of incorporation, which protects only liberty interests against state deprivations, give a citizen the right to restrict government from saying what it wishes by means of a passive display that restricts the liberty of no one, since all one need do if one is offended by a passive display recognizing a religious holiday is to avert one's eye? Is the endorsement test a liberty-protecting test, or is it a structural limitation on government that somehow was mistakenly incorporated as a liberty under the 14th Amendment? These are the questions that keep me up late at night pondering the inconsistencies of the Court's treatment of government speech. Of course, some will say religious speech by government is different, because the EC restricts the power of government to endorse religious ideas. But isn't that a structural limitation on government, as opposed to a protection of liberty? And how can a structural rule restricting the power of Congress under the First Amendment apply against state governments under a test that explicitly incorporates only liberty interests against state deprivations? The thing about the Summum opinion that struck me so vividly was the contrast between Alito's tribute to the right of the state to say what it wishes as essential to the very nature of government and his casual acceptance of the EC as a limitation on the speech of the states. Heckler's vetos are bad except when they are good! Just a few thoughts about a recent decision I thought I would share with the list. Cheers. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Summum
I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes. My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom. Certainly, religious equality is important, but so is cultural equality and political equality. Imagine two passive displays in a public school--one is a nativity scene recognizing the fact that many in the community are celebrating Christmas, and the other is a gay pride display which says support gay equality and stop homophobia. Both of these displays are challenged by students who find them offensive--the nativity display by student A who is offended by the schools endorsement of religion and the gay pride display by student B, a conservative Christian who is offended by the school's endorsement of the message that his religious belief about human sexuality is wrong and must be stopped. Many of you would agree with Justice Alito that the government has a right to take a position denouncing homophobia and that we would deny an essential part of government's power if we allow student B a heckler's veto enjoining the government's right to express its message. So long as the government does not coerce student B into affirming his support for the government's viewpoint, his remedy is to avert his eye rather than to silence the government and those who wish to receive the government's message about gay rights. But not so with student A and his objection to the Christmas display. Even though his liberty is in no way deprived by a passive display recognizing a religious holiday being celebrated by many in the community, he has the right to censor government speech endorsing religion. Suddenly, government speech is not so essential and is subject to a heckler's veto by anyone who takes offense. If Alito is right and the essence of government is to speak out and take the viewpoints of its choice on issues that come up in the marketplace of ideas, why should the EC be interpreted as protecting a non-liberty interest of hecklers to censor religious viewpoints expressed by state and local governments? Because student A feels like an outsider as a result of the state's nativity display? But doesn't student B, the religious homophobe, feel even more like an unwanted outsider when the state endorse the gay pride display and the message that homophobia such as his religious beliefs must be stopped? We all cover the issues Alan raises. But I suspect many of us do not point out the contrast between those offended by the government's secular speech and those offended by the government's religious speech. And even if you accept that the EC is properly incorporated as a liberty interest under the 14th Amendment, what explains the Court's many cases protecting non-liberty claims under the judicially-created endorsement test. The endorsement test is a structural test, not a liberty-protecting test. I think it makes teaching the EC far more interesting when you ask some of these hard questions about the endorsement test as applied via incorporation to the states, and point out the contrast between what Alito's says about government speech in general and what he says only a sentence or two later about the EC as a limitation on the government's power to choose its messages. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Thu, 3/26/09, Brownstein, Alan aebrownst...@ucdavis.edu wrote: From: Brownstein, Alan aebrownst...@ucdavis.edu Subject: RE: Summum To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Thursday, March 26, 2009, 10:29 AM Just a few quick points. 1. There is nothing in Justice Alito's comments that limit his remarks about government speech to passive government speech. Government can say what it wants to say actively or passively. If government has unlimited discretion in communicating its own messages and that power is not limited by the Establishment Clause, why can't government proselytize in favor of particular faiths. 2. You could substitute spending for speech in most of Alito's comments. Government has tremendous
RE: Summum
I agree with Doug that unlike political issues, we don't need to vote to determine what religion we are. But much govt speech is not about political issues and elections. A lot of government speech endorsing religion has to do with govt recognizing religious holidays and recognizing religious cultural subgroups in the community or as part of the community's history. If the EC endorsement test only prohibited government speech taking an official position on religious doctrines such as the doctrine of election or the divinity of Christ, I would not be too concerned (although I might still wonder how anyone has a liberty interest to justify such a claim under the incorporated EC). And frankly, the political process is almost always a sufficient check on govt endorsing specific religious doctrines. But, of course, much govt religious speech is of the cultural type--Christmas displays or Ten Commandment displays and the like. In other words, it is not about elections, but about recognizing we are a nation of many different communities with many different cultures, including religious subgroups and religious cultures, and religious history. Religious subgroups are part of the culture as well--if a public school may celebrate Gay Pride Week and Black History Month and Earth Day and Cinco de Mayo, there is no reason to forbid it from recognizing Christmas. Those who are offended by any of these displays can avert their eyes. There is no liberty to silence govt speech recognizing religious holidays and religious subgroups as part of a pluralistic community. Liberty is best served by protecting the right of the govt to recognize that religion is part of the culture and by protecting the right to receive govt speech of those who wish to view religious displays as part of the govt's recognition of our culture and pluralism. The heckler's veto created by the endorsement test is a liberty-restricting, not a liberty-protecting, interest. It is a right to control what kind of govt expression a willing audience can view, even though the only burden on the Pl is the burden of averting the eye. This is the kind of issue I love discussing in class. And my students understand that the solution is not as simple as saying that religious speech is different from secular speech under the First Amendment. Sometimes it is, and sometimes it isn't. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Thu, 3/26/09, Douglas Laycock layco...@umich.edu wrote: From: Douglas Laycock layco...@umich.edu Subject: RE: Summum To: religionlaw@lists.ucla.edu Date: Thursday, March 26, 2009, 2:44 PM -Inline Attachment Follows- Actually, I raised Rick's question in class today. Not with respect to Summum, which we haven't gotten to yet, but with respect to the difference between the remedy in Barnette and the remedy in Engel and Schempp. Students pretty quickly decided that government couldn't govern if it couldn't try to influence public opinion on political issues. Political issues require a collective decision; we debate and lobby and hold elections and eventually, the people or their elected representatives vote. There is no need for a collective decision on religion. We don't have to vote to determine what religion we are; we can be a lot of different religions. Election campaigns and voting about what religion we really are would be a wholly unnecessary source of conflict. And letting the self-presumed majority, or noisiest minority, seize control of the government's religion without a vote is no better. We protect individual liberty by maximizing individual choice, and with respect to religion, there is no reason to limit individual choice even to the extent of permitting government persuasion -- or government propaganda. Quoting Rick Duncan nebraskalawp...@yahoo.com: I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes. My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom. Certainly, religious equality is important, but so is cultural equality
Re: An Interesting Govt School Censorship Case
I too appreciate getting a more complete account of the facts. I forwarded the ADF press release because it contained links to the complaint and to the pictures before and after the censorship. It is wonderful to be able to show the actual pictures--both before and after the restriction--when discussing these issues in class. But I certainly agree that religious groups should have no more and no less access to public schools than other groups advertising meetings and events. Equal access means equal access. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Wed, 3/4/09, Ira (Chip) Lupu icl...@law.gwu.edu wrote: From: Ira (Chip) Lupu icl...@law.gwu.edu Subject: Re: An Interesting Govt School Censorship Case To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Wednesday, March 4, 2009, 8:29 AM I appreciate Rick's calling our attention to this case, and I deeply appreciate Allen's amplification of the historical record. I forwarded Rick's post yesterday to several students who are writing papers for me on issues related to this case, but I warned them not to take the ADF release at face value. I of course forwarded Allen's post to those students this morning. Chip Original message Date: Wed, 4 Mar 2009 10:46:42 EST From: aa...@aol.com Subject: Re: An Interesting Govt School Censorship Case To: religionlaw@lists.ucla.edu Although I'm not claiming the school was correct in this instance, there is a context to the case that the ADF press release completely leaves out. I used to be surprised at the dishonesty of these ADF press releases, but now I see them as puzzles where the challenge is to find the actual facts. From this press release, for example, you'd never know that the ACLU successfully challenged several practices in this school district that violated the Establishment Clause. The closest the press release comes to revealing that information is the two sentence paragraph: The American Civil Liberties Union previously sued the school to stop it from recognizing such events, including “See You at the Pole” and the National Day of Prayer. In May 2008, a federal judge refused to grant the ACLU’s request. Now, if you follow that link, it leads to an ADF page that, again, never mentions the school's Establishment Clause violations and describes the May 2008 result like this: “This is a win for religious freedom and, if not a total loss for the ACLU, certainly a hollow, shallow victory. Even worse, that ADF page provides a link to the ACLU complaint that starts on page 19, again cutting out the most pertinent facts. Similarly, the link to the judge's decision on that page leads to another ADF page that includes only the order, cutting out the memorandum describing in detail the school's Establishment Clause violations. The full judge's decision is included in the May 30, 2008, ACLU press release on the Wilson County case at: http://www.aclu.org/religion/schools/35742prs20080530.html Here are five pertinent paragraphs: The lawsuit, Doe v. Wilson County School System, filed by the American Civil Liberties Union of Tennessee (ACLU-TN) charged that a variety of religious activities occurring at Lakeview Elementary School in Mt. Juliet, including praying during school hours by a group of parents who then distributed fliers in classrooms informing individual students they had been prayed for, were unconstitutional. In a strongly worded 59-page decision, the Judge ruled that school officials were engaged in a systematic pattern of religious violations and that the school supported and tolerated religious activities taking place on its campus, said Hedy Weinberg, ACLU-TN Executive Director. After nearly two years of litigation, the Court ruled that Lakeview Elementary School administrators can not continue to give preferential treatment to a religious group called the Praying Parents. In the past, this religious group was given nearly unfettered access to students and faculty to promote Christianity and prayer. In finding that these activities violated the First Amendment, the Court found that the effect of the group's predominant religious purpose was to advance Christianity
Re: An Interesting Govt School Censorship Case
Chip asks a good question about whether the school could censor the See You at the Pole group from saying All those who seek salvation through Jesus are welcome on their posters. First, I doubt if this group would ever say this, because part of the group's evangelistic purpose is to attract nonbelievers to the event, in order to share the Gospel with them. But let's suppose the group wanted to say something like Jesus is the only way to salvation on their poster. Could the school censor these words because of the school's dislike of the message? It depends on what the school allows other student or parent groups to do, doesn't it? If the school allows the Environmental Student Group to say being green is the right way to be or the GLBT group to say be tolerant not homophobic, then I think the Religious Group has the same right to include their slogan on its posters. If there is concern that student speech endorsing religion will be mistaken for that of the school, a general disclaimer requirement for all student groups requiring a statement that the speech is that of the private group and not that of the school should make clear that the school does not endorse the private speaker' message. No? Just apply the same access, the same equality of expression, for all student groups, both religious and secular, and you will be on the good side of the 1A. Cheers, Rick Duncan ___ 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: An Interesting Govt School Censorship Case
Marc, I don't recall a hypo involving Go To Hell. I think if a school wants to be sure that it is not liable for violating the free speech rights of any group that is part of a public forum, it should avoid viewpoint based restrictions on speech. Any attempt to forbid Jesus is the only way slogans, while allowing Jesus is love, or stop homophobia slogans, risks being considered viewpoint discrimination in a public (or even a nonpublic) forum for student/parent groups. What is more, it is very possibly a violation of the EC for a govt school to endorse a position of disapproval for private expression of a central idea of a private religious group (not to mention the denominational discrimination that results when Jesus is love is permitted, but Jesus is salvation is not permitted). Finally, it is not enough to assert that a message like Jesus is the only way is disruptive. I think the school would need to prove that there is a substantial risk of serious disruption of school activities, and the fact that a few families find the message offensive is not sufficient to justify taking the case out of Tinker and Good News protection. If a few parents complain about the GLBT rainbow posters mentioned earlier in this thread, may a school ban the rainbow as disruptive, while permitting other student groups to display their slogans and symbols? Cheers, Rick Duncan ___ 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.
An Interesting Govt School Censorship Case
This is a very interesting recent case. A good one for class discussion. Here is the ADF press release (including before censorship and after censorship pictures: Tenn. school censors ‘God Bless the USA,’ ‘In God We Trust,’ ADF sues http://www.alliancedefensefund.org/news/story.aspx?cid=4847 ALLIANCE DEFENSE FUND NEWS RELEASE March 3, 2009 – FOR IMMEDIATE RELEASE CONTACT ADF MEDIA RELATIONS: (480) 444-0020 or www.telladf.org/pressroom ** PHOTOS LINKED BELOW ** Tenn. school censors ‘God Bless the USA,’ ‘In God We Trust’ School orders references to God and prayer covered up on posters NASHVILLE, Tenn. — Attorneys with the Alliance Defense Fund filed a lawsuit Tuesday on behalf of parents and students at Lakeview Elementary School in Wilson County after school officials ordered “God Bless the USA,” “In God We Trust,” and other phrases referencing God and prayer to be covered up on posters before they could be displayed in the school’s hallways. The posters were hand-drawn by students and their families to announce “See You at the Pole,” a voluntary, student-led prayer event held outside of class time. “Christian students shouldn’t be censored for expressing their beliefs,” said ADF Senior Counsel Nate Kellum. “It’s ridiculous as well as unconstitutional to cover up these references to God and prayer–one of which is the National Motto itself–on posters announcing a student-led activity. School officials appear to be having an allergic reaction to the ACLU’s long-term record of fear, intimidation, and disinformation, despite a previous court ruling at this very school that said students can observe these types of events on school property.” The American Civil Liberties Union previously sued the school to stop it from recognizing such events, including “See You at the Pole” and the National Day of Prayer. In May 2008, a federal judge refused to grant the ACLU’s request. Each year, students and parents affiliated with Lakeview Elementary School in Mt. Juliet have placed posters in the hallways of the school informing students of the “See You at the Pole” event. This year, each poster, made on personal time without the use of any school funds or supplies, included the disclaimer: “See You at the Pole is a student-initiated and student-led event and is not endorsed by Lakeview Elementary or Wilson County schools.” Nevertheless, the students and their parents were ordered to cover up references to God and prayer and any Scripture passages on the posters or else they could not be posted. After a school employee told the parent of one student, “You can’t hang up those posters. They have the word ‘God’ on them,” the school’s vice principal and director reinforced the policy, explaining that posters containing religious references, like “In God We Trust,” “God Bless America,” and “come and pray,” are precluded by school board policy and prohibited in the hallways as inappropriate. “The Constitution prohibits government officials from singling out religious speech for censorship, but this is exactly what Lakeview school officials did when they ordered these words to be covered,” Kellum said. ADF-allied attorney David L. Maddox is serving as local counsel in the case. • Before and after photos of one “God Bless the USA” poster • Before and after photos of one “In God We Trust” poster • Before and after posters of one “Come Pray With Us” poster • Complaint and motion for preliminary injunction with supporting brief filed in Gold v. Wilson County School Board of Education with the U.S. District Court for the Middle District of Tennessee Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.--Ben Franklin (perhaps misattributed, but still worthy of Franklin) It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. ___ 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: School District Bans religious Holiday Celebrations
How is the school's mistaken fear of avoiding EC violations a reasonable pedagogical concern under Hazelwood? Here is a hypo I use in class all the time. In an art class assignment to draw an inspirational historical character, Sally draws a picture of Jesus and is informed by her teacher that her drawing is inappropriate because it violates the EC. Is the teacher's legal ignorance about the reach of the EC a reasonable pedagogical concern? Is it reasonable? Is it even a pedagogical concern? Hazelwood is tilted in favor of the school, but the school's reasons must be both reasonable and pedagogical. For example, a rule that says we will sing the following songs (all of which happen to be secular) at the holiday concert because they teach the best music lessons is a pedagogical concern. But a rule that excludes religious music because of the school's unwarranted fear of the EC (or to appease some parents who object to religious music) is neither reasonable nor pedagogical. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Lack of sincerity
Doug makes a great point--the cost of overprotecting questionably sincere claims to free exercise is a general watering down of the liberty for valid claims. Sounds like a good law review topic to me--perhaps for a seminar paper or law review comment for a student. Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. --- On Fri, 8/1/08, Douglas Laycock [EMAIL PROTECTED] wrote: From: Douglas Laycock [EMAIL PROTECTED] Subject: Re: Lack of sincerity To: religionlaw@lists.ucla.edu Date: Friday, August 1, 2008, 1:16 PM I think Eugene is dead on about why judges concede sincerity. What's missing from his analysis is the frequent insincerity of the finding of sincerity -- and the costs of that practice. Nat Lewin, who often represents Orthodox Jewish groups in religious liberty cases, said this years ago, and he persuaded me. Judges often say that a plaintiff is sincere, or that the judge assumes he is sincere, without actually believing that he's sincere. Then, since an insincere plaintiff should lose, they make sure he loses on some other ground, usually burden or compelling interest -- even if they have to interpret those issues in ways that undermine the whole purpose of the statute or constitutional provision they claim to be enforcing. And so we get bad precedents on burden and compelling interest, created for the insincere plaintiff but applicable to all plaintiffs, sincere and insincere alilke. Of course this is easy to suspect and hard to prove. But I think it goes on. ___ 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: Unfavorable feelings towards ideologies
I appreciate Eugene's distinction between hating the sin and hating the sinner, but it is very easy to overlook this distinction when one is creating a classroom atmosphere or even grading papers. If a professor expresses in class his disdain for homophobes or for fundamentalists or for persons who base their worldviews on religious superstition as opposed to secular first principles, does the professor not create a hostile and unwelcoming environment for students who belong to conservative religious faiths. Is this consistent with all the rhetoric we hear in Academe about how intellectual diversity is essential to a rich educational experience for all our students? Should support for same-sex marriage or domestic partnerships be a condition for successful completion of a degree in social work? Should it be relevant to your grade on a paper that focuses on family policy and law? My son is a senior in high school (a national merit qualifier), and we are not even considering secular colleges for his education. Why go to a place where you are hated? But notice this is all the more reason why state scholarship programs should not exclude religious colleges or pervasively sectarian religious colleges from participating. Separate and equal is one thing; separate and unequal is another thing indeed. Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Choose the right car based on your needs. Check out Yahoo! Autos new Car Finder tool.___ 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: Unfavorable feelings towards ideologies
Eugene: Actually, the article did at least suggest that where there is so much smoke, there must be at least a little fire. Here is another excerpt: Other prominent voices from the academy have suggested that the anti-evangelical bias does not likely translate into acts of classroom discrimination. Tobin intends to test that claim with a subsequent survey of 3,500 students in the coming academic year. My guess: You can't have this much smoke without some fire, he said. French can readily testify to that. Before the Alliance Defense Fund filed a federal lawsuit last year, Georgia Tech University maintained speech codes forbidding any student or campus group from making comments on homosexuality that someone might subjectively deem offensive. What's more, students serving as resident advisors were required to undergo diversity training in which moral positions against homosexual behavior were vilified and compared to justifying slavery with the Bible. In another landmark case at Missouri State University, junior Emily Brooker objected to an assignment in which students were asked to write their state legislators and urge support for adoptions by same-sex couples. The evangelical social-work major was promptly hauled before a faculty panel and charged with maintaining an insufficient commitment to diversity. The panel grilled Brooker on her religious views without her parents present, convicted her of discrimination against gays, and informed her that to graduate she needed to lessen the gap between her own values and the values of the social-work profession. The Alliance Defense Fund sued Missouri State on Brooker's behalf, pressuring the university into dropping the discrimination charges and paying for Brooker to attend graduate school. An independent investigation into the incident found such widespread intellectual bullying throughout the university's school of social work that investigators recommended shutting the program down and replacing the entire faculty. Many Christian students have provided me with anecdotal evidence about the hostile and unwelcoming atmosphere for believers on campus. And, of course, the difficulty CLS has experienced in being excluded from many tolerant law schools is also documented. It is enough for me to warn my own children away from secular colleges (particularly from elite secular colleges). Rick Volokh, Eugene [EMAIL PROTECTED] wrote: I appreciate Rick's point, and I agree that professors ought to be careful in class -- and certainly in grading exams -- about expressing disdain for many ideologies, whether religious or otherwise. In class, a few ideologies, I think, can rightly be disdained; but there should be a substantial zone in which the professor may express disagreement but should do so in a way that fosters serious debate. Certainly a class discussion of same-sex marriage won't go far if the professor calls one view homophobic (or the other sodomitic, for that matter). Likewise, a class discussion of economics won't go far if the professor describes one mainstream view as countenancing the rape of the working class. But as I understand it the survey (at least as Rick's post quoted it) did not try to capture how professors behave in class -- whether they express their views constructively and politely, for instance. Rather, it meant to capture what professors believe, and whom they have unfavorable views towards. Why is it so shocking that professors would have unfavorable views (not necessarily hatred but unfavorable views) towards, say, evangelicals, any more than that they would have unfavorable views towards Socialists or free-market advocates or libertarians? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Tuesday, August 14, 2007 9:37 AM To: Law Religion issues for Law Academics Subject: Re: Unfavorable feelings towards ideologies I appreciate Eugene's distinction between hating the sin and hating the sinner, but it is very easy to overlook this distinction when one is creating a classroom atmosphere or even grading papers. If a professor expresses in class his disdain for homophobes or for fundamentalists or for persons who base their worldviews on religious superstition as opposed to secular first principles, does the professor not create a hostile and unwelcoming environment for students who belong to conservative religious faiths. Is this consistent with all the rhetoric we hear in Academe about how intellectual diversity is essential to a rich educational experience for all our students? Should support for same-sex marriage or domestic partnerships be a condition for successful completion of a degree in social work? Should it be relevant to your grade on a paper that focuses on family policy and law? My son is a senior in high school (a national merit qualifier), and we are not even considering
RE: A Hypo I Am Using in Class
Brownstein, Alan [EMAIL PROTECTED] wrote: Thus, I might certainly be offended by state expression that endorses moral or political positions that I reject (such as expression that endorses welfare policies that provide inadequate health care to the children of indigent families) but I view that issue as one that is distinct from state expression that endorses the belief that Jesus Christ is the Son of G-d and condemns those who believe otherwise. I think the real difference between Alan's and my views on the issue of a passive nativity scene is that I simply can't understand how anyone can see a nativity display at Christmas as anything other than a recognition that some in the community are celebrating a holiday that has great meaning to them. No one is condemning those who believe otherwise nor is there any reason to see a passive nativity display as endorsing any particular statement about Christ except that a religious subgroup in the community is having a special day on December 25 (His designated birthday). And since, under the Ct's own theory of incorporation, the EC applies to the states only as a fundamental individual liberty, then surely Justice Thomas is correct that a real coercion test--one that requires a truly substantial burden on liberty--is the one test that fits with the view that the EC applies against the states only to the extent that it protects individual liberty against coercive burdens or deprivations. No one's liberty is burdened by a passive Christmas display; indeed, when the EC is used to enjoin such a display, the EC becomes an anti-liberty heckler's veto used to deprive a willing audience of the liberty to view a display they wish to view (thereby sending a message of real condemnation to those whose liberty is taken to satisfy the demands of those who don't like the display in a public square that includes so many other displays, including some--such as the gay pride--stop homophobia display--that are very provocative and hurtful to some). The move from O'Connor to Alito may well spell the end of the endorsement test and the censorship power that it delegates to those who dislike including religious displays as part of a public culture that includes everyone else. I certainly hope so, not because I wish to condemn anyone by celebrating Christmas, but because I crave a public culture that is diverse and open to both secular and religious subgroups in the community. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Take the Internet to Go: Yahoo!Go puts the Internet in your pocket: mail, news, photos 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.
RE: Victory for prayer in Jesus name?
I agree with Christopher that the complaint about lack of injury in EC cases goes more to substance than to standing. I am writing an article on Justice Thomas and partial incorporation of the EC (EC incorporated not as a structural limitation on the power of state govt, but only to the extent that it protects individual liberty interests against substantial burdens or deprivations) and here is an excerpt from a working draft of my article that relates to some of what we have been discussing lately (footnotes omitted): Although Justice OConnor has tried to explain the endorsement test as a rule designed to protect an individuals right not to feel like an outsider or a disfavored member of the political community, this view amounts to nothing more than an unconvincing attempt to portray a structural limitation on state government speech as a spurious right to censor public displays that one finds offensive. Why should we think that liberty under the Establishment Clause includes the right to control which holidays state governments may celebrate and which ideas state governments may express? This is an extraordinary liberty, unlike any other liberty incorporated by the Fourteenth Amendment. For example, no one would argue that the Free Exercise Clause protects a persons right to censor public displays that offend his sincerely held religious beliefs. Thus, A does not have a First Amendment right to enjoin a gay pride display in a public park because it offends his religious beliefs and sends a message to him that he is an outsider and a disfavored member of the political community. As remedy is to avoid the offensive display or to avert his eye when walking past it. Similarly, B should not have a First Amendment right to enjoin a Christmas display that she finds offensive. The incorporated Establishment Clause protects individual liberty from substantial burdens imposed by state action, but there is no liberty to not be offended by government speech in the public square. Indeed, a rule cleansing religious displays from the public square actually promotes the evil it seeks to avoid, because by singling out religious displays for exclusion from the public culture the Court is sending a message that people of faith are outsiders, disfavored members of the political community whose holidays and ideas may not be recognized and celebrated in a public square that includes everyone else. As Steven Smith argues, if religious symbols and holidays are cleansed from the public square, many religious citizens may feel that their most central values and concernsand thus, in an important sense, they themselveshave been excluded from a public culture devoted purely to secular concerns. In order to succeed in an Establishment Clause case brought against state or local government, the claimant should be required to demonstrate that the challenged law or policy substantially burdens an individual liberty protected under the Clause. The kind of psychic harm one experiences when government endorses a controversial idea or symbol in the public schools or upon the public square does not impose a substantial burden on an incorporated Establishment Clause liberty, unless a dissenter is compelled to affirm his belief in the offensive idea. If A has no right to forbid the teaching of evolution in the public schools because that lesson is offensive to his religious beliefs protected under the Free Exercise Clause, then B has no right to forbid the teaching of intelligent design in the public schools because that lesson is offensive to his liberty protected under the Establishment Clause. Since the structural component of the Establishment Clause limiting the power of the states to endorse or advance religion is not subject to incorporation, the merits and wisdom of education in the public schools are for school boards and state legislatorsnot federal judgesto determine, so long as individual liberty under the First Amendment is not substantially burdened. That is only a small excerpt of my piece on Thomas and partial incorporation, but suffice it to say that I believe his views about incorporating the EC only to the extent that it protects individual liberty against substantial deprivations are very powerful and convincing. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Park yourself in front of a world of choices in alternative vehicles. Visit the Yahoo! Auto Green Center
A Hypo I Am Using in Class
Here is a hypo I am asking the students in my 1A class to think about today: Imagine a city with two displays in the public square one December: a nativity scene (without plastic elves or talking wishing wells) in one public park, and a gay pride--stop homophobia display in a second public park. Both displays provoke complaints--the nativity scene by an atheist such as Mr. Newdow who, when he sees the nativity display, is offended by the religious nature of the display (and feels like an outsider, not a full member of the political community); and the gay pride display by an Orthodox Jew whose religious conscience is offended when he sees that display and also feels like an unwelcome outsider and not a respected member of the political community. The city, wishing to avoid controversy and to offend no one, removes both displays. Supporters of the gay pride display sue claiming that they are a willing audience for the message of gay pride and thus, under Pico and the Free Speech Clause, have a right to receive the message expressed by the gay pride display without censorship imposed by the city to satisfy the demands of hecklers and others who don't like the message. Do the Pls have a good claim? Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Park yourself in front of a world of choices in alternative vehicles. Visit the Yahoo! Auto Green Center.___ 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 Hypo I Am Using in Class
I agree with Doug that the gay pride Pls should lose their free speech case, but I find Pico a much closer precedent (assuming the plurality opinion represents the law). There is clearly no 1A right to insist that govt put up a gay pride display in the first instance. But removing the gay pride display under politcal pressure from those who disagree with the message raises the same issues seen as dispositive by the plurality in Pico--there is a right to receive information and ideas and govt may not exercise its discretion over removal of books in order to supress unpopular ideas. As Pico puts it: If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioers' decision, then petitioners have exercised their discretion in violation of the Constitution. Of course, Pico is only a plurality opinion, and I personally believe that it was wrongly decided, but many others think it is correct; and if it is a correct application of the Free Speech right to receive unpopular ideas, then it seems to apply to the removal of the gay pride display to appease critics who disagreed with the message. No? Rick Duncan Douglas Laycock [EMAIL PROTECTED] wrote: The gay pride folks do not have a claim. The Free Speech Clause creates no right to force someone else to say something -- not even if that someone is the government. Pico was a very narrow holding. It involved a library, and surely not every book in the library is government speech or the government's own message. It did not involve purchase of books for the library. The opinions appear to be confined to removing books from the library because of hostility to their content, which to some observers looks more like censorship of existing private speech than failure to speak in the government's own voice. And of course who knows whether the current Court would accept Pico as a preceent. No one has a right to force someone else, even the government, Quoting Rick Duncan [EMAIL PROTECTED]: Here is a hypo I am asking the students in my 1A class to think about today: Imagine a city with two displays in the public square one December: a nativity scene (without plastic elves or talking wishing wells) in one public park, and a gay pride--stop homophobia display in a second public park. Both displays provoke complaints--the nativity scene by an atheist such as Mr. Newdow who, when he sees the nativity display, is offended by the religious nature of the display (and feels like an outsider, not a full member of the political community); and the gay pride display by an Orthodox Jew whose religious conscience is offended when he sees that display and also feels like an unwelcome outsider and not a respected member of the political community. The city, wishing to avoid controversy and to offend no one, removes both displays. Supporters of the gay pride display sue claiming that they are a willing audience for the message of gay pride and thus, under Pico and the Free Speech Clause, have a right to receive the message expressed by the gay pride display without censorship imposed by the city to satisfy the demands of hecklers and others who don't like the message. Do the Pls have a good claim? Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Park yourself in front of a world of choices in alternative vehicles. Visit the Yahoo! Auto Green Center. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion
RE: A Hypo I Am Using in Class
Brownstein, Alan [EMAIL PROTECTED] wrote:
I think that Rick is right that the Citys action would not be
unconstitutional under a true coercion test and that is why the adoption of a
coercion test by the court is so problematic. It would eliminate any
constitutional commitment to religious equality in government expression and
permit the resources of the state to be used to promote favored faiths and
denigrate others.
Of course, averting ones eyes and taking a few steps out of the way in no
way shields the members of minority faiths from the message the state is
communicating to them and about them with its decision. They are told that
their religious beliefs are not worthy of state recognition while the beliefs
of other community members are worthy of such respect.
Of course, this is also true of persons whose religious sensibilities are
offended by the gay pride--stop homophobia governmental display in the park.
They are being told that their religious (and/or deeply held secular) beliefs
about homosexuality are not worthy of state recognition (indeed, the state is
saying their views are a disease that must be stopped) while the beliefs of
their ideological and religious opponents are worthy of respect.
Yet, opponents of the gay pride display (or of a secular pledge of
allegiance) are told by the Ct that their rights are respected so long as they
are not actually coerced into affirming the objectionable message. I like a
true coercion test. The interior decorating of the public square should be
decided in the political process, not by an unelected Court sitting in a
federal enclave.
Rick Duncan
v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);}
w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}
I think that Rick is right that the Citys action would not be
unconstitutional under a true coercion test and that is why the adoption of a
coercion test by the court is so problematic. It would eliminate any
constitutional commitment to religious equality in government expression and
permit the resources of the state to be used to promote favored faiths and
denigrate others.
Of course, averting ones eyes and taking a few steps out of the way in no
way shields the members of minority faiths from the message the state is
communicating to them and about them with its decision. They are told that
their religious beliefs are not worthy of state recognition while the beliefs
of other community members are worthy of such respect.
Alan Brownstein
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Wednesday, August 01, 2007 1:29 PM
To: Law Religion issues for Law Academics
Subject: RE: A Hypo I Am Using in Class
Alan, I think if we apply a real coercion test under the EC, then critics
of the Nativity display lose because they may avert their eye and are not
coerced into particpating in any kind of religious expression or celebration.
If it amounts to coercion for the govt to decline to put up the dissenter's
message next to the govt's message, then the govt would have to display a KKK
banner next to its Martin Luther King display and an America is evil banner
next to its fourth of July banner. No?
No passive governmental display is coercive, and thus a coercion test does
not require some kind of equal display requirement for the public square. If
you disagree with the banner, you can avert your eye or walk a few steps out of
your way to avoid it. That is clearly true under the Fr Sp Cl, and it should be
no less true under the EC.
Rick Duncan
Brownstein, Alan [EMAIL PROTECTED] wrote:
I think Doug is clearly correct that the gay pride plaintiffs do not have
a viable constitutional claim. I think a better hypo that Rick might consider
for his class is this: Suppose the Court moves in the direction of rejecting an
endorsement test and adopts some kind of coercion test. A City erects a stand
alone nativity scene in front of city hall. Members of other faith communities
in town ask to have displays of comparable size expressing their religious
beliefs placed in comparable locations on public land. The City denies their
requests. Do the members of these faith communities have a viable
constitutional claim? What about the atheist who wants the City to set up a
comparable display denying the existence of G-d? What do you think, Rick?
Alan Brownstein
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
Eugene
Sent: Wednesday, August 01, 2007 11:35 AM
To: Law Religion issues for Law Academics
Subject: RE: A Hypo I Am Using in Class
Note also that Pico had no majority opinion even supporting the
proposition that libraries may not remove books based on viewpoint. Four
Justices
Re: Colorado Christian University Case: EC Compelling Interest
Okay, one last time for me too. Marty has made his point very clearly; I simply think his argument is not persuasive, nor does it deal with the Colorado statute that determines which religious colleges may participate in Colorado's scholarship program for low-income students and which religious colleges are excluded. The Colorado legislature has adopted a muti-part definition of pervasively sectarian to decide which religious colleges may participate in the scholarship plan and which may not. Some religious schools, although religious and even affiliated with a particular religious denomination, are funded because they satisfy that multi-part test and other religious colleges are excluded because they fail that multi-part test. The dist ct held (I believe correctly) that this religious classification constitutes denominational discrimination. This strikes at the core of the EC because some religious colleges are being funded and others are denied funds. The non-pervasively sectarian colleges are not secular colleges (and I doubt they would claim to be). They are religious colleges that have organized themselves in ways which satisfy that multi-part test (e.g. their funds do not come primarily or predominantly from sources advocating a particular religion). So, I guess, Marty and I will have to agree to disagree. I believe the dist ct was correct in finding denominational discrimination (although incorrect in holding that Colorado has a compelling interest which justifies denominational discrimination). Marty thinks the dist ct erred in finding denominational discrimination. Let's see how this one sorts itself out in the ct of appeals (and perhaps at the SCt). Rick Duncan Marty Lederman [EMAIL PROTECTED] wrote: OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point. Let's put it this way: If the Colorado legislature had never enacted a law mentioning pervasively sectarian schools, the result in this case would be exactly the same. The Colorado Constitution, according to the Court, expressly prohibits the use of public funds for religious education -- period, in all schools. (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.) Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services. So CCU could never receive any aid -- even if no statute had ever been enacted. And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education. So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination. There are, by stipulation, no such cases at CCU. Denominational discrimination has nothing to do with it. One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs. That's fair -- but it would run up against Locke in the context of indirect funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs. If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Thursday, July 26, 2007 11:27 AM Subject: RE: Colorado Christian University Case: EC Compelling Interest Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges
RE: Colorado Christian University Case: EC Compelling Interest
Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges constitutes denominational discrimination. Imagine a Colorado zoning law that limited special use permits in a particular zone to colleges or universities that are not pervasively sectarian? Surely, this law violates the EC under Larson. Moreover, whatever the EC may once have said about indirect funding of pervasively sectarian schools, it is now completely clear that the EC permits indirect funding of all religious colleges and that the EC continues to prohibit denominational discrimination. In other words, the existing EC no longer speaks with a forked tongue on this issue--states may include all religious colleges in indirect scholarship programs and states may not engage in denominational discrimination. Funding issues are always difficult under the EC, but unequal funding along denominational lines continues to strike at the heart of the EC's proscription of religious establishments. If Colorado wishes to withhold funding from religious education, it should withhold funding from all religious colleges and cease its practice of discriminatory religious classifications. Or, it should accept the SCt's modern notion that a neutral private choice scholarship program funds private educational choices for everyone and does not advance or endorse any religion. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Looking for a deal? Find great prices on flights and hotels with Yahoo! FareChase.___ 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: Colorado Christian University Case: EC Compelling Interest
Just a brief response to Marty. 1.The tuition assistance programs in the case are Witters-Zelman-Davey indirect, private choice programs. So there is no doubt that the EC permits Colorado to include all religious colleges, including pervasively sectarian religious colleges, in the program. 2. Not only does the EC permit Colorado to include pervasively sectarian schools in the scholarship program, the EC also forbids Colrado from engaging in denominational discrimination. 3. Colrado has indeed engaged in intentional discrimination by explicitly excluding some religious colleges and including other religious colleges. I quote from the district ct's opinion in the case: The term pervasively sectarian is statutorily defined in C.R.S. § 23-3.5.105. That definition is supplied in the negative: an institution is not pervasively sectarian if it meets six criteria: (i) the faculty and students are not exclusively of one religious persuasion; (ii) there is no required attendance at religious convocations or services; (iii) there is a strong commitment to principles of academic freedom; (iv) there are no required courses in religion or theology that tend to indoctrinate or proselytize; (v) the governing board does not reflect, nor is the membership limited to, persons of any particular religion; and (vi) funds do not come primarily or predominantly from sources advocating a particular religion. 4. The dist ct correctly viewed this as denominational discrimination: In Larson, the state of Minnesota amended its registration and reporting requirements for charities engaging in monetary solicitation by partially revoking a blanket exemption for religious organizations. Under the new scheme, religious organizations that received more than half of their total contributions from members or affiliated organizations were required to comply with the registration and reporting requirements. The Supreme Court found that the new rule impermissibly distinguished between well-established churches on the one hand, and churches which are new and lacking in a constituency on the other, or between churches who, as a matter of policy or doctrine, favor public solicitation over general reliance on financial support from members. Id. at 246 n. 23. Explaining that the Lemon test was intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions, id. at 252 (footnote omitted), the Court instead analyzed the constitutionality of the statute by simply applying the strict scrutiny test, requiring that the statutory classification be justified by a compelling governmental interest and be closely fitted to further that interest. Id. at 247. Colorado's tuition assistance programs similarly differentiate among sectarian institutions. It gives tuition assistance to those which segregate religious indoctrination from secular education, and denies assistance to those which, by policy or doctrine, freely mix the two. In such situations, Larson directs that the Court analyze CCU's Establishment Clause claim by applying the strict scrutiny test. 5. I can't accept that Colrado's antiestablishment interest in not funding scholarships for students attending pervasively sectarian religious colleges justifies a violation of what the Supreme Court has called the clearest command of the Establishment Clause. Colorado may exclude all religious colleges from its scholarship program and thereby follow its own anti-establishment rules without violating the principle of denominational equality under the federal EC. We would still have a Locke v. Davey Free Ex issue, but the Larson problem would go away. But so long as Colorado insists on providing scholarships for students who attend certain religious colleges, while denying scholarships to students who attend other religious colleges, it will be in flagrant violation of the EC Larson. Cheers, Rick Duncan [EMAIL PROTECTED] wrote: Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU
EC Compelling Interest: Right to Receive Speech as Compelling
I wrote: In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it extraordinarily important? Doug Laycock responded: The trouble with Rick Duncan's examples is that the alleged compelling interests are simply negations of the clause. Folks here really really want government support for their religion, and that desire is a compelling interest that justifies an exception to the rule against government support for religion. I think the state interests I proposed are more than mere negations of the EC; rather they are independent First Amendment rights recognized by a decisive plurality of the Sct in Pico. In Pico, we had a case of govt sponsored speech (books in a public school library) that some in the community didn't like and complained about. The govt removed some of the books to satisfy the complainers. The Pico plurality held that the Free Sp Cl includes a right of a willing audience to receive govt speech in the form of books in the school library. Now maybe Pico is wrong and there is no such right to receive. But if Pico is right, then what we have, when a Nativity display is challenged undeer the EC, is a viewpoint based attack on the right to receive govt sponsored expression (not govt support for religion, but a govt sponsored message recognizing a holiday that some in the community are celebrating). The problem with the EC is that it is not really a liberty interest like most other incorporated rights. Rather, it is a structural limitation on the power of state and local govt that somehow got incorporated by the Due Process Clause in Everson. As a structural limitation on govt power, there is nothing to balance once something is found to amount to an endorsement of religion. Govt simply lacks power to endorse religion. There is no compelling interest test, no balancing; govt is without power to endorse religion and the case is over. Period. I think this makes a lot of sense given the caselaw, and explains why the Ct never (hardly ever) even discusses balancing and possible justification in EC cases. They are not cases in which a liberty interest conflicts with govt power; rather, they are cases in which a structural limitation on govt power absolutely denies govt the ability to endorse religion even when there would otherwise be a compellingly important interest--under the Fr Sp Cl--of a willing audience to receive govt speech recognizing the origins of the Christmas holiday. Any further thoughts? Or has this topic run its course? Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Sick sense of humor? Visit Yahoo! TV's Comedy with an Edge to see what's on, when. ___ 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.
RColorado Christian University Case: EC Compelling Interest
Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ___ 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: Colorado Christian University Case: EC Compelling Interest
Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund the CCU religious inculcation (per Zelman), but need not do so (per Locke). Now, of course the new Court might very well overrule the entire Mitchell line of cases *and* Locke. But until it does so, this decision strikes me as compelled by the case law. -- Original message -- From: Rick Duncan Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RColorado Christian University Case: EC Compelling Interest Date: Tue, 24 Jul 2007 15:16:44 + Doug Laycock writes: I
RE: EC Compelling Interest
Of course, one of the problems with a compelling interest test is no one really knows what interests are extraordinarily important and which are less so. And different folks may have different scales of importance. In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it extraordinarily important? I don't know. I would at least like to see the Ct apply the compelling interest test and explain why this speech/non-censorship interest is not important. Alternatively, the compelling interest in such cases might be the govt's strong interest in diversity and equal regard for religious citizens in a pluralistic public square. If all sorts of secular holidays are celebrated in the public square (gay pride, cinco de mayo, Columbus Day, pork producers day, etc), many people of faith might well feel disrespected and deeply injured by being the only subgroups in the community whose holidays are not celebrated. And what about the compelling interest of school officials to decide which curriculum best meets the needs of students in the public schools trumping EC attacks on ID, music curriculum, and the Pledge of Allegiance? Just some thoughts. I don't think these cases are as easy as Eugene seems to think they are, because what may not seem important to some may seem very important to others. And the fact that the Ct doesn't even play the game suggests that maybe the reason is that there is no game to be played because the EC applies as a categorical rule without a balancing test. Rick Duncan Volokh, Eugene [EMAIL PROTECTED] wrote: Rick: You might well be right, but it's hard to tell without some cases that test our sense of this, by coming out differently under strict scrutiny than under per se invalidation. It's hard to see a compelling interest behind government holiday displays -- one can surely argue that endorsement shouldn't be seen as implicating the Establishment Clause, but it's harder to say that it does implicate it but that it's just extraordinarily important to allow it. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 4:45 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest When the Ct strikes down a law under the EC, it usually declares the law unconstitutional w/out any type of scrutiny. Why doesn't the Ct at least go through the motions of applying the compelling interest test? Is the EC an absolute, categorical rule prohibiting laws that establish religion? Take the Nativity display in Allegheny County--should the county govt argue that it has a compelling interest in recognizing that many persons are willing recipients of the county's speech recognizing that some of its citizens are celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is not in any way restricted by a passive holiday display, have the right to censor a display that means a great deal to others in the community who wish to view the display? Why not at least analyze the compelling interest test in cases like these? I have always assumed that the EC here is a structural limitation on the power of govt, one that denies govt the power to endorse religion even if it has good reasons to put up the display. Am I wrong? Rick Duncan Volokh, Eugene wrote: Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable). Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact). The tough question is to come up with a concrete example of where some compelling interest would indeed be in play. Rick, what examples did you have in mind? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 12:07 PM To: Law Religion issues for Law Academics Subject: EC Compelling Interest A question for this august body of learned friends: When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it? Does it matter what kind of EC violation the state has committed? Cheers, Rick
RE: EC Compelling Interest
Okay, Doug, then how do you decide the Colorado Christian University case in which the state has engaged in denominational discrimination against pervasively sectarian schools, but claims to have a state anti-establishment compelling interest (in not funding sectarian schools) that trumps the federal EC violation? Is this a case in which the state compelling interest in not funding certain religious colleges is merely a disagreement with the clearest command of the federal EC prohibiting denominational discrimination? Rick Duncan Douglas Laycock [EMAIL PROTECTED] wrote: I agree with David. I very briefly floated this idea as deserving exploration with respect to inner city schools sometime long ago -- in 1981 I think, in Columbia. I don't think the Court ever entertained the idea for a minute in the Lemon era, and of course what is happening now is that they are moving in the direction of saying that aid to these programs does not violate the Establishment Clause even prima facie, so the issue of justification cannot arise. The trouble with Rick Duncan's examples is that the alleged compelling interests are simply negations of the clause. Folks here really really want government support for their religion, and that desire is a compelling interest that justifies an exception to the rule against government support for religion. There are obvious analogies in Mississippi in 1965, and among some affirmative action advocates today. Compelling interests don't arise out of disagreement with the Court's interpretation of the underlying right. Compelling interests generally arise out of some cross cutting need that arguably justifies an exception at the point of its intersection with the constitutional right. Occasionally the area of intersection is pretty large, but it cannot just be that we really really don't like the underlying right as interpreted by the Court. It should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them, the Court said in Brown II. That aspiration has not actually been achieved, but we can hardly make it doctrine that disagreement overrides constitutional rights. Quoting Saperstein, David (RAC) [EMAIL PROTECTED]: I would assume that the area of EC issues that is most tempting to think of in terms of compelling interest has to do with government expenditures not speech. If e.g. studies actually showed that religious based substance treatment programs were decisively more effective than non-religious programs, is there a compelling government interest in addressing effectively the drug epidemic or in providing effective (often life-saving) health treatments for eligible patients that might justify funding to expand such programs? In the case of damage or destruction from natural catastrophes, might a compelling interest test justify direct payments to rebuild churches? Might the compelling interest in protecting more likely terrorism targets e.g. NY City based synagogues, churches, mosques justify direct government funding for enhancing security? As I assume most of you know, I write as someone who in the main opposes such funding as unconstitutional and few courts have taken up this line but the funding arena is where I find folks falling back intuitively on this kind of thinking. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, July 23, 2007 7:06 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest Isn't the whole point of the EC that the government cannot be permitted to be a willing speaker when it comes to God-talk? And isn't this the reason why a per se analysis is more consistent with that purpose than any compelling interest test might be? The EC contains its own compelling interest, doesn't it? And isn't that compelling interest essentially freedom FROM religion? (Why, for the sake of discussion, should X's freedom OF religion trump Y's freedom FROM religion? And isn't it true, therefore, that large claims of freedom OF religion, of Free Exercise, should be viewed with a great deal of suspicion especially given the categorical nature of the EC, of freedom FROM religion, whereas there is no comparable categorical freedom OF religion? Of course my Protestant Empire thesis provides a useful way of assessing both freedom FROM and freedom OF religion claims. I have another Protestant Empire piece coming out shortly which looks at this problem in part through the lens or prism of proselytizing in the public schools and elsewhere.) Isn't it also true, therefore, that to characterize the objection to the display as a heckler's veto begs the question to be decided? If the government cannot be a willing speaker then the censor is not the heckler but is the EC itself
Re: EC Compelling Interest
Marty: I think you should read the CCU decision and its facts a bit more carefully. What is going on in Colorado does indeed amount to denominational discrimination within the meaning of Larson. And the scholarship program is indeed a Zelman-like private choice program. Unlike Davey, which did include pervasively sectarian colleges within the program and excluded only devotional theology majors at any school, Colorado allows scholarship funds to be used at some religious colleges but not at others. Thus, there is no need for play in the joints between what the EC permits and the FEC requires, because the EC forbids denominational discrimination as the clearest command of the Clause. Rick Duncan [EMAIL PROTECTED] wrote: I've barely glanced at the decision, but from what I've quickly read, I don't think it's fair to call what Colorado has done denominational discrimination, notwithstanding what the court wrote. It's simply a prohibition on funding religious education itself, of *any* denomination. Pervasively sectarian schools are automatically ineligible not because they are of a particular denomination, but because (by definition) the funds would *necessarily* fund religious teaching (indoctrination) in such schools. It's not clear to me whether any of the aid programs at issue here are Zelman-like voucher programs. They don't appear to be. But if any of them were, the only question would be whether the logic of Locke v. Davey applies here (I think it probably does). If, instead, some of the aid programs at issue involve direct aid, as in Mitchell v. Helms, then the aid itself cannot go to CCU *under the federal Constitution,* because under the governing O'Connor opinion (and even under the Thomas plurality), direct *financial* aid may not be used for inculcation of religious truth. -- Original message -- From: Rick Duncan Art: Colorado has a college scholarship program that can be used to attend any public or private college including non-pervasively sectarian religious colleges but excluding pervasively sectarian religious colleges. In other words, students who attend non-pervasively sectarian (but nevertheless sectarian) religious colleges receive funding but those who attend pervasively sectarian colleges may not use their scholarships. The dist ct held that this amounts to denominational discrimination contrary to Larson and the clearest command of the EC, but that the state's interest in not funding pervasively sectarian education was a compelling interest that trumped the federal EC. Can this decision be correct? Does Colorado's interest in discriminating among religious colleges really trump the clearest command of the EC forbidding such denominational discrimination? Or, to paraphrase Doug Laycock, is this nothing more than the state saying we disagree with the EC as it has been interpreted by the SCt? Rick Duncan [EMAIL PROTECTED] wrote: It seems to me that if a state says, we'll give grants to any social service agency that operates a 24/7 pregnancy prevention hotline, and denomination X says we'd like a grant, but our faith forbids us from operating anything on the sabbath, and the state says too bad, then, that's not what the Constitution forbids as denominational discrimination. Some denominations just can't qualify for the terms of the grant. I don't know the Colorado Christian University case but it sounds like the same sort of thing. Art Spitzer In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes: Okay, Doug, then how do you decide the Colorado Christian University case in which the state has engaged in denominational discrimination against pervasively sectarian schools, but claims to have a state anti-establishment compelling interest (in not funding sectarian schools) that trumps the federal EC violation? Is this a case in which the state compelling interest in not funding certain religious colleges is merely a disagreement with the clearest command of the federal EC prohibiting denominational discrimination? ** Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour ___ 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 It's a funny thing about us human beings: not many of us
EC Compelling Interest
A question for this august body of learned friends: When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it? Does it matter what kind of EC violation the state has committed? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Shape Yahoo! in your own image. Join our Network Research Panel today!___ 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: EC Compelling Interest
Well, could you argue that supporting a quality education for all students is a compelling interest that justifies direct funding of all schools, including religious schools? Or, as in a recent federal district ct case in Colorado, does compliance with a state constitution barring funding sectarian education serve as a compelling justification for denominational discrimination including non-pervasively sectarian religious colleges but excluding pervasively sectarian religious colleges? Rick Duncan Volokh, Eugene [EMAIL PROTECTED] wrote: Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable). Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact). The tough question is to come up with a concrete example of where some compelling interest would indeed be in play. Rick, what examples did you have in mind? Eugene - From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 12:07 PM To: Law Religion issues for Law Academics Subject: EC Compelling Interest A question for this august body of learned friends: When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it? Does it matter what kind of EC violation the state has committed? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Shape Yahoo! in your own image. Join our Network Research Panel today! ___ 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 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Get the Yahoo! toolbar and be alerted to new email wherever you're surfing. ___ 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: EC Compelling Interest
When the Ct strikes down a law under the EC, it usually declares the law unconstitutional w/out any type of scrutiny. Why doesn't the Ct at least go through the motions of applying the compelling interest test? Is the EC an absolute, categorical rule prohibiting laws that establish religion? Take the Nativity display in Allegheny County--should the county govt argue that it has a compelling interest in recognizing that many persons are willing recipients of the county's speech recognizing that some of its citizens are celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is not in any way restricted by a passive holiday display, have the right to censor a display that means a great deal to others in the community who wish to view the display? Why not at least analyze the compelling interest test in cases like these? I have always assumed that the EC here is a structural limitation on the power of govt, one that denies govt the power to endorse religion even if it has good reasons to put up the display. Am I wrong? Rick Duncan Volokh, Eugene [EMAIL PROTECTED] wrote: Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable). Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact). The tough question is to come up with a concrete example of where some compelling interest would indeed be in play. Rick, what examples did you have in mind? Eugene - From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 12:07 PM To: Law Religion issues for Law Academics Subject: EC Compelling Interest A question for this august body of learned friends: When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it? Does it matter what kind of EC violation the state has committed? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Shape Yahoo! in your own image. Join our Network Research Panel today! ___ 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 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Got a little couch potato? Check out fun summer activities for kids.___ 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: EC Compelling Interest
Art's example is a good one, but I have usually thought of military chaplins as involving a special situation pursuant to which the EC is not violated (as opposed to a situation in which the EC is violated, but justified by a compelling interest in protecting the spiritual needs of military forces). Is there really a compelling interest in supplying chaplins for hundreds of thousands of military stationed in California, or New Jersey, or Virginia, or Nebraska? See also Chambers (not a compelling interest for legislative prayer case, but rather a special rule involving a special situation which, due to history tradition, does not trigger the EC). Rick Duncan [EMAIL PROTECTED] wrote: How about hiring chaplains for the armed forces? In a message dated 7/22/07 5:34:54 PM, [EMAIL PROTECTED] writes: The tough question is to come up with a concrete example of where some compelling interest would indeed be in play. Rick, what examples did you have in mind? ** Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour ___ 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 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Looking for a deal? Find great prices on flights and hotels with Yahoo! FareChase.___ 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.
Jesus Costume Banned by Public School
but Nero is okay! Here is a press release about a new case from ADF: Pa. school censors boy wearing Jesus costume during Halloween parade and party Principal decreed that boy must remove his crown of thorns and suggested he pretend to be a Roman emperor instead Wednesday, February 21, 2007, 11:12 AM (MST) | ADF Media Relations | 480-444-0020 PHILADELPHIA Attorneys with the Alliance Defense Fund filed a complaint Tuesday on behalf of a 10-year-old boy who was prohibited by his school principal from wearing a Jesus costume for the schools Halloween parade and party because the costume was religious. For the school principal to censor this young student at Halloween because he was dressed as Jesus is patently ridiculous. Its yet another demonstration of just how hostile to Christianity public school officials have become, said ADF Legal Counsel Matt Bowman. It is unconstitutional to single out Christian students for censorship. School officials at Willow Hill Elementary School had required that students wear a costume at school on Halloween, or they would be isolated from the rest of the student body during the schools parade and party. The 10-year-old student and his mother, out of Christian conviction, sought to avoid promoting Halloween and its pagan elements and determined that by wearing a Jesus costume the student could accomplish this goal while avoiding the compelled isolation imposed on those not wearing a costume. But on Oct. 31, Willow Hill Principal Dr. Patricia Whitmire told the fourth-grade students mother that a Jesus costume would violate the schools religion policy. Whitmire required that the young student remove his crown of thorns and not identify himself as Jesus. Our clients teacher, perhaps missing the irony, suggested that he instead pretend to be a Roman emperor, Bowman noted. Willow Hill Elementary School is part of the Abington Township School District, where Halloween is celebrated districtwide. Permitted costumes worn by other children within the school district this past Halloween included those of devils, witches, and a skeleton covered with blood. A copy of the complaint filed in the U.S. District Court for the District of Eastern Pennsylvania in E.D.T. v. Abington Township School District can be read at www.telladf.org/UserDocs/EDTComplaint.pdf. Abington Township School District was the battleground for a notable 1963 First Amendment controversy, Abington Township School District v. Schempp. That ruling declared school-sponsored Bible reading in public schools to be unconstitutional. ADF is a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - We won't tell. Get more on shows you hate to love (and love to hate): Yahoo! TV's Guilty Pleasures list.___ 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: AlterNet website
I just read Hedges' piece. It was pure hate speech, but speech I believe the Constitution protects. It sounds like Hedges also wishes to restrict not only Christian broadcasters, but also Christian schools, such as the one my son attends. His real problem is not so much the Christian fascists he attacks so viciously, but all three Clauses of the First Amendment. Hedges piece is a sad and bitter piece, written by a man who believes that both political parties have blessed the unchecked rape of America and that those who believe in the teachings of the Bible have moved from the reality-based world to one of magic -- to fantastic visions of angels and miracles, to a childlike belief that God has a plan for them and Jesus will guide and protect them. This mythological worldview, one that has no use for science or dispassionate, honest intellectual inquiry, one that promises that the loss of jobs and health insurance does not matter, as long as you are right with Jesus, offers a lying world of consistency that addresses the emotional yearnings of desperate followers at the expense of reality. I think the real threat we face is not Christian fascism, but rather religious persecution directed at anyone who has a committed,childlike faith in God and God's lies, or who believes in this mythological worldview. We need a strong First Amendment now more than ever. Returning to lurk mode, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Food fight? Enjoy some healthy debate in the Yahoo! Answers Food Drink QA.___ 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.
George Dent on Gay Rights vs. Religious Freedom
Here is a corrected link to Prof. Dent's article.Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Stay in the know. Pulse on the new Yahoo.com. Check it out. ___ 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.
Dent Link Again
I don't know why the link isn't working. Here is one more attempt:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931257Civil Rights for Whom?: Gay Rights versus Religious Freedom Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Do you Yahoo!? Get on board. You're invited to try the new Yahoo! Mail.___ 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: Teenagers The Spirit of Liberty
"This conflict isn't about "free speech" or even a 60-second prayer; it's about who gets to define what kind of nation we are." Charles HaynesFirst Amendment CenterI agree with this insight. I don't think this issue is about the majority of students bullying a classmate as some have suggested. I think it is about students taking a stand against a particular view of America, a view that wishes to impose a strictly secular establishment in the schools. I guess they (the students who took a stand and their parents who applauded)would say that it is better for the people to define the role of religion in the schools than for the ACLU and federal courts to do so.I personally am not one who wishes to use public schools to impose religion on dissenters. But I am also strongly imposed to the public schools becoming an engine of secularization, a place where religious children need to wear a secular mask when taking part in school activities.Again, school choice is the solution to this problem of "defining" what kind of nation we are and what kind of schools we attend. It does not have to be either religious schools and prayer or secular schools and no prayer. It can be both. The one for those who value religion as a necessary part of the education of children; and the other for those who don't. But if we have a government school monopoly, and if someone tries to impose a strictly secular environment within that monopoly, then I will applaud students who stand up and say "we will not be silenced;we are going to participate in defining what kind of nation we are." These kids are heroes in my book. Their parents should be proud of them.Rick DuncanRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Sneak preview the all-new Yahoo.com. It's not radically different. Just radically better. ___ 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.
Bullying of Christian Students in Public Schools
Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment.Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates.___ 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.
Teenagers The Spirit of Liberty
Link(See also link)Excerpt from the second link): High School Students Defy ACLU and Court May 20, 2006 01:43 PM ESTBy Sher Zieve Despite U.S. District Judge Joseph McKinleys ruling that no prayer was to be allowed at Kentuckys Russell County High School commencement ceremonies, at least 200 students recited the Lords Prayer during the ceremony. The ACLU had argued to have prayer banned at graduation, due to a complaint from 1 student. Thunderous applause is said to have broken out towards the end of the prayer and senior Megan Chapman continued with her praise, when she said that her fellow students should trust God as they continue their lives after high school.Chapman commented "It [the prayer] made the whole senior class come together as one and I think that's the best way to go out", then added: "More glory went to God because of something like that than if I had just simply said a prayer like I was supposed to."Every year in May there are stories of liberty like these. I love it when young men and women take a stand for free speech and religious liberty! Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Be a chatter box. Enjoy free PC-to-PC calls with Yahoo! Messenger with Voice.___ 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: Teenagers The Spirit of Liberty
I enjoy the Religion Clause blog a great deal. Howard is doing a great job there.But is it really a "loophole" for students to engage in non-school sponsored prayer at their own commencement? Could a federal court ever properly employ the EC to enjoin the entire senior class--students notschool officials--from praying at their own graduation? It is one thing to say that the EC forbids the school from sponsoring prayer at commencement--including by giving a student chaplain preferential access to the podium for the purpose of praying. It is a very different thing to say that the EC somehow forbids students--either individually or collectively--from simply praying out loud without school sponsorship at their graduation ceremony. The EC applies only to government sponsored prayer. It is not a loophole--but rather a basic limitation of the EC--to say that the EC does not apply to the non-sponsored religious _expression_ of students who merely happen to be attending a public school ceremony.Cheers, RickCheers, Rick"Friedman, Howard M." [EMAIL PROTECTED] wrote:For a somewhat different take on this, see my Religion Clause blog post titled Looking for Establishment Clause Loopholes at http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html*Howard M. Friedman Disting. Univ. ProfessorEmeritusUniversity of Toledo College of LawToledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: [EMAIL PROTECTED] * From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick DuncanSent: Tuesday, May 23, 2006 12:04 PMTo: Law Religion issues for Law AcademicsSubject: Teenagers The Spirit of Liberty Link(See also link)Excerpt from the second link): High School Students Defy ACLU and CourtMay 20, 2006 01:43 PM ESTBy Sher Zieve Despite U.S. District Judge Joseph McKinleys ruling that no prayer was to be allowed at Kentuckys Russell County High School commencement ceremonies, at least 200 students recited the Lords Prayer during the ceremony. The ACLU had argued to have prayer banned at graduation, due to a complaint from 1 student.Thunderous applause is said to have broken out towards the end of the prayer and senior Megan Chapman continued with her praise, when she said that her fellow students should trust God as they continue their lives after high school.Chapman commented "It [the prayer] made the whole senior class come together as one and I think that's the best way to go out", then added: "More glory went to God because of something like that than if I had just simply said a prayer like I was supposed to."Every year in May there are stories of liberty like these. I love it when young men and women take a stand for free speech and religious liberty! Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id.Be a chatter box. Enjoy free PC-to-PC calls with Yahoo! Messenger with Voice.___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/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. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Talk is cheap. Use Yahoo! Messenger to make PC-to-Phone calls. Great rates starting at 1/min.___ 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: Teenagers The Spirit of Liberty
Here is the way I look at it. "One poor kid" tried to censor his classmates with the help of a powerful legal ally, the ACLU.His classmates did not like being silenced by the "poor kid." So they made a stand--not to ostracize the poor kid, but to stand up for their liberty of religious _expression_ at their own commencement. They did not violate the spirit of the EC. The spirit of the EC deals with government coercionand religion. The true spirit of the Religion Clause is on the side of the students who would not be cowed and silenced by the ACLU and the unelected judiciary. I am proud of these kids. I hope their spirit spreads to many other schools and impacts many other commencements. There is no need to ask school officialsto sponsor prayer. All students need to do is pray: without asking for endorsement or permission from government authorities.Cheers, Rick Duncan[EMAIL PROTECTED] wrote:Some info from the involved ACLU affiliate isat this link:http://www.aclu-ky.org/news.html#Grad%20PrayerThat info includes the following paragraph:"School-sponsored prayer constitutes a symbolic and tangible âpreference⦠given by lawâ to a religious sect by exalting it over contrary religious beliefs deemed less worthy of government endorsement,â the ACLU argues in the court papers. âIt compels attendance at a place of worship by conditioning participation at public graduation ceremonies on acceptance of prayer at those ceremonies.âI don't see how having a student body election for "graduation chaplain" as I saw described in this Kentucky case cures the problem post Lee and Santa Fe. I don't know why anyone would cheer the ostracism of some poor kid at his own high school graduation. With all due respect to Prof. Duncan, that doesn't sound like "religious liberty" to me.Allen Asch In a message dated 5/23/2006 10:14:01 AM Pacific Standard Time, [EMAIL PROTECTED] writes:For a somewhat different take on this, see my Religion Clause blog post titled âLooking for Establishment Clause Loopholesâ at http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html*Howard M. Friedman Disting. Univ. ProfessorEmeritusUniversity of Toledo College of LawToledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: [EMAIL PROTECTED] * From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick DuncanSent: Tuesday, May 23, 2006 12:04 PMTo: Law Religion issues for Law AcademicsSubject: Teenagers The Spirit of Liberty Link(See also link)Excerpt from the second link):High School Students Defy ACLU and CourtMay 20, 2006 01:43 PM ESTBy Sher Zieve â Despite U.S. District Judge Joseph McKinleyâs ruling that no prayer was to be allowed at Kentuckyâs Russell County High School commencement ceremonies, at least 200 students recited the Lordâs Prayer during the ceremony. The ACLU had argued to have prayer banned at graduation, due to a complaint from 1 student.Thunderous applause is said to have broken out towards the end of the prayer and senior Megan Chapman continued with her praise, when she said that her fellow students should trust God as they continue their lives after high school.Chapman commented "It [the prayer] made the whole senior class come together as one and I think that's the best way to go out", then added: "More glory went to God because of something like that than if I had just simply said a prayer like I was supposed to."Every year in May there are stories of liberty like these. I love it when young men and women take a stand for free speech and religious liberty! Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902___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/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. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Ring'em or ping'em. Make PC-to-phone calls as low as 1¢/min with Yahoo! Messenger with Voice.
RLUIPA Case With Great facts
From a Liberty Counsel press release:May 10, 2006 News Release Virginia County Bucking Against Cowboy Church Bedford County, VA In a demand letter written to Bedford County officials, Liberty Counsel has warned the county to back off its citation against a Cowboy Church. The letter was written on behalf of Raymond Bell, the pastor of The Cowboy Church of Virginia.Mr. Garland Simmons owns and farms nearly all of his 900 acres in Bedford County. A few months ago, he agreed to open up his barn every Thursday night for worship services conducted by The Cowboy Church of Virginia. Having a church in a barn in the middle of a large field has become a big deal to Bedford County. Mr. Simmons received a Notice of Violation a few days ago, stating that the barn cannot be used for religious services and that his 900 acres of property arent zoned for religious meetings, therefore, he would not even be able to apply for a permit. Mr. Simmons has been given thirty days to appeal the decision.Liberty Counsels demand letter states that Bedford County is violating the Religious Land Use and Institutionalized Persons Act and the First Amendment. The letter requests that Bedford County officials immediately rescind the Notice of Violation or face a possible federal lawsuit. Nice exam question perhaps. Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Yahoo! Mail goes everywhere you do. Get it on your phone.___ 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
Jeff Jacoby has an excellent column in today's Boston Globe here. And here is a money quote: Note well: Catholic Charities made no effort to block same-sex couples from adopting. It asked no one to endorse its belief that homosexual adoption is wrong. It wanted only to go on finding loving parents for troubled children, without having to place any of those children in homes it deemed unsuitable. Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies.The church's request for a conscience clause should have been unobjectionable, at least to anyone whose pri! ority is rescuing kids from foster care. Those who spurned that request out of hand must believe that adoption is designed primarily for the benefit of adults, not children. The end of Catholic Charities' involvement in adoption may suit the Human Rights Campaign. But it can only hurt the interests of the damaged and vulnerable children for whom Catholic Charities has long been a source of hope. Is this a sign of things to come? In the name of nondiscrimination, will more states force religious organizations to swallow their principles or go out of business? Same-sex adoption is becoming increasingly common, but it is still highly controversial. Millions of Americans would readily agree that gay and lesbian couples can make loving parents, yet insist nevertheless that kids are better off with loving parents of both sexes. That is neither a radical view nor an intolerant one, but if the kneecapping of Catholic Charities is any indication, it may soon be forbidden.''As much as one may wish to live and let live," Harvard Law professor Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in Massachusetts, ''the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles."The ax fell on Catholic Charities just two years after those words were written. Where will it! have fallen two years hence? Mary Ann's point is well-taken. If A, then B.I wish I had thought of that!Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze. ___ 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
By a remarkable coincidence, I have been reading J. Budziszewski's wonderful book, The Revenge of Conscience: Politics and the Fall of Man, as the story about Catholic Charities has been breaking. It is a timely book to say the least.But itis alsonot a book for everyone; some of you will no doubt think it is "ugly" and "shameful" and even the "H" word.But some of you may find it full of wisdom and understanding. It is one of those books which--about every two pages--I feel compelled to read a passage aloud to my wife. It is a book I want my children to read. It is a book that would make a greatone for CLS chapters to study together on those law school campuses that still allow the CLS to meet. It is a book that would be great to teach (as at least one reasonable point of view) in a seminar on religious liberty and the sexual revolution.I heartily recommend it to those of y! ou who care about traditional faith, and sin and its personal and social consequences. Here is what First Things said about it: "A book to read alone and with others, and to give to those who have forgotten what they know." Michael Novak says J. Bud "writes on conscience--its masks, its evasions, and its willful self-deceptions--better than anyone in our time. A book to read and reread."I know and likeJ. Bud, and I can't believe I didn't read this book years ago. Here is a link to Amazon.com. Heartily recommended for those who know that there are truths that"we can't not know" no matter how hard we try to suppress them.Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id. Yahoo! Mail Use Photomail to share photos without annoying attachments.___ 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
The editorial in today's Boston Globe was written by Dean John Garvey and the following excerpt relates to the discussion we have been having about the conflict between typical gay rights laws and religious liberty:It seems surprising that the state would want to put the Catholic Church out of the adoption business. Corporal works of mercy are no less important to the life of the Church than its sacramental ministry. Forbidding the Church to perform them is a serious blow to its religious liberty. Why would the government do that?One reason is that the Church refused to go along with the effort, enshrined in these regulations and blessed in Goodridge v. Department of Public Health, to give gay families the same legal rights as straight families. But Catholic Charities did not obstruct that effort; it only declined to assist it. Is our commitment to equality so strong that we are willing to put Catholic Charities out of business because it won't promote an agenda that it views as morally wrong?The issue is not whether the Church or the state has the better of the debate over gay families. When freedom is at stake, the issue is never whether the claimant is right. Freedom of the press protects publication of pornography, blasphemy, and personal attacks. Freedom of religion is above all else a protection for ways of life that society views with skepticism or distasteRespect for religious liberty is a good thing. We should not lose sight of it in an effort to achieve other social go! als. To paraphrase Barry Goldwater, extremism in the defense of equality can be a vice. I can't find anything to disagree with inthat eloquent statement of the problem.Rick Duncan Anthony Picarello [EMAIL PROTECTED] wrote: Although I share Marci's general concern about the risks associated with religious organizations taking government funds, I'm pretty sure that's not the driving force in this case. Even before the government would get to the point of pulling its funding to Catholic Charities (assuming there is some, which I do), the government would pull CC's license to provide adoption services for anyone. Assuming its factual accuracy, this op-ed in today's Globe confirms the existence of the additional lic! ensing prohibition (and its an interesting read in any event):http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/03/14/state_putting_church_out_of_adoption_business?mode=PFSo there isn't just a financial incentive at stake here, but a flat prohibition on the service, and so a more severe burden by any measure (as Marty's original question suggests). I would add that the withdrawal of government benefits (specifically, unemployment benefits) is precisely what was found to impose a "substantial burden" in Sherbert, Hobbie, Thomas, etc., and precisely because government forced a choice between following religious belief and receiving that government benefit. The SCt has reaffirmed these very cases for this very principle in Locke. So to suggest that it's beyond the pale to claim that this kind of government burden is a "substantial burden" is to overstate the matter just a bit.-Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Sat 3/11/2006 7:02 PM To: religionlaw@lists.ucla.edu Cc: Subject: Re: Catholic Charities IssueWhat this dispute re: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs. Government funding always comes with strings. In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way. A tiny portion is paid by Catholics. I would assume that on its own dime, CC can facilitate adoptions, but feel free to correct that assumption. The question is whether it is going to accept the condition placed on it by the government's money. CC is not required to take the government's money, right? This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that ! it is entitled to that largesse and that the government should have no power to place strings on the money. There is no First Amendment problem and certainly no "substantial burden" under RFRA. If "substantial burden" means that religious entities can force the government to give them money on their own terms, we are quite literally on the other side of Alice's looking glass.Marci___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/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
And Now For Something Completely Different
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 ___ 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
So Mr. Brayton agrees with the HRCthat the Catholic faith--at least on the issue of marriage and family--is "shameful" and "ugly" and "serves absolutely no higher purpose." Our zones of tolerance just don't overlap.Rick DuncanEd Brayton [EMAIL PROTECTED] wrote: Rick Duncan wrote: 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.I agree with all of that except the last part. The Bishops are acting consistent with their faith, and to that extent I respect their decision. But that doesn't make the rest of the statement untrue.Ed Brayton___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/religionlawPlease note that messages sent to this large list cannot be viewed as pr! ivate. 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"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! Mail Use Photomail to share photos without annoying attachments.___ 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
I think Christopher Lund captures a valuable insight about competing notions of identity. My friend from UT, J Bud, makes a point that strike me as similar when he talks about our various zones of tolerance: The bottom line is that Neutrality is no more coherent in the matter of religious tolerance than it is in tolerance of any other sort. What you can tolerate pivots on your ultimate concern. Because different ultimate concerns ordain different zones of tolerance, social consensus is possible only at the points where these zones overlap. Note well: The greater the resemblance of contending concerns, the greater the overlap of their zones of tolerance. The less the resemblance of contending concerns, the less the overlap of their zones of tolerance. Should contending concerns become sufficiently unlike, their zones of tolerance no longer intersect at all. Consensus vanishes. This, I believe, is our current trajectory. The embattled term 'culture war' is not inflammatory; it is merely inexact. And we can expect the war to grow worse. The reason for this is that our various gods ordain not only different zones of tolerance, but different norms to regulate the dispute among themselves. True tolerance is not well tolerated. For although the God of some of the disputants ordains that they love and persuade their opponents, the idols of some of the others ordain no such thing. J. Budziszewski, The Revenge of Conscience (1999). --- Christopher C. Lund [EMAIL PROTECTED] wrote: Perhaps there is also a linkage between gay rights and religious liberty in the sense that both are largely about identity. Precisely because religious and sexual identity are not entirely immutable (although neither seems to be wholly a matter of unconstrained choice), the government can leverage people away from being who they, in a deep sense, really are. I heard one gay-rights speaker once conclude by saying something like: This is who I am; I can be no other. I don't honestly think she meant to sound like Martin Luther before Emperor Charles at the Diet of Worms (I cannot, and I will not recant. Here I stand; I can do no other. God help me. Amen.) Perhaps she didn't even recognize the resemblance. But, there it is. 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 ___ 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
Mark: I think Rust controls here, and, thus, the state has the power to define the rules any way it wishes to govern its own program. So CC had to walk if it wished to obey God. But the rule, although probably within the power of the state to enact, has the effect of excluding--as immoral--CC because of CC's religious convictions about the nature of marriage and family. Thus, *your* temple *could* be an adoption grantee under the Massachusetts program, but the other temples you mentioned--those with a different understanding of the basic precepts of Judaism--would be(along with CC)excluded from the program. If your ultimate concern affirms homosexuality, you end up being intolerant toward the other temples and institutions like CC. Your tolerance toward homosexual families looks like religious intolerance from the perspective of the other temples and CC. I suppose if Massachusetts wanted to be tolerant to everyone, it would have many grantees (e.g. both your temple and the other temples)and allow each grantee to find good homes for children based upon its reasonable (but different) understanding of marriage and family. Your temple would include homosexual couples in its search for parents and the other temple would not. That is a way of ensuring inclusion of homosexual couples without forcing CC (and the other temples) out of the program. Cheers, Rick --- Mark Graber [EMAIL PROTECTED] wrote: I guess I get more confused by this debate as it goes on. 1. Part of my confusion is on the debate over the status of gay abortions in the Catholic Church. I'm not sure why we are debating the issue. Presumably if the Catholic Bishops of Boston claim to have religious reasons for not engaging in that practice, that ought to be good enough for the rest of us. Maybe a debate on that ought to go on within the Catholic Church, but most of us have no say in that debate. 2. I'm also confused why it is anti-religious to insist that all institutions that arrange for adoptions not discriminate against gay and lesbian couples. It may be wrong as a matter of public policy, but it is not anti-religious per se. Some religions believe that homosexuality is immoral (or something to that effect). My temple takes the position that discrimination against homosexuals is immoral and inconsistent with basic precepts of Judaism (other tempes disagree). We might imagine that the state might require particular parenting standards that differ from those imposed by some religions. Again, whether those parenting standards are desirable is independent of whether they are consistent with any religion. 3. In short, Massachusetts seems to believe that discrimination against same sex couples in the adoption process is (almost) as inconsistent with state values as discrimination against different race couples. I think that is correct. Rick Duncan thinks that is wrong. But our fight is on the merits of that proposition, because if I am right on the moral proposition, the religious argument seems to fall. Mark A. Graber ___ 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 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 ___ 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
Doug is right--land use planners also target the ordinary activities of mainstream religious ministries that are merely trying to worship or do good works. But one difference is that zoning laws don't stigmatize ministries as outlaws whose activities and programs are contrary to the law and deserving of condemnation and punishment. Zoning laws just say not in this neighborhood. Nevertheless, thank God for RLUIPA. Rick --- Douglas Laycock [EMAIL PROTECTED] wrote: Rick asks: Who else has a political agenda that targets the ordinary activities (such as adoption ministries and health benefits) of mainstream religious institutions and turns these ministries into unlawful acts. Answer: Land use planners. On the conflict between sexual liberty and religious liberty, I didn't say we were getting it right under current law. I said there's no reason except overreaching by both sides why we couldn't get it right under the law going forward. ___ 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 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 ___ 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.
Catholic Charities Issue
The Boston Globe has two good articles today on the decision by the Archdiocese to end its adoption services rather than submit to the government's antidiscrimination rules requiring the Church to place children with homosexual couples despite its sincerely held religious belief that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development."Here and here. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! Mail Use Photomail to share photos without annoying attachments.___ 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 Not Bending the Knee to Baal
I believe the Church properly sees race as irrelevant to sexuality and family formation. But homosexuality is much different from race.Here is the current Pope's position on adoption by homosexual couples:But a conflict between the Catholic bishops of Massachusetts and Beacon Hill has been evolving for several decades, as state policy makers have adopted an increasingly expansive view of gay rights, starting with a nondiscrimination measure in 1989 and culminating in 2004, when Massachusetts became the only state in the nation to legalize same-sex marriage . At the same time, the Vatican, often guided by the theologian who is now Pope Benedict XVI, became increasingly alarmed at the growing tolerance of homosexuality in the West, and in 2003 Benedict issued a doctrinal statement opposing same-sex unions and declaring that ''allowing children to be adopted by persons living in such unions! would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development." Link.Obviously, millions ofreasonable people of good will believe that Benedict XVI is acting rationally and in good faith. My point--which focused only on thereligious liberty issue--was that when faced with a choice between obeying God or Caesar, the Church must obey God. That is what the Church did in this case. It chose to get out of the adoptionministry rather than stay in and disobey God. That is clearly the right decision--indeed the only decision--for a religious body to make.Cheers, Rick Duncan[EMAIL PROTECTED] wrote: In a message dated 3/10/2006 11:16:20 PM Eastern Standard Time, [EMAIL PROTECTED] writes:This was the right move for the Archdiocese to make. Really, it was the only move they could make. It's sad that many children will suffer, but the Archdiocese has to obey its conscience. Isn't this precisely symmetrical to religions opposed to interracial adoption? Or is the point that opposition tointerracial adoption is irrational while opposition to adoption by gays is not? BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___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/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. 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 Relax. Yahoo! Mail virus scanning helps detect nasty viruses!___ 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 Not Bending the Knee to Baal
Whoops! The link in my previous post to the Pope's views about homosexual adoption did not work. Here is the correctedlink.Cheers, Rick[EMAIL PROTECTED] wrote: In a message dated 3/10/2006 11:16:20 PM Eastern Standard Time, [EMAIL PROTECTED] writes:This was the right move for the Archdiocese to make. Really, it was the only move they could make. It's sad that many children will suffer, but the Archdiocese has to obey its conscience. Isn't this precisely symmetrical to religions opposed to interracial adoption? Or is the point that opposition tointerracial adoption is irrational while opposition to adoption by gays is not? BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___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/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 memb! ers 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"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! Mail Bring photos to life! New PhotoMail makes sharing a breeze. ___ 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 Not Bending the Knee to Baal
Bobby: I am not a Catholic theologian (but the current Pope is a very serious theological scholar). But a very quick answer, based upon my knowledge of Scripture, is to say that homosexuality, unlike race,strikes atthe very essence of the Created Order, from Genesis 1 to the teachings of Jesus in the New Testament.I would leave mychurch and join another, ifmy churchsuddenlydiscovered thatthe Bible's teachings about human sexuality and marriage and family were no longer true. In my opinion,my church would no longer be a "Christian" church if itadopted such a theology. This, of course, is exactly what is happening in some mainline Protestant churches today. The issue is whether we should believe God's moral teachings or the moral teachings of secular elites. That is an easy choice for me, as it appears to be for Benedict XVI.Cheers, Rick ! [EMAIL PROTECTED] wrote: In a message dated 3/11/2006 10:17:25 AM Eastern Standard Time, [EMAIL PROTECTED] writes:My point--which focused only on thereligious liberty issue--was that when faced with a choice between obeying God or Caesar, the Church must obey God. That is what the Church did in this case. It chose to get out of the adoptionministry rather than stay in and disobey God. That is clearly the right decision--indeed the only decision--for a religious body to make. (boldface added)We know that religions evolve even in fundamental ways. The Church of Jesus Christ of Latter Day Saints once had a prohibition (I think) against blacks becoming bishops. I suspect such changes have occurredin other religions also. If so, why is this the "only decision" for a Church to make? Why isn't another conceivable position to rethink the Church's opinion of this matter? I'm not suggesting that the Catholic church is likely to do so, but then what is it about the Catholic Church (and perhaps certain kinds of religions generally) that make it impossible for them to respond to changes in law, customs, or non-Catholic morality with the attitude expressed by "Well, let's examine the issue." My question is not onlywhether should the Church adopt this attitude, but what about the Church prevents it from taking this proposal seriously?! BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___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/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. 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 Relax. Yahoo! Mail virus scanning helps detect nasty viruses!___ 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
Paul: If Catholic priests were required to perform or directly facilitate executions as acondition of visiting prisoners, my guess isthe Churchwould indeed withdraw from prison ministry. This is what the state of Massachusetts is doing to CC in the adoption area--it is requiring CC to arrange for adoptions by homosexuals as a condition of having an adoption ministry in the state.All you opponents of the Solomon Amendment ought to be able to understand how an organization could be strongly opposed to facilitating a moral evil. Your position concerning faciliting "immoral" military recruiters is the same as the Church's position concerning facilitating "immoral" adoptions.Cheers, Rick Paul Finkelman [EMAIL PROTECTED] wrote: I wonder if ! the Catholic Church should withdraw all support for the prison system because the Church opposes Capital punishment? It would be a shame for those on death row not to get last rites, or those in prison not to be able to talk to a priest, but at least the Church would be consistent. Paul FinkelmanRick Duncan wrote:The Boston Globe has two good articles today on the decision by the Archdiocese to end its adoption services rather than submit to the government's antidiscrimination rules requiring the Church to place children with homosexual couples despite its sincerely held religious belief that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development."! Here and here.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! MailUse Photomail to share photos without annoying attachments. ___ ! 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/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.-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189918-631-3706 (office) 918-631-2194 (fax)[EMAIL PROTECTED]___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/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. 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." --T! he Prisoner Yahoo! Mail Use Photomail to share photos without annoying attachments.___ 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
Doug Marty: I think CC had two reasons to withdraw rather than litigate. One is they were indeed concerned about their chances of winningthis free exercise issuein the Mass courts. Second, they were facing discrimination themselves from the United Way and other funding agencies that are selectively tolerant (i.e. "you better be tolerant to gays or we will be intolerant toward your funding requests").Another good reason not to give to the United Way. Of course, the best reason not to give to the United Way isto protest theiruse coercion (through employers) to gain "contributions" from employees.RickMarty Lederman [EMAIL PROTECTED] wrote: 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] To: "Law Religion issues for Law Academics" 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 LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341512-471-6988 (fax)From: [EMAIL PROTECTED] on behalf of Will EsserSent: Sat 3/11/2006 12:35 PMTo: Law Religion issues for Law AcademicsSubject: Re: Catholic Charities IssuePaul,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 placing its religious values first.WillPaul Finkelman [EMAIL PROTECTED] wrote:I wonder if the Catholic Church should withdraw all support for the prison system because the Church opposes Capital punishment? It would be a shame for those on death row not to get last rites, or those in prison not to be able to talk to a priest, but at least the Church would be consistent. Paul FinkelmanRick Duncan wrote:The Boston Globe has two good articles today on the decision by the Archdiocese to end its adoption services rather than submit to the government's antidiscrimination rules requiring the Church to place children with homosexual ! couples despite its sincerely held religious belief that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be ! used to place them in an environment that is not conducive to their full human development."Here http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/ and here http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/ .Rick Duncan Welpton Professor of Law University of Nebraska Co! llege 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 PrisonerYahoo! MailUse Photomail http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com to share photos without annoying attachme! nts. ___ 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 member
