RE: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Sanford Levinson]

For what it is worth, at a Thanksgiving table discussion of the issue, which 
included my daughter Meira, who has taught in the public schools in Atlanta and 
Boston and who now teaches at the Harvard Graduate School of Education (and who 
has written a terrific book of her own on civic education, No Citizen Left 
Behind), there was agreement that 50 years from now newborns will probably 
receive a chip that will be activated throughout their lives for a variety of 
purposes (including, no doubt, surveillance), and it will be accepted as a 
given.  That being said, though both of my daughters could see a rationale for 
the school system's policy--Meira pointed out that teachers are personally 
liable if a student under their charge is missing--, they probably wouldn't 
consent to the policy for their own children (assuming consent is an option.  I 
think what this demonstrates is that this is a closer case than I initially 
thought, though I'm still perturbed by the lesson it teaches vu!
 lnerable children about their lack of rights.  Surely it violates the First 
Amendment to punish the child for passing out leaflets objecting to the policy.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 22, 2012 3:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

I appreciate Doug's point, but I wonder whether the difference between 
children and adults might actually be especially significant here.  After all, 
when it comes to adults, we don't order them to go to school, or allow the 
police to pick them up in order to bring them home to their parents, or give 
their parents the right to withhold their property if they come home late or 
fail to keep the parent posted about where they are.  As courts have pointed 
out, a child -- unlike an adult -- is always in someone's custody, in the sense 
that someone (whether parent, school official, or what have you) is entitled to 
control the child's actions in ways that are not tolerated as to adults.  
Children aren't in the custody of the prisons or the pretrial release system; 
but they are in the custody of someone.  

The question is whether the propriety of these restrictions on liberty 
of movement (applicable to children and to others) also supports restrictions 
on liberty from surveillance of one's movements.  I'm inclined to say that it 
does, though I might be mistaken.

Eugene



> -Original Message-
> From: Douglas Laycock [mailto:dlayc...@virginia.edu]
> Sent: Thursday, November 22, 2012 12:02 PM
> To: Law & Religion issues for Law Academics; Volokh, Eugene
> Subject: Re: High School Student's Religious Objection to Wearing RFID 
> Chip Badge for Student Locator Program
> 
> It seems to me that Eugene is talking about ends, and that this is a 
> dispute about means.
> 
> Of course we want students to attend school, we generally want them to 
> comply with the rules, and we generally want adults and students alike 
> to comply with the law. But we do not in this country use continuous 
> surveillance as a means to those ends. Continuous surveillance, 
> typically implemented with ankle bracelets, is reserved for people 
> already convicted, or at least indicted, for serious crime -- for 
> people who could be confined to jail or prison, and who are getting a break 
> by being released subject to continuous surveillance.
> 
> The rights of children are not always equal to the rights of adults. 
> But I would want to see much stronger justification before creating a 
> student exception to something so fundamental.
> 
> As Marc Stern said, this is like the GPS device planted on a car -- 
> except without even a claim of reasonable suspicion.
> 
> On Thu, 22 Nov 2012 11:25:09 -0800
>  "Volokh, Eugene"  wrote:
> > Though I agree with much that Sandy says (and especially join in his
> Happy Thanksgiving wishes), I wonder whether the item below involves 
> the tailing wagging the dog a bit.  Many virtues that we inculcate in 
> schools are only presumptive virtues, that sometimes must be set aside 
> in favor of other virtues.  That's true of honesty.  (You might have 
> to lie to the Nazi who comes to ask whether you're hiding Jews in your 
> home.)  It's true of solving problems in non-violent ways.  (You might 
> need to use deadly force in self-defense, or fight in a war to protect 
> your country.)  That's also true of following the law, and using 
> law-abiding means to try to change laws you disapprove of.  Yet it 
> seems to me that it's good to teach such virtues, and have 
> disciplinary or monitoring measures that help reinforce the virtues, even 
> though we recognize that in rare circumstances such virtues need to yield to 
> other concerns.
> >
> > Eugene
> >
> 
> Douglas 

RE: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Sanford Levinson]

I agree with Eugene's statement, but it's important to inculcate in children 
from a young age that they are entitled to an explanation from government for 
the laws it imposes on individuals (especially if, like children, they are 
without voting power), and that a failure to persuade might, depending on 
circumstances, legitimize disobedience.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 22, 2012 2:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

Though I agree with much that Sandy says (and especially join in his 
Happy Thanksgiving wishes), I wonder whether the item below involves the 
tailing wagging the dog a bit.  Many virtues that we inculcate in schools are 
only presumptive virtues, that sometimes must be set aside in favor of other 
virtues.  That's true of honesty.  (You might have to lie to the Nazi who comes 
to ask whether you're hiding Jews in your home.)  It's true of solving problems 
in non-violent ways.  (You might need to use deadly force in self-defense, or 
fight in a war to protect your country.)  That's also true of following the 
law, and using law-abiding means to try to change laws you disapprove of.  Yet 
it seems to me that it's good to teach such virtues, and have disciplinary or 
monitoring measures that help reinforce the virtues, even though we recognize 
that in rare circumstances such virtues need to yield to other concerns.

Eugene

Sandy Levinson writes:

> Also, I'm not sure we want to create citizens who believe their dty is 
> to "comply with [all] legally enacted rules," nor do I "certainly want 
> minor students who so comply."  Perhaps I'm influenced by the terrific 
> book written by my wife Cynthia (on four "best of 2012 lists so far," 
> re non-fiction books for children), We've Got a Job:  The 1963 
> Children's March in Birmingham, which details the remarkable decision 
> by minor students to take on Bull Connor's cops and, as a result, to 
> revive a wavering Civil Rights Movement by encouraging John Kennedy 
> finally to commit himself on civil rights.  No "unruly children," no 
> Civil Rights Act of 1964.  It's not quite that simple, but the 
> assumption of agency by the children, who were not really encouraged to march 
> by their parents or by Dr. King, was literally an historic act.
> 
> A Happy Thanksgiving to everyone.
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RE: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Sanford Levinson]

Eugene raises a very interesting point, and he's correct that I do believe, at 
least as an initial proposition, that genuine goods that can be purchased by 
well-off folks can (even if not "must") be provided by the state to 
less-well-off persons.  I do think the key, though, is some assessment of the 
good in question as a "genuine good," e.g., the ability to engage in genuine 
reproductive choice for state-provided contraception and abortion, the ability 
to perpetuate one's religion in the case of state-subsidized ability to attend 
religious schools.  (Actually, of course, this argument was made most 
eloquently by Michael McConnell in his Harvard Law Review article edited by one 
Barack Obama.)  Obviously, many people would deny that reproductive choice or 
socializing helpless youngsters into a religious perspective is a "good" at 
all, but, for the argument to work, most of the society does have to believe 
that these are goods.  So perhaps it really does boil down to taking a !
 poll and discovering a) whether most parents really do want to be able to 
locate their children at all times and b) whether at least older children 
(starting around 12?) do have some protected moral right to at least limited 
privacy, even against their hovering parents, and whether, at least with regard 
to public schools, this ought to be recognized as a protected legal right.  

Also, I'm not sure we want to create citizens who believe their dty is to 
"comply with [all] legally enacted rules," nor do I "certainly want minor 
students who so comply."  Perhaps I'm influenced by the terrific book written 
by my wife Cynthia (on four "best of 2012 lists so far," re non-fiction books 
for children), We've Got a Job:  The 1963 Children's March in Birmingham, which 
details the remarkable decision by minor students to take on Bull Connor's cops 
and, as a result, to revive a wavering Civil Rights Movement by encouraging 
John Kennedy finally to commit himself on civil rights.  No "unruly children," 
no Civil Rights Act of 1964.  It's not quite that simple, but the assumption of 
agency by the children, who were not really encouraged to march by their 
parents or by Dr. King, was literally an historic act.  

A Happy Thanksgiving to everyone.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, November 22, 2012 1:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

I appreciate Sandy's point, but I wonder whether the matter might be 
more complex than that.  We don't want "docile" citizens, but we do want 
citizens who comply with legally enacted rules; and we certainly want minor 
students who so comply.  We expect citizens to display their lack of docility 
by acting to change the law, not by disregarding the law.

Moreover, we insist as a matter of law -- including tort law -- that 
schools protect the minors who are left in their care.  Truancy isn't just bad 
for school funding; it's also bad for the students' education, it poses risks 
for children who are unsupervised when they are truant, and it might also in 
some neighborhoods increase street crime by some of the truants.  Some degree 
of surveillance, it seems to me, is reasonable under the circumstances.

Finally, this raises an insight that I owe to Sandy himself, though I 
forget the exact context in which he raised it.  Adapting it to this context, 
let me ask this:  Parents who can afford private schooling can send their 
children to schools that closely monitor their children's whereabouts, and make 
sure that the children don't cut class.  I would think that many -- perhaps 
most, or even nearly all -- parents who had this choice would indeed prefer 
(all else being equal) a private school that engages in such monitoring.  If 
I'm right, then why shouldn't parents who send their children to government-run 
schools also be able to take advantage of this feature (though realizing that 
there has to be a one-size fits-all solution at the level of the school or even 
the school district)?  One answer, of course, is that the Bill of Rights 
applies to government-run schools but not private schools.  But that doesn't 
really settle the question when it's not clear that there's any Bill !
 of Rights violation.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
> Sent: Thursday, November 22, 2012 10:00 AM
> To: 'religionlaw@lists.ucla.edu'
> Subject: Re: High School Student's Religious Ob

Re: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Sanford Levinson]

I must say that this seems to be an easy case for any civil libertarian to 
support even (or perhaps especially) in the absence of a free exercise claim.  
The RI is absolutely correct that this is socializing students to be docile 
citizens within a "surveillance society."

Sandy



- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Thu Nov 22 11:41:41 2012
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

Yes. I did not mean to imply otherwise. The school's website says that it has a 
high rate of absences. I gather the school thinks that if it monitors all 
students it will somehow be able to claim a higher attendance rate and get more 
state funds (which I suppose are based on daily attendance, as they are in 
California). The school was willing to accommodate her by removing the chip 
from her badge, but apparently that would not affect the appearance of the 
badge. 

Happy Thanksgiving to everyone on the list!

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Thursday, November 22, 2012 8:30 AM
To: Law & Religion issues for Law Academics; Scarberry, Mark
Subject: Re: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

The complaint alleges that all students were required to wear the badge -- not 
just those in disciplinary trouble or with a history of truancy. Nothing 
individualized about this.

On Wed, 21 Nov 2012 20:47:56 -0800
 "Scarberry, Mark"  wrote:
>The Rutherford Institute says that it has obtained a TRO protecting a student 
>who refused to wear a badge with an RFID (radio frequency identification) chip 
>that would allow the school to determine her location at all times on school 
>grounds. See 
>https://www.rutherford.org/publications_resources/on_the_front_lines/victory_court_grants_rutherford_institute_request_to_stop_texas_school_from.
> The application for a TRO is here:  
>https://www.rutherford.org/files_images/general/11-21-2012_TRO-Petition_Hernandez.pdf.
>
>Apparently the student considers the wearing of the badge to be a kind of 
>idolatry or act of submission to a false god. She was offered the option of 
>wearing a badge with the chip removed, but she refused, because wearing it 
>would signal her approval of or participation in the program, which raises 
>both free exercise and compelled speech issues. There are other issues, as 
>well, including a claim that the school prohibited her from passing out flyers 
>on school grounds opposing the RFID program.
>
>The Rutherford Institute describes the RFID program as a preparation of 
>students for a society in which everyone is constantly under surveillance, but 
>they also note that the school district hopes to get more funding by improving 
>attendance.
>
>I thought this was going to be about the "mark of the beast" from the Book of 
>Revelation. The story and the application for a TRO don't seem to be that 
>specific on the source of her religious objection. I think she also claims 
>that the program violates her right to privacy and that the requirement that 
>she wear a badge (even without the chip) to indicate support for the program 
>is a form of compelled speech.
>
>I haven't anything on this story in the mainstream press. Perhaps someone on 
>the list knows more or can provide links to news stories.
>
>Mark S. Scarberry
>Professor of Law
>Pepperdine Univ. School of Law
>
>

Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
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RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Sanford Levinson]

I really don't understand Mark's argument here:  If one accepts a (strong 
version of) Romans 13:1 re the legitimacy of magistrates and therefore feels 
impelled to obey them (as Scalia has suggested he does), then why is it a 
"burden" at all, since by definition what the magistrate (appointed by God, 
even if one can't quite undersatnd why) is a legitimate authority.  We're not 
talking about "authoritarian personalities" with a psychological predisposition 
to follow authority, but, rather "religions that have strong belief in obeying 
the authorities" (presumably because of a theology that derives from Romans 
13:1.)  It's tricker if we're talking about a belief that one should obey 
rather than avoid civil strife.  But isn't avoiding civil strife generally 
desirable.  Of course, the argument is that there shouldn't be such strife 
because the rest of us should tolerate the disobedience.  But doesn't that 
depend on the specifics of what is being disobeyed?

sandy

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Wednesday, October 03, 2012 4:44 PM
To: Law & Religion issues for Law Academics
Cc: 'M Cathleen Kaveny'
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

A “following orders” defense disadvantages religions that have strong belief in 
obeying the authorities, or that balance the need to avoid civil strife against 
the need to follow religious precepts. I don’t think the successful coercion of 
religious people should cut against their right to free exercise. Coercion is 
not freedom. If you send your kids to a public school that has Bible readings 
and prayers, because you can’t afford private school, and because there are 
mandatory education laws, does the successful coercion eliminate the invasion 
of religious freedom? If your kids tell your kids to go ahead and recite the 
pledge because otherwise they will be punished, do you and they forfeit your 
First Amendment claim? (Of course, any other approach is circular; if you are 
willing to suffer the consequences, then you don’t have to suffer the 
consequences, because (or assuming) your religious freedom claim succeeds.)

Do people have to be willing to go to jail or to pay large fines in order to 
have religious freedom claims? We may test sincerity, but we don’t require 
heroism.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, October 03, 2012 1:46 PM
To: 'Law & Religion issues for Law Academics'
Cc: 'M Cathleen Kaveny'
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

Well, Marty’s response at least seems to agree that saving money doesn’t take 
away the claim.

Does following government orders take away the claim? If it did, as Marty 
notes, there could never be a RFRA claim. If the government funded the 
orphanage, and ordered the church to take the cheaper food contract, it would 
take away the church’s choice – but the church would not feel at all exonerated.

Some people feel exonerated by a following orders defense, and some do not. And 
I suspect many people feel that following orders can justify violations of 
minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are 
never filed because people with religious objections go along when their 
objections are not strong enough to motivate a difficult fight with the 
government.

The bishops say these rules are too important to them for a following orders 
defense to provide moral justification. And I find nothing implausible in that 
claim. With respect to the drugs that they believe sometimes cause abortions, I 
would be astonished if they took any other position. With respect to ordinary 
contraception, I think many of us are finding it hard to believe they take the 
rule so seriously, because we think the rule is so stupid. But it is very 
important to the bishops, and to some conservative Catholics, and they are 
saying that following orders cannot justify them in paying for a policy that 
will provide these drugs.

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 Marty Lederman
Sent: Wednesday, October 03, 2012 3:26 PM
To: Law & Religion issues for Law Academics
Cc: M Cathleen Kaveny
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

If I understand the Catholic doctrine, Doug, in your hypothetical the church 
will have chosen to save the $200,000 by 

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Sanford Levinson]

Must the prison supply kosher meat (and build a kosher kitchen) or is it enough 
that it supplies nutritious vegetarian food, even though other prisoners get 
meat?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, October 01, 2012 4:28 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

Chris--  I take it you are arguing that for every religious prisoner with a 
dietary restriction, all of them can prove substantial burden,
but the state may or may not win under RLUIPA based on the state's evidence of 
compelling interest?

Is it a substantial burden where the believer can obtain 50% of the foods 
he/she seeks?  I'm broadening this from the kosher
food context, obviously.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Christopher Lund mailto:l...@wayne.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Mon, Oct 1, 2012 3:39 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Imagine an observant Jew wants a kosher meal in prison.  The prison doesn’t 
serve kosher food.  Our plaintiff says, “This burdens my religion.”  The prison 
responds, “No, it doesn’t.  You’re not responsible for the food we choose to 
serve in prison.  That’s a genuinely free and independent choice that we made.  
It has nothing to do with you.”

So why is there a “substantial burden” there?  I think it’s simple: The state 
is requiring the religious observer to do something his religion forbids.  
Maybe Judaism has overly broad notions of “responsibility.”  But those notions 
are what they are, I think.  The state can’t say, “Your theological notions of 
‘responsibility’ are absurd,” any more than it can say, “Your theological 
notions about the food God requires you to eat are absurd.”

Best,
Chris

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Monday, October 01, 2012 2:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

Rick, Alan:  Allow me to ask the flip-side question of the one Alan raises:  
For those of us -- myself included, and you, and most of the members of this 
list -- who have long argued that the state is not responsible for the 
genuinely free and independent choices of individuals to use state $$ at a 
school of their choice, and that the state can surely ameliorate any risk of 
misperceived endorsement by simply issuing a clear disclaimer of neutrality and 
nonendorsement (see Pinette), is it really fair to attribute to the employer 
here the employee's decision to use contraception when (i) the coverage in the 
insurance plan is compelled by law; (ii) the plan can be used for literally 
hundreds of different types of medical goods and services, of which 
contraception is but one; (iii) the decisions whether or not to use the plan 
for contraception are the result of genuinely free and independent private 
choice and could not reasonably be attributed to the employer; and (iv) the 
employer is free to issue as many disclaimers as it wishes, explaining in no 
uncertain terms that it thinks contraception is sinful, that it deplores the 
law in question, that it would strongly urge its employees not to use 
contraception, etc.?

If we're going to argue -- as many of us have -- that the state's involvement 
in the student's choice of a religious school is far too attenuated to 
implicate in any strong manner the "conscience" rights of the taxpayer whose 
funds eventually make their way, pursuant to many intervening decisions, to the 
religious school's coffers, why should we think there is a "substantial" burden 
on the employer's obligations of conscience in this case?


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RE: Court Rejects Religious Liberty Challenges To ACA Mandate

[Sanford Levinson]

I the entailment of Doug's position that "very small businesses" should be 
allowed to refuse to hire employees on the basis of their disapproval of any 
aspect of the employee's behavior?  I realize this follows from classic 
employee-at-will doctrine, and I suspect (I don't teach in the field, so I 
simply don't know, I'm embarrassed to say) that Title VII might not apply to 
"very small businesses."  But, obviously, that exception is overly broad if 
we're trying to protect the very small subset of very small businesses run by 
idiosyncratic religious people.  A generalized exception, obviously, could 
protect me in my refusal to hire any Republicans, etc.  (I apologize if 
this question is unsophisticated given the realities of exceptions to 
employment law.)

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Sunday, September 30, 2012 4:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My explanation was not that the judges are rooting for the government, although 
sometimes they are. My explanation was that a finding of no burden "makes hard 
cases go away." 

These cases involve direct regulation of religiously motivated behavior. The 
Court's point in Bowen and Lyng was that there was no regulation of the 
plaintiff's behavior at all. So the direct/indirect point has no purchase here.

It is not at all clear to me that large commercial business should win these 
cases. That is partly because of government interests of the sort marci 
mentions, and partly because the connection to religious exercise becomes 
increasingly attenuated as the business grows, and especially as the number of 
owners increases. But religious institutions should win these cases, and 
probably very small businesses that are personal extensions of the individual 
owner.



On Sun, 30 Sep 2012 14:26:07 -0400 (EDT)  hamilto...@aol.com wrote:
>The references to Barnett and Yoder are misplaced.  This case is closer to 
>Bowen, Lee, and Lyng than to either of those cases.
>In fact, Bowen, Lee, and Lyng cases are stronger for the believer, 
>because the burden found to be insufficient in those cases is direct rather 
>than indirect.
>
>
>The notion that courts don't find "substantial burden," because they 
>are rooting for the government, which is Doug's explanation, is 
>insupportable.  "Substantial burden" is a legal term of art, not a measure of 
>how the believer feels about the burden.  The burden here is incidental to 
>their religious beliefs, not direct or substantial.
>
>
>But let's look at this issue from a broader perspective.  Do those favoring 
>the employee here favor the following arguments as well?
>
>
>Jehovahs Witness business owner should not have to pay for coverage of 
>blood transfusions Scientology business owner should not have to pay 
>for coverage of mental health benefits LDS business owner should not 
>have to pay for coverage for treatments that include caffeine 
>Evangelical or Catholic business owner should not have to pay for 
>coverage of MS treatments derived from embryonic stem cell research
>
>
>There is no principled way to distinguish these demands from the demands made 
>in this case.  
>
>
>I also would point out that Title VII forbids business owners from 
>discriminating on the basis of religion.  Granting the business owner
>the right to tailor medical care to his or her religious beliefs strikes me as 
>an end run around that principle.   The work place is supposed
>to be neutral as to religion.  When the employer can tailor benefits to 
>fit religious viewpoint, he or she is gerrymandering the employment 
>market so that conservative Catholics are going to be more likely to 
>want to work for conservative Catholics and non-Catholics are going to be more 
>inclined to avoid conservative Catholic employers.  Can businesses create an 
>employment universe where their owners impose their religious beliefs on the 
>terms of employment consistent with Title VII?
>
>
>Marci
>
>
>
>
>
>
> 
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003
>(212) 790-0215
>hamilto...@aol.com
>
>
>
>
>-Original Message-
>From: Marc DeGirolami 
>To: Law & Religion issues for Law Academics 
>
>Sent: Sun, Sep 30, 2012 1:38 pm
>Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate
>
>
>
>I wonder what sort of evidence Marty is looking for.  What arguments qualify 
>as “serious” arguments?  And “serious” for whom?  A “serious” argument is not 
>necessarily an argument that one finds persuasive, though that might be the 
>standard.  It could instead be an argument that one disagrees with but that 
>one finds plausible.  Or perhaps not outrageous.  Or is it instead one which 
>the religious claimant takes “seriously,” even

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[Sanford Levinson]

With genuine respect to Tom, I don't think that one can really generalize from 
Thomas.  Burger did say what Tom says he said, but it simply can't be the case 
that the First Amendment allows highly idiosycratic religious believers 
effectively to torpedo important programs, especially when there is so much 
incentive to engage in strategic misrepresentation and where, unlike the CO 
cases, the dissidents apparently need do little or nothing more than assert 
their belief.  

And, I confess, I'm just not impressed by the phenomenological differences with 
the pacifist taxpayer, though as a lawyer I know how to construct the formal 
distinction.

Sandy

- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Sun Sep 30 13:30:07 2012
Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate

Marty,



The fact that services must be covered in the plan by "virtue of legal mandate" 
(are "required by law") can't be enough to counter the asserion of a burden, 
can it--or even be a significant factor in countering it?  That would do away 
with virtually every free exercise claim (I'm only providing facilities for an 
abortion, or I'm only receiving a blood transfusion, under legal compulsion).



You place a lot of weight on the claim that most Catholic theologians say this 
isn't cooperation with evil, and that no one has articulated a "serious 
argument" that distinguishes this and paying salaries or taxes.  I don't think 
those things are true (can one conference show it?): consider, for example, 
Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's 
argument here about inclusion of the services in the plan language.  You and 
others may not find those arguments convincing.  But rejecting the burden claim 
based on finding the distinction unconvincing, or on the existence of "a great 
deal of skepticism among [Catholic] theologians," can't be squared--can 
it?--with Thomas v. Review Board, where the Court said that Thomas's judgment 
on what work would cooperate with the evil of arms production should be 
deferred to even though other Jehovah's Witnesses disagreed.  "Courts are not 
arbiters of scriptural interpretation"; the court can't dismiss the!
  claim at the threshold because it concludes the asserted belief is not 
"logical," not "consistent," etc.



Occasionally you seem to be treating this as a question of remoteness of 
facilitation for "burden" purposes independent of Catholic moral thought; but 
more often you return (as I think one must in assessing burden) to asking why 
claimants believe this is "material cooperation with evil," "from a Catholic 
moral perspective."  That latter question, it seems to me, falls squarely 
within the restrictions of Thomas v. Review Board not to second-guess the 
claimant's understanding of its obligations.



Tom



-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Sunday, September 30, 2012 11:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My post bounced, apparently because of the number of recipients!  Resending 
without so many cc's.  Sorry for any duplicate receipts.

On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
For what it's worth, at our Georgetown Conference on this issue last week (a 
video of which should be posted soon), there appeared to be a great deal of 
skepticism among the Catholic theologians and other scholars present (some of 
whom I am copying here, along with some others at the conference) that where an 
employer provides employees with access to a health-insurance plan on 
compulsion of law; the services in question are part of the plan virtue of 
legal mandate; and the use of the plan to pay for any particular heath care 
service is entirely within the discretion of the employee and her physician, 
the employer does not thereby engage in material cooperation with evil just 
because some employees might choose to use the plan (unbeknownst to the 
employer) to subsidize the use of contraception.

I am hardly an expert in such questions of Catholic doctrine; but I, for one, 
have yet to see any serious argument from those objecting to the Rule that 
compliance would result in a violation of religious obliga

Re: German circumcision decision

[Sanford Levinson]

I'm not clear why Paul puts "cruel" in scare quotes. It seems clear--see Temple 
Grandin's lifework--that it IS less humane than other possible means of 
slaughtering. Perhaps it has to be tolerated, but we shouldn't avoid the truth.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Paul Finkelman ; Law & Religion issues for Law 
Academics 
Sent: Sun Jul 01 11:30:02 2012
Subject: Re: German circumcision decision

I posted this before I had a chance to read the decision, which I now see is 
about a Muslim case; that undermines some of my arguments, but not all of them. 
 The politics may be less about Jews than Muslims but the issue remains the 
same -- a fundamental attack on religious minorities.  I wonder, for example, 
whether the next step will be a ban on Kosher or Halal slaughtering on the 
grounds that it is "cruel" to animals? The case does not seem to be based on 
the place of the circumcision.  That is one could imagine a law that requires 
it to be done in a hospital. But this does not appear to be the issue here.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: Paul Finkelman 
To: Law & Religion issues for Law Academics 
Sent: Sunday, July 1, 2012 12:21 PM
Subject: Re: German circumcision decision

Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.

The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: "Volokh, Eugene" 
To: Law & Religion issues for Law Academics 
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision

Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.

Eugene

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Re: German circumcision decision

[Sanford Levinson]

As a matter of fact, I'm quite certain the case involved a botched Moslem 
circumcision. And I strongly suspect there is more anti-Islamic sentiment than 
traditional anti-Semitism (directed at Jews) in contemporary Germany. Indeed, 
the decision offers an opportunity for Jews and Moslems to unite.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Sun Jul 01 11:21:28 2012
Subject: Re: German circumcision decision

Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.

The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: "Volokh, Eugene" 
To: Law & Religion issues for Law Academics 
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision

Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.

Eugene

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RE: Court upholds prison no-pork policy against EstablishmentClause challenge

[Sanford Levinson]

Nick Kristoff has an interesting piece in today's NYTimes, 
http://www.nytimes.com/2012/04/12/opinion/kristof-is-an-egg-for-breakfast-worth-this.html?_r=1&hp
 decrying the treatment of chickens by "egg factories."  (One of my own feeble 
gestures, presumably predictable by reference to my economic status and 
politics, is that I buy eggs of cage-free chickens and don't order veal.)  So 
I'm interested in the reference to Article 20a of the Basic Law.  What if a 
state really does try to protect all animals against cruel treatment, including 
chickens, cows, pigs, harvested fish, whales  in captivity, etc.?  Assuming 
that the practices of kosher slaughter are in fact less humane than they "need 
to be" (assuming that one continues to be non-vegetarian and therefore must 
support the raising and then killing of animals, birds, and fish for our own 
consumption), is there any dispositive reason for the state to accommodate a 
desire for kosher meat, even in an institutional setting that offers a 
presumptively healthy vegetarian option?   I ask this as a genuine question, 
since I find myself genuinely perplexed by the issue.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Claudia Haupt
Sent: Thursday, April 12, 2012 12:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against EstablishmentClause 
challenge

I wrote about this a while ago in Free Exercise of Religion and Animal 
Protection: A Comparative Perspective on Ritual Slaughter, 39 Geo. Wash. Int'l 
L. Rev. 839 (2007). The article includes a discussion of the 2002 German 
constitutional amendment that made animal protection a constitutional state 
objective in Article 20a of the Basic Law.

--
Claudia E. Haupt
Professorial Lecturer in Law
George Washington University Law School
2000 H Street, NW
Washington, DC 20052
202-994-8494
ceha...@law.gwu.edu

My new book: Religion-State Relations in the United States and Germany  
www.cambridge.org/9781107015821



On Thu, Apr 12, 2012 at 1:25 PM, 
mailto:hamilto...@aol.com>> wrote:
Chip is right, of course.

But Eric's point requires a response.
I don't I don't think PETA folks would appreciate having their sincere concerns 
about the humane treatment of
animals traced to the Nazis.  To say that humane treatment concerns are more 
often than
not "pretext" and then to have as your example something out of the 1930s is 
singularly unpersuasive.


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Eric Rassbach mailto:erassb...@becketfund.org>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Apr 12, 2012 1:14 pm
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause 
challenge





Chip is right that the supposedly inhumane methods of kosher/halal slaughter

(something US law defines as humane, btw) is one of the main public

justifications for banning the practice. But as our brief in the New Zealand

kosher slaughter ban case pointed out -- 
http://www.becketfund.org/wp-content/uploads/2011/04/NZ-kosher-brief-FINAL.pdf

-- more often than not this is pretext. For example, this was the same

justification the anti-Semites of the 1930s used for banning the practice in

several European countries. As we point out in our brief, one of the first

things the Nazis did upon taking power was to pass a law banning kosher

slaughter, supposedly in order "to awaken and strengthen compassion as one of

the highest moral values of the German people."  I don't think it's too much of

a stretch to guess that anti-Muslim sentiment may be a subterranean motivation

for the humane practices argument in the Netherlands, France and elsewhere.



The ironic part for me of the Mohr case was that my main experience of

stand-alone prison pork bans is as a proposed "compromise" to settle kosher

accommodation lawsuits. Of course pork bans don't work as a method of kosher

accommodation, though prison administrators keep hoping that they do. In our now

6-year-old lawsuit against the Texas prison system (now on a return trip to the

5th Circuit), Texas at one point floated a pork ban as a solution, which only

served to show that they didn't understand how kashrus works.



Eric



From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
On

Behalf Of Ira Lupu [icl...@law.gwu.edu]

Sent: Thursday, April 12, 2012 10:39 AM

To: Law & Religion issues for Law Academics

Subject: Re: Court upholds prison no-pork policy against EstablishmentClause

Re: Cabbies vs. lawyers

[Sanford Levinson]

Prof. Jamar asks an important question. Is it relevant, though, that the US has 
not adopted the "cab rank" rule. I wonder--a genuine question--how often elites 
are forced into the genuine dilemmas posed by being a common carrier. The 
cabbies have far fewer career options than any reader of this list. (To be 
sure, we are common cariers vis-a-vis our students: we can't refuse to teach 
lawyering skills to would-be tobacco lawyers or others likely to engage in what 
we regard as immoral, but, alas, legal behaviors.). I don't know exactly where 
to go with this. I agree, for example, that postal workers and pharmacists 
should be treated as common carriers. As I've already written, I just don't 
think there is a neat principle that will resolve close cases.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Tue Mar 06 19:49:13 2012
Subject: Re: Cabbies vs. lawyers

Are we to do away with the common carrier rules that have prevailed for 
centuries? Various businesses are different from one another and have long been 
treated so according the law.  No one has a right to be a cab driver if they 
cannot comply with the common carrier rules any more than people have the right 
to be lawyers if they cannot comply with the requirements of our profession.

This is not an argument about whether those who control the cabs and make the 
rules should or should not try to accommodate the demand to not carry someone 
who has an obvious wine bottle in their possession but will carry someone who 
has hidden it.  But it is not a right to be recognized as a constitutional one. 
 We should not constitutionalize every demand for accommodation.  We can do a 
lot (as indeed we do) through statutes and regulations even in the absence of a 
recognized constitutional right.




--
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice 
http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/


"There is no cosmic law forbidding the triumph of extremism in America."


Thomas McIntyre




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RE: Cabbies vs. lawyers

[Sanford Levinson]

For what it is worth, I find the arguments made by Eugene, Greg, and Doug 
(among others) convincing.  My one caveat:  If the cabbies, as is common, live 
in a city with an artificially restricted number of licenses, and if devout 
Muslims comprise a (surprising?) percentage of those legally entitled to the 
monopolistic privileges a license brings with it, then I’d probably modify my 
views.  Consider the postal worker who doesn’t want to deliver the offensive 
publication:  It’s one thing if an “accommodation” could easily be made (though 
I’m curious what it would be in a Postal Service that is stripping service (and 
numbers of employees) to the minimum).  It would be quite another thing to 
force the recipient to walk down to the post office in lieu of receiving the 
mail at his/her home. I don’t think that abstract principles will necessarily 
decide concrete cases.  The actual facts count.  (There is a real logic behind 
the “cab rank” rule for lawyers in a city where there are few lawyers and 
unpopular people might legitimately believe that allowing lawyers to exercise 
discretion in picking  their clients would leave vulnerable minorities without 
the genuine opportunity for effective representation.)

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2012 6:39 PM
To: Law & Religion issues for Law Academics
Subject: Cabbies vs. lawyers

In a sense this may be obvious, but it might be worth 
restating:  One thing that is facing the cabbies is that for complex reasons 
cabbies are stripped of liberties that the rest of us take for granted.  If we 
disapprove of alcohol – whether because we’re Muslim or Methodist, or because a 
close family member is an alcoholic or was injured by a drunk driver – we are 
free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or 
to refuse to let people carrying beer bottles onto our business property.  To 
be sure, our right to freedom of choice may have been limited in some ways by 
bans on race discrimination, sex discrimination, religious discrimination, and 
the like.  But whether right or wrong those bans still leave us mostly free to 
choose whom to do business with.

The cab drivers thus want only the same kind of liberty that 
the rest of us generally have.  Their argument isn’t a pure freedom of choice 
argument (which the law has rightly or wrongly denied to cabbies generally) but 
a freedom of choice argument coupled with a religious freedom argument; but 
that simply shows that this freedom of choice is even more important to them 
than it generally is to the rest of us.

This doesn’t mean that they should win.  Maybe there’s a really 
good reason for denying cabbies, including religious objectors, this freedom of 
choice when it comes to transporting alcohol.  But it does cast a different 
light on objections to people “choosing [clients] according to [the choosers’] 
religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors 
their views.”  No-one makes such objections when we as lawyers pick and choose 
our clients; no-one faults us for choosing them according to our religious 
beliefs (unless those beliefs require race or sex discrimination or such); 
no-one says that lawyers who refuse to work for alcohol distributors demand a 
right to exist in a culture that mirrors our views.  Likewise, I don’t think 
it’s fair to condemn cabbies for seeking, in this one area that is unusually 
important to them, the same freedom that lawyers have.

Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Tuesday, March 06, 2012 2:59 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Requirement that cabbies transport alcohol = "tiny burden"?

Why is anger at a publicly licensed cab picking and choosing passengers 
according to religious belief anything like anti-Muslim animus?   Cabbies can't 
reject passengers on race.   Why should they  be able to reject those with 
religious beliefs different from their own?  If they don't want to be in the 
company of nonbelievers, they should find another line of work.

Also-- a number of imams announced the cabbies were misreading the Koran.  
There was no requirement they not transport others' cases of wine.  No one was 
asking them to drink the wine

We have crossed the line from legitimate claims to accommodation into the 
territory where religious believers demand a "right" to exist in a culture that 
mirrors their views.That is called Balkanization

Marci


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Please note th

RE: The religious exemptions in the new NY same-sex marriage law

[Sanford Levinson]

Query:  Can Orthodox Jews who run assisted living facilities deny that Reform 
or Conservative Jews are "co-religionists" (because, among other things, they 
ordain gays and lesbians and allow same-sex marriage), or are "they" stuck with 
"us," whether they like it or not?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, June 26, 2011 2:21 PM
To: Law & Religion issues for Law Academics
Subject: Re: The religious exemptions in the new NY same-sex marriage law

A very small, peripheral point:  Chip writes that under current NY law, "if a 
religious organization owns and operates an assisted living facility, and it 
excludes occupants on religious grounds, and it preaches against same-sex 
intimacy, it probably would be free to exclude same-sex partners."

I have no idea what the existing NY religious exemption looks like -- perhaps 
it simply exempts religious organizations from the antidiscrimination rules for 
assisted living facilities generally, in which case Chip's example is surely 
correct.  But if, instead, such organizations only have an exemption to favor 
*coreligionists,* as under title VII -- i.e., in Chip's words, to "exclude 
occupants on [certain] religious grounds," namely, that they are not 
coreligionists -- and *if* such an organization permits only its own 
coreligionists to live in the facilities (unlikely but not inconceivable), then 
it likely could not exclude same-sex partners who are of the favored religion.  
The coreligionists exception, that is to say, is not a license to discriminate 
on the basis of other prohibited criteria (race, sex, sexual orientation, etc.) 
merely because such discrimination is religiously motivated -- it only permits 
discrimination in favor of coreligionists.
On Sun, Jun 26, 2011 at 10:44 AM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
Whatever the current law in NY is, this doesn't change it.  So if a religious 
organization owns and operates an assisted living facility, and it excludes 
occupants on religious grounds, and it preaches against same-sex intimacy, it 
probably would be free to exclude same-sex partners.  Their marital status 
wouldn't change this.  I very much doubt that the organization's power to 
discriminate extends to investment property.  But that's a question of NY Human 
Rights law, and perhaps someone can enlighten on those details.  The important 
point about the the same-sex marriage law is that it appears to leave that 
power to discriminate (whatever its scope) undisturbed.


On Sat, Jun 25, 2011 at 4:49 PM, 
mailto:hamilto...@aol.com>> wrote:
How do folks read the "rental of housing" language?   What if a religious 
organization owns rental property as an investment--does this mean they can 
reject gay partners even if the property is not otherwise used for religious 
purposes?
Does this differ from current law?

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: Marty Lederman mailto:lederman.ma...@gmail.com>>
Sender: 
religionlaw-boun...@lists.ucla.edu
Date: Sat, 25 Jun 2011 16:24:50
To: Law & Religion issues for Law 
Academicsmailto:religionlaw@lists.ucla.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The religious exemptions in the new NY same-sex marriage law
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
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RE: The religious exemptions in the new NY same-sex marriage law

[Sanford Levinson]

I take it that this doesn't change anything re family service agencies and 
adoptions by same-sex couples, for example, and the like.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, June 25, 2011 4:33 PM
To: Law & Religion issues for Law Academics
Subject: Re: The religious exemptions in the new NY same-sex marriage law

Perhaps the first language in bold expands which religiously affiliated orgs 
are covered, but the substantive result seems no different from the language 
Marty reported earlier -- religious entities need not host same-sex weddings or 
celebrations of weddings.   No private lawsuits and (I guess this was an 
important addition) no loss of public benefits if they refuse to host such 
events.  The religious liberty side of this debate got some cover, but they 
didn't get much else as far as I can see.  If I'm wrong, please correct me.
On Sat, Jun 25, 2011 at 4:24 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
NY Times reports that what I forwarded earlier was not the final exemption 
language.  Let's try this -- at least one key to the negotiations was 
apparently the passages in bold:

Notwithstanding any state, local or municipal law, rule, regulation, ordinance, 
or other provision of law to the contrary, a religious entity as defined under 
the education law or section two of the religious corporations law, or a 
corporation incorpo- rated under the benevolent orders law or described in the 
benevolent orders law but formed under any other law of this state, or a 
not-for- profit corporation operated, supervised, or controlled by a religious 
corporation, or any employee thereof, being managed, directed, or super- vised 
by or in conjunction with a religious corporation, benevolent order, or a 
not-for-profit corporation as described in this subdivision, shall not be 
required to provide services, accommodations, advantages, facilities, goods, or 
privileges for the solemnization or celebration of a marriage. Any such refusal 
to provide services, accommodations, advan- tages, facilities, goods, or 
privileges shall not create any civil claim or cause of action or result in any 
state or local government action to penalize, withhold benefits, or 
discriminate against such religious corporation, benevolent order, a 
not-for-profit corporation operated, supervised, or controlled by a religious 
corporation, or any employee thereof being managed, directed, or supervised by 
or in conjunction with a religious corporation, benevolent order, or a 
not-for-profit corporation.

2. Notwithstanding any state, local or municipal law or rule, regulation, 
ordinance, or other provision of law to the contrary, nothing in this article 
shall limit or diminish the right, pursuant to subdivision 8 eleven of section 
two hundred ninety-six of the executive law, of any religious or denominational 
institution or organization, or any organization operated for charitable or 
educational purposes, which is operated, supervised or controlled by or in 
connection with a religious organization, to limit employment or sales or 
rental of housing accommodations or admission to or give preference to persons 
of the same religion or denomination or from taking such action as is 
calculated by such organization to promote the religious principles for which 
it is established or maintained.

3. Nothing in this section shall be deemed or construed to limit the 
protections and exemptions otherwise provided to religious organizations under 
section three of article one of the constitution of the state of New York.

A2. Subdivision 1-a of section 11 of the domestic relations law, as added by a 
chapter of the laws of 2011, amending the domestic relations law relating to 
the ability to marry, as proposed in legislative bill number A.8354, is amended 
to read as follows:

1-a. A refusal by a clergyman or minister as defined in section two of the 
religious corporations law, or Society for Ethical Culture leader to solemnize 
any marriage under this subdivision shall not create a civil claim or cause of 
action or result in any state or local government
action to penalize, withhold benefits or discriminate against such clergyman or 
minister.

A3. A chapter of the laws of 2011, amending the domestic relations law relating 
to the ability to marry, as proposed in legislative bill number A. 8354, is 
amended by adding a new section 5-a to read as follows:

5-a. This act is to be construed as a whole, and all parts of it are to be read 
and construed together. If any part of this act shall be adjudged by any court 
of competent jurisdiction to be invalid, the remainder of this act shall be 
invalidated. Nothing herein shall be construed to affect the parties' right to 
appeal the matter.

4. This act shall take effect on the same date as such chapter of the laws of 
2011, takes effect.

On Sat, Jun 25, 2011 at 6:23 AM, Marty Led

Re: "Settlement or extortion?" and antidiscrimination law (and tort law) more generally

[Sanford Levinson]

Art is certainly on to something, but I would emphasize the extreme 
unlikelihood that most Texas communities would make the same settlement if the 
plaintiff had put a pro-choice message on his/her desk. To put it mildly, 
"neutral principles" does not seem to be the mantra of most Texas politicos. (I 
write as someone who helped the ACLU get $8000 in attorney fees for my pro bono 
defense of the Klan in a standard access-to-march case that the City of Austin 
chose to litigate.)

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Tue Apr 26 12:15:26 2011
Subject: Re: "Settlement or extortion?" and antidiscrimination law (and tort 
law) more generally

Eugene asks, "What is it about this particular case that triggers people not 
just to complain about the plaintiff’s position, but to call his and his 
lawyers’ actions 'extortion?'"

I think the actual answer is quite simple, and has nothng to do with legal 
theories.  People are not upset when people with whom they sympathize get 
settlements for legally marginal claims; they are upset when people with whom 
they do not sympathize get settlements for legally marginal claims.  I think 
the people who labeled the lawsuit in this case extortion would not call it 
extortion if a woman were fired by a private employer for displaying a 
pro-choice bumper sticker on her desk, and she sued for wrongful discharge, and 
the employer's insurance company settled for $21,000, even though the law of 
the relevant state was very unlikely to support the woman's claim.  Call me 
cynical.

Art Spitzer



On Tue, Apr 26, 2011 at 11:23 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
 Here’s one thing that has puzzled me about the “settlement or 
extortion?” thread.  Many critics of tort law and employment law – largely 
conservatives and libertarians – have long argued that our legal system often 
leads to unmeritorious claims being settled to avoid risk and to save 
litigation costs.  If Walter Olson (author of Litigation Explosion, which 
criticized American tort law, and Excuse Factory, which criticized American 
employment law) were here, he’d probably say something like this:

  1.  The Title VII reasonable accommodation requirement embodies a 
deliberately vague “undue hardship” / “reasonable accommodation” standard for 
liability.  (Justice Scalia might cheer him on, making his “rule of law as the 
law of rules” argument.)  This is an open invitation to disagreement among the 
parties about what the law requires, and to unpredictable jury decisionmaking.

  2.  Our legal system has overgenerous discovery provisions, which 
make litigation more expensive.

  3.  Courts have interpreted Title VII to provide asymmetrical 
fee-shifting, so that losing employers must pay prevailing plaintiffs’ attorney 
fees, but losing plaintiffs almost never have to pay the prevailing employers’ 
attorney fees.  Compared to either the system the reformers often prefer, which 
is loser pays, or to our normal American Rule of no fee-shifting, this 
asymmetrical system creates a further incentive for plaintiffs to bring weak 
claims, and for employers to settle such claims.

  We’ve been shouting about this for decades, Olson might say, but 
the legal establishment – and especially liberals – have largely condemned and 
rejected our arguments.  What is it about this particular case that triggers 
people not just to complain about the plaintiff’s position, but to call his and 
his lawyers’ actions “extortion”?  And unless we come up with some special rule 
that’s unfavorable to people with objections to abortion, shouldn’t we think 
more broadly about whether our system is broken, and about whether we should 
cut back on the scope of liability, the vagueness of liability, the procedures 
that make litigation costly, and the incentives to bring weak claims?

  Eugene

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--
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
artspit...@gmail.com

Confidentiality Notice

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individual(s) to whom it is addressed.  

RE: Religious accommodation and "accomplice" objections

[Sanford Levinson]

I think Eugene is correct that it is fruitless to discuss the driver's views in 
the language of "reasonableness-unreasonableness."  His example of kashruth and 
the prohibition of mixing chicken and milk is dispositive!  So it really does 
boil down to a utilitarian calculus of the costs to the state (or a business) 
of accommodating the (sincerely held) convictions of an employee, however 
reasonable or unreasonable they might appear to outsiders.  I also thank Marie 
Failinger for her sensitive contribution to this discussion.  I reacted the way 
I did, I suspect, because, living in Texas, I am inclined to adopt a 
"hermeneutics of suspicion" with regard to the willingness of the city to pay 
$21,500 to a radically anti-abortionist bus driver, especially given that those 
in control of the state right now are slashing public budgets with dire 
consequences for anyone who is not, for example, a well-paid tenured law 
professor.   (I recognized that the strongest argument for the settlement is 
the good-faith belief that it simply would have cost more of the taxpayers 
money to resist what I was quite willing to label "extortion."

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, April 26, 2011 11:04 AM
To: Law & Religion issues for Law Academics
Subject: Religious accommodation and "accomplice" objections

   In many religious accommodation controversies, the claimants 
object to doing something because they think such an act would make them 
accomplices to sin.  The bus driver / Planned Parenthood case is one example; 
another is some landlords' objection to renting to unmarried couples (or 
couples in a same-sex romantic relationship); and of course the Supreme Court's 
Thomas case, involving someone who refused to work in munitions production is 
another.

   In such cases, I often hear arguments that the objector's worry 
about being an accomplice is unreasonable.  He can't really know that the 
people he's helping are actually going to sin, one argument goes.  His actions 
aren't really helping the sin in any serious way, another argument goes.  He's 
not being told to actually do anything sinful, a variation goes.

   It seems to me that these responses to the objection are 
misguided, at least if the claimant sincerely believes that his actions do make 
him an accomplice in his understanding of his religion.  (The responses are 
perfectly plausible as attempts to persuade the objector, but I'm assuming here 
the objector is unpersuaded.)

   1.  To begin with, I don't see how a person's religious views of 
accomplice responsibility can be judged by secular standards, and rejected if 
they are seen as "unreasonable" or "ludicrous" under secular standards, any 
more than his other religious views can be so judged.  The notion that you 
can't eat milk together with chicken might seem quite unreasonable to many 
people, especially given that the asserted foundation for it is the prohibition 
on cooking a young goat in its mother's milk.  But religious views don't need 
to be reasonable to be protected.  A religious accommodation argument can be 
rejected (assuming we have an underlying legal rule providing for some such 
accommodations) because the belief is not sincerely held, or because granting 
an exemption is too costly for the employer or for the government.  But I don't 
think it can be rejected on the grounds that we aren't persuaded by the 
claimant's theory of accomplice responsibility, any more than it can be 
rejected on the grounds that we aren't persuaded by the claimant's theory of 
morality or of scriptural interpretation.

   2.  But beyond this, what makes someone an accomplice to 
misbehavior is a difficult question that even our own legal system doesn't deal 
with consistently.  When it comes to criminal accomplice liability, many states 
require that the defendant have the purpose to assist the underlying crime.  
But some states require only that the defendant have the knowledge that he is 
assisting the crime.  Some specialized statutes allow a conviction based on 
mere recklessness about the possibility that one's actions are facilitating a 
crime.  One can be held liable on a primary liability theory (and not just as 
an accomplice) when one's actions help another in his criminal actions even if 
one is merely reckless or even criminally negligent about the possibility.  And 
various theories accepted in many jurisdictions, such as the felony murder 
rule, the Pinkerton conspiracy doctrine, or the natural and probable 
consequences rule of accomplice liability, allow one to be held strictly liable 
(though subject to the quasi-negligence requirements imposed by the proximate 
cause doctrine) for a criminal's actions when one has deliberately embarked on 
a joint effort with that criminal.

   And that's just criminal lia

RE: Settlement or extortion?

[Sanford Levinson]

If the facts are as Mark describes, I would be (provisionally) sympathetic.  
But I suspect such fact situations are few and far between.  I take it that he 
agrees that the UPS drive would be out of luck if the delivery were part of the 
“regular daily assignment.”

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, April 25, 2011 7:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

No, I am not saying that a UPS driver should have such a right simpliciter. But 
if a UPS truck is being specially dispatched to the prison to deliver the 
chemicals, and if there are several drivers available, so that there will be 
little if any delay or inconvenience in having one of the other drivers deliver 
the package, I do think someone who is morally opposed to the death penalty 
should be able to ask that one of the other drivers be dispatched. That seems a 
minimal concession to the conscience of the death penalty opponent. Firing the 
driver in such a situation seems extreme unless the desire to routinize life 
and to homogenize the workforce outweighs concerns of conscience.

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 4:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

OK.  Should a UPS driver, who knows that (s)he is delivering a package 
containing chemicals to be used in capital punishment, have a protected right 
to refuse to make the delivery?  Should UPS be expected to “settle” for (only) 
$21,500 upon reminding its drivers that they are not being hired to exercise 
any independent judgment whatsoever on the nature of the items being delivered. 
 (What about a fur coat, ……. Ad infinitum?)  Recall, for what it’s worth, that, 
unlike Marci, I support RFRA.  But this strikes me as an absurd extension of 
any reasonable principle of “accommodation.”

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, April 25, 2011 6:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

In response to Marci:

There is a high enough percentage that PP does, as I understand it, several 
hundred thousand abortions a year. What is a reasonably high percentage also 
depends to some extent on the purpose for which you ask the question; if I 
stand on a building’s roof with my back to the street and throw a concrete 
block backwards so that it falls to the pavement, the chance of hitting someone 
may be only 3%, which I gather is the number PP gives for the percentage of its 
clients’ visits that actually involve performance of an abortion. But I can 
still be convicted of murder if I do hit someone. Now I don’t ordinarily 
consider abortion to be murder (though non-medically necessary abortions of 
viable fetuses/unborn children perhaps may properly be so termed, where it is 
done, which I think is rarely). But from the standpoint of the bus driver, the 
hundreds of thousands of abortions done each year by PP make the percentage 
reasonably high.

Marci also uses a strawman argument by asking whether I am “seriously 
suggesting that there should be spare drivers available via dispatch for any 
driver who has a passenger heading to a destination where the passenger might 
engage in a practice that might violate the driver's beliefs.” I was quite 
explicit that accommodation would not be necessary if there was not another 
driver who could easily be dispatched or if dispatching another driver would 
cause more than minimal delay or inconvenience.

It would be helpful if we addressed arguments actually made by the person to 
whom we are responding.

It might also be worth giving those who, like the bus driver, do not want to 
facilitate abortions, the benefit of considering them to be morally serious. To 
the extent that they believe abortion is the taking of innocent human life, 
this is far more than “a practice that might violate the driver’s beliefs;” it 
violates basic principles of respect for human life (again, from the bus 
driver’s point of view). It is as if a pacifist were asked to drive a truck 
loaded with missiles, or a fervent death penalty opponent (opposed to the 
taking even of non-innocent human life) were asked to deliver the executioner 
to the prison.

Mark Scarberry
Pepperdine

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, April 25, 2011 4:25 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Settlement or extortion?

That is actually inaccurate.  The vast majority of what Planned Parenthood does 
involves day-to-day gyn care for poor women, as well as contraceptive 
counseling.  A small percentage involves abortion.

In any

RE: Settlement or extortion?

[Sanford Levinson]

OK.  Should a UPS driver, who knows that (s)he is delivering a package 
containing chemicals to be used in capital punishment, have a protected right 
to refuse to make the delivery?  Should UPS be expected to “settle” for (only) 
$21,500 upon reminding its drivers that they are not being hired to exercise 
any independent judgment whatsoever on the nature of the items being delivered. 
 (What about a fur coat, ……. Ad infinitum?)  Recall, for what it’s worth, that, 
unlike Marci, I support RFRA.  But this strikes me as an absurd extension of 
any reasonable principle of “accommodation.”

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, April 25, 2011 6:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

In response to Marci:

There is a high enough percentage that PP does, as I understand it, several 
hundred thousand abortions a year. What is a reasonably high percentage also 
depends to some extent on the purpose for which you ask the question; if I 
stand on a building’s roof with my back to the street and throw a concrete 
block backwards so that it falls to the pavement, the chance of hitting someone 
may be only 3%, which I gather is the number PP gives for the percentage of its 
clients’ visits that actually involve performance of an abortion. But I can 
still be convicted of murder if I do hit someone. Now I don’t ordinarily 
consider abortion to be murder (though non-medically necessary abortions of 
viable fetuses/unborn children perhaps may properly be so termed, where it is 
done, which I think is rarely). But from the standpoint of the bus driver, the 
hundreds of thousands of abortions done each year by PP make the percentage 
reasonably high.

Marci also uses a strawman argument by asking whether I am “seriously 
suggesting that there should be spare drivers available via dispatch for any 
driver who has a passenger heading to a destination where the passenger might 
engage in a practice that might violate the driver's beliefs.” I was quite 
explicit that accommodation would not be necessary if there was not another 
driver who could easily be dispatched or if dispatching another driver would 
cause more than minimal delay or inconvenience.

It would be helpful if we addressed arguments actually made by the person to 
whom we are responding.

It might also be worth giving those who, like the bus driver, do not want to 
facilitate abortions, the benefit of considering them to be morally serious. To 
the extent that they believe abortion is the taking of innocent human life, 
this is far more than “a practice that might violate the driver’s beliefs;” it 
violates basic principles of respect for human life (again, from the bus 
driver’s point of view). It is as if a pacifist were asked to drive a truck 
loaded with missiles, or a fervent death penalty opponent (opposed to the 
taking even of non-innocent human life) were asked to deliver the executioner 
to the prison.

Mark Scarberry
Pepperdine

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, April 25, 2011 4:25 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Settlement or extortion?

That is actually inaccurate.  The vast majority of what Planned Parenthood does 
involves day-to-day gyn care for poor women, as well as contraceptive 
counseling.  A small percentage involves abortion.

In any event, I was not suggesting that the bus driver should ask, but rather 
that no bus driver has a right to ask any passenger where they are headed once 
they get off the bus.

Mark--are you seriously suggesting that there should be spare drivers available 
via dispatch for any driver who has a passenger heading to a destination where 
the passenger might engage in a practice that might violate the driver's 
beliefs?  Once the system must accommodate this driver, which I think, again is 
absurd, it must accommodate all religious drivers, no?  What about the Islamic 
driver who does not believe that women should wear bathing suits or bikinis, 
and refuses to drive women to Macy's?   There is no principled dividing line 
between the 2 believers.

Marci

In a message dated 4/25/2011 7:17:16 P.M. Eastern Daylight Time, 
mark.scarbe...@pepperdine.edu writes:
After all, a reasonably high percentage of women who go to PP go there for 
abortions, and it would seem to be an infringement on the passengers’ privacy 
for the bus driver to ask them if that was their reason.

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RE: Settlement or extortion?

[Sanford Levinson]

I'm willing to agree, as with Thomas, that the Quaker, upon discovering the 
baleful nature of his employment, could ask for reassignment and, upon being 
fired, get unemployment compensation from the state.  Perhaps that should be 
true of the bus driver as well.  But I am still repelled by the $21,500 
settlement.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, April 25, 2011 6:41 PM
To: Law & Religion issues for Law Academics
Subject: Re: Settlement or extortion?

OK, would a Quaker take a job assembling M-1 rifles, even if accurately assured 
that fewer than 1 in 1000 ever fires a shot that hits a person?

Art


On Mon, Apr 25, 2011 at 7:30 PM, Sanford Levinson 
mailto:slevin...@law.utexas.edu>> wrote:
I wonder why Mark believes that "a reasonably high percentage of women who go 
to PP go there for abortions," unless "reasonably high" means >0.  The Quaker 
analogy strikes me as completely inapt, since the Quaker would be the direct 
agent of the harm inflicted by a hit.  Does even the modern (i.e., highly 
conservative) Catholic Church view taking a passanger to PP as part of one's 
general job driving a cab or a bus as complicity with abortion?

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Arthur Spitzer
Sent: Monday, April 25, 2011 6:26 PM

To: Law & Religion issues for Law Academics
Subject: Re: Settlement or extortion?

On the question whether the driver knew why the passengers were going to 
Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy 
lines, even if he were accurately assured that there was only a .01% chance 
that his bullet would hit a person.

Art

On Mon, Apr 25, 2011 at 7:15 PM, Scarberry, Mark 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
If I'm reading the facts correctly, the plaintiff lost his job. If the 
plaintiff turned down the dispatch as soon as he received it, and if the 
Transportation System other drivers available for dispatch (so that it easily 
could have dispatched a different driver to take the passengers to the Planned 
Parenthood facility), then there could be a claim that he was entitled to an 
accommodation.

With regard to Marci's point that they may have been going there to protest PP, 
you have to consider whether you would want the bus driver to ask them why they 
wanted to go to PP. After all, a reasonably high percentage of women who go to 
PP go there for abortions, and it would seem to be an infringement on the 
passengers' privacy for the bus driver to ask them if that was their reason.

So far I've been assuming that the driver turned down the assignment at the 
time he was dispatched and that other drivers could have been dispatched with 
little delay or inconvenience. If, on the other hand, after being dispatched, 
he actually picked up the passengers but then (either on learning their exact 
destination or on noting that one of them seemed to be pregnant) refused to 
take them to their destination, then requiring them to wait for another bus and 
requiring the Transportation System to dispatch a second bus would exceed the 
bounds of any reasonable accommodation.

The possibility of the driver winning the case may have been low, but he did 
suffer real harm by being fired. It seems possible that the case was not 
frivolous, that a reasonable defendant (or its insurance company) might offer a 
settlement, and that the settlement might reasonably considered not to be 
extortion.

Mark Scarberry
Pepperdine

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

I am curious whether there will be any public outrage about this, in the way 
that I suspect there would be if, say, the city paid out $21,500 (in order 
simply to avoid litigation that could undoubtedly be won) to an atheist who 
made an equally dubious claim.  (I confess I see no circumstances under which 
the bus driver deserves "accommodation," any more, to return to a much earlier 
discussion, than I would allow a postal worker to refuse to deliver unpalatable 
mail.

I wonder, incidentally, if the ACLJ is making any money off this settlement, or 
do they handle such cases pro bono?

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Monday, April 

RE: Settlement or extortion?

[Sanford Levinson]

I wonder why Mark believes that "a reasonably high percentage of women who go 
to PP go there for abortions," unless "reasonably high" means >0.  The Quaker 
analogy strikes me as completely inapt, since the Quaker would be the direct 
agent of the harm inflicted by a hit.  Does even the modern (i.e., highly 
conservative) Catholic Church view taking a passanger to PP as part of one's 
general job driving a cab or a bus as complicity with abortion?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, April 25, 2011 6:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Settlement or extortion?

On the question whether the driver knew why the passengers were going to 
Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy 
lines, even if he were accurately assured that there was only a .01% chance 
that his bullet would hit a person.

Art


On Mon, Apr 25, 2011 at 7:15 PM, Scarberry, Mark 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
If I'm reading the facts correctly, the plaintiff lost his job. If the 
plaintiff turned down the dispatch as soon as he received it, and if the 
Transportation System other drivers available for dispatch (so that it easily 
could have dispatched a different driver to take the passengers to the Planned 
Parenthood facility), then there could be a claim that he was entitled to an 
accommodation.

With regard to Marci's point that they may have been going there to protest PP, 
you have to consider whether you would want the bus driver to ask them why they 
wanted to go to PP. After all, a reasonably high percentage of women who go to 
PP go there for abortions, and it would seem to be an infringement on the 
passengers' privacy for the bus driver to ask them if that was their reason.

So far I've been assuming that the driver turned down the assignment at the 
time he was dispatched and that other drivers could have been dispatched with 
little delay or inconvenience. If, on the other hand, after being dispatched, 
he actually picked up the passengers but then (either on learning their exact 
destination or on noting that one of them seemed to be pregnant) refused to 
take them to their destination, then requiring them to wait for another bus and 
requiring the Transportation System to dispatch a second bus would exceed the 
bounds of any reasonable accommodation.

The possibility of the driver winning the case may have been low, but he did 
suffer real harm by being fired. It seems possible that the case was not 
frivolous, that a reasonable defendant (or its insurance company) might offer a 
settlement, and that the settlement might reasonably considered not to be 
extortion.

Mark Scarberry
Pepperdine

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

I am curious whether there will be any public outrage about this, in the way 
that I suspect there would be if, say, the city paid out $21,500 (in order 
simply to avoid litigation that could undoubtedly be won) to an atheist who 
made an equally dubious claim.  (I confess I see no circumstances under which 
the bus driver deserves "accommodation," any more, to return to a much earlier 
discussion, than I would allow a postal worker to refuse to deliver unpalatable 
mail.

I wonder, incidentally, if the ACLJ is making any money off this settlement, or 
do they handle such cases pro bono?

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Monday, April 25, 2011 5:44 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Settlement or extortion?

Art may well be right about insurance counsel.

But to the merits--  Even under TRFRA--where is the substantial burden here?  
The vast majority of Planned Parenthood's services have nothing to do with 
abortion, no one forced him to become a bus driver, and he has no religious 
belief that he need be a bus driver.

This reminds me of the Muslim cab drivers in Minneapolis who refused to pick up 
passengers at the airport who were carrying closed bottles of alcohol (think: 
people bringing wine in from France).  The City at first gave an accommodation 
and then woke up and realized that you cannot have a workable taxi system that 
permits drivers to pick and choose among passengers.  (NY figured that out a 
long time ago)  The case was particularly ironic, because area imams a

RE: Settlement or extortion?

[Sanford Levinson]

Eugene asks a fair question.  I confess I’m not on top of the relevant case law 
(as I suspect he is).  I’m responding as a potential juror or judge who would 
be disinclined to be accommodating in any instance where a substitute could not 
quickly and easily be found to take the place of the claimant.  Indeed, were 
this a USPS case, I wouldn’t allow any accommodation at all with regard to 
someone who refused to deliver, say, The Atheist Monthly, etc.

I am curious what Eugene would advise the city attorney, if asked for a 
disinterested prediction of the odds of victory (before a judge, in order to 
eliminate the wild card of a local jury).

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 25, 2011 6:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

   Sandy:  Can you explain, please, exactly why you think the bus 
driver has a sure loser case, given that nurses who refuse to help with 
abortions – even if just to sterilize the equipment – and IRS agents who refuse 
to deal with abortion-related nonprofits have won their cases?  I’m not saying 
the two cases are indistinguishable; I’m just wondering what distinction is so 
open-and-shut that we should view the case as clearly “dubious” enough to 
justify “outrage.”  Title VII has been read as requiring “reasonable 
accommodation,” sometimes even when that involves refusing to do things that 
would normally be part of one’s job duties (e.g., to show up Saturdays, to help 
in abortions, to help process draft registration forms, etc.).  Maybe that’s an 
excess of modern “antidiscrimination” law, but that seems to be the law.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, April 25, 2011 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Settlement or extortion?

I am curious whether there will be any public outrage about this, in the way 
that I suspect there would be if, say, the city paid out $21,500 (in order 
simply to avoid litigation that could undoubtedly be won) to an atheist who 
made an equally dubious claim.  (I confess I see no circumstances under which 
the bus driver deserves “accommodation,” any more, to return to a much earlier 
discussion, than I would allow a postal worker to refuse to deliver unpalatable 
mail.

I wonder, incidentally, if the ACLJ is making any money off this settlement, or 
do they handle such cases pro bono?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, April 25, 2011 5:44 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Settlement or extortion?

Art may well be right about insurance counsel.

But to the merits--  Even under TRFRA--where is the substantial burden here?  
The vast majority of Planned Parenthood's services have nothing to do with 
abortion, no one forced him to become a bus driver, and he has no religious 
belief that he need be a bus driver.

This reminds me of the Muslim cab drivers in Minneapolis who refused to pick up 
passengers at the airport who were carrying closed bottles of alcohol (think: 
people bringing wine in from France).  The City at first gave an accommodation 
and then woke up and realized that you cannot have a workable taxi system that 
permits drivers to pick and choose among passengers.  (NY figured that out a 
long time ago)  The case was particularly ironic, because area imams announced 
that there is no religious prohibition for Muslims that forbids carrying 
someone else's closed alcohol.

The slippery slope here is really slippery, and should have led defense counsel 
to dig in their heels in my view.  It was none of the driver's business what 
the women were doing.  For all he knew, they were going to PP to protest 
abortion.  Presumably, he would have approved of that, and would have happily 
driven them to carry out that viewpoint.  So what is his "right"?  Does he have 
a right  to question passengers and drop them off at locations where they will 
do that with which he agrees, but to balk if they are going to engage in 
conduct he disapproves of?  It is absurd.

Marci


In a message dated 4/25/2011 6:26:34 P.M. Eastern Daylight Time, 
artspit...@aol.com<mailto:artspit...@aol.com> writes:
I suspect the [Texas] Capital Area Rural Transportation System had liability 
insurance covering this risk and that this case was settled by the insurance 
company's counsel, who could care less about the principles involved, or even 
about the legal merits except insofar as they affect the settlement value of 
the case.  With ACLJ representing the plaintiff, defense counsel reasonably 
would have anticipated having to litigate the case to judgment in the district 
court and then in the 5th Circ

RE: Settlement or extortion?

[Sanford Levinson]

I am curious whether there will be any public outrage about this, in the way 
that I suspect there would be if, say, the city paid out $21,500 (in order 
simply to avoid litigation that could undoubtedly be won) to an atheist who 
made an equally dubious claim.  (I confess I see no circumstances under which 
the bus driver deserves “accommodation,” any more, to return to a much earlier 
discussion, than I would allow a postal worker to refuse to deliver unpalatable 
mail.

I wonder, incidentally, if the ACLJ is making any money off this settlement, or 
do they handle such cases pro bono?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, April 25, 2011 5:44 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Settlement or extortion?

Art may well be right about insurance counsel.

But to the merits--  Even under TRFRA--where is the substantial burden here?  
The vast majority of Planned Parenthood's services have nothing to do with 
abortion, no one forced him to become a bus driver, and he has no religious 
belief that he need be a bus driver.

This reminds me of the Muslim cab drivers in Minneapolis who refused to pick up 
passengers at the airport who were carrying closed bottles of alcohol (think: 
people bringing wine in from France).  The City at first gave an accommodation 
and then woke up and realized that you cannot have a workable taxi system that 
permits drivers to pick and choose among passengers.  (NY figured that out a 
long time ago)  The case was particularly ironic, because area imams announced 
that there is no religious prohibition for Muslims that forbids carrying 
someone else's closed alcohol.

The slippery slope here is really slippery, and should have led defense counsel 
to dig in their heels in my view.  It was none of the driver's business what 
the women were doing.  For all he knew, they were going to PP to protest 
abortion.  Presumably, he would have approved of that, and would have happily 
driven them to carry out that viewpoint.  So what is his "right"?  Does he have 
a right  to question passengers and drop them off at locations where they will 
do that with which he agrees, but to balk if they are going to engage in 
conduct he disapproves of?  It is absurd.

Marci


In a message dated 4/25/2011 6:26:34 P.M. Eastern Daylight Time, 
artspit...@aol.com writes:
I suspect the [Texas] Capital Area Rural Transportation System had liability 
insurance covering this risk and that this case was settled by the insurance 
company's counsel, who could care less about the principles involved, or even 
about the legal merits except insofar as they affect the settlement value of 
the case.  With ACLJ representing the plaintiff, defense counsel reasonably 
would have anticipated having to litigate the case to judgment in the district 
court and then in the 5th Circuit, at a cost undoubtedly far exceeding the 
$21,000 settlement.

You can call that extortion if you want to, but Texas does have a state RFRA, 
and how different is this case from the thousands of lawsuits filed every year 
in which one party settles despite believing that it has a meritorious claim or 
defense, knowing that it faces a determined opponent with a deep pocket?  
Opposing counsel often tell me that my clients' cases have only nuisance 
settlement value.  (Often I prove them wrong.)

By the way, I gather from the news report that this was not the driver of a bus 
on a fixed route that happened to go near Planned Parenthood.  The story says, 
"The system, operated under an agreement among participating counties, offers 
bus service on fixed routes and through requested pickup " and, "After he 
was dispatched to take the women to Planned Parenthood in January, Graning 
called his supervisor “and told her that, in good conscience, he could not take 
someone to have an abortion."

Art Spitzer


In a message dated 4/25/11 5:19:05 PM, 
hamilto...@aol.com writes:


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Settlement or extortion?

[Sanford Levinson]

This just in from the Austin American-Statesman.


Bus driver who refused to take women to Planned Parenthood gets $21K in 
settlement

By Steven 
Kreytak
 | Monday, April 25, 2011, 01:26 PM

This story has been updated since originally posted with comments from Capital 
Area Rural Transportation System General Manager David Marsh.

The Capital Area Rural Transportation System has paid $21,000 to a bus driver 
who was fired for refusing to drive two women to a Planned Parenthood clinic 
last year.

Edwin Graning's lawsuit claimed officials with the nine-county public 
transportation system discriminated against him based on his religion after he 
refused to take the women to Planned Parenthood. Graning was "concerned that he 
might be transporting a client to undergo an abortion," said the lawsuit, which 
was filed last year in U.S. District Court in Austin.

System board members interviewed today said they agreed to settle after 
determining the cost of defending the lawsuit could exceed the settlement 
amount.

The system, operated under an agreement among participating counties, offers 
bus service on fixed routes and through requested pickup for residents in the 
non-urban areas of Travis and Williamson counties and in all of Bastrop, 
Burnet, Blanco, Caldwell, Fayette, Hays and Lee counties.

The lawsuit settlement was approved by the system's board, which is comprised 
of one county commissioner from each member county. A dismissal was filed in 
court this month and the terms of the settlement were obtained by the Austin 
American-Statesman under the Texas Public Information Act.

The settlement bars Graning from seeking employment again with the Capital Area 
Rural Transportation System.

Burnet County Commissioner Ronny Hibler said he believes Graning was rightfully 
fired.

"There's a lot of things as a county commissioner that I don't like, but I do 
it because it's my job," Hibler said.

Blanco County Commissioner Paul Granberg said he does not recall delving into 
the facts of the case when considering the settlement.

"The attorneys that were handling it made the decision basically," Granberg 
said. "They advised the board that it would cost a lot more in attorney fees 
than it would cost to settle."

Capital Area Transportation System General Manager David Marsh said because of 
Graning's case, officials have begun making it clear when drivers are hired 
"that we have a job to do and we don't decide what destinations are."

"I think Mr. Graning was sincere in his beliefs and we never questioned that," 
Marsh said. "It's just that we are ... we are the business of providing 
transportation."

Graning's lawyers from the American Center for Law & Justice, founded by 
evangelical Christian leader Pat Robertson, could not be reached.

Graning, a Kyle resident, is "an ordained Christian minister who is opposed to 
abortion," the lawsuit said.

After he was dispatched to take the women to Planned Parenthood in January, 
Graning called his supervisor "and told her that, in good conscience, he could 
not take someone to have an abortion," his lawsuit said. The women's names, 
their location and the clinic location were not included in the lawsuit. 
Planned Parenthood also provides health care services unrelated to abortion.

His supervisor, who is not named, responded by saying, "Then you are 
resigning," the suit said.

Graning denied he was resigning and was later told to drive his bus back to the 
yard and then was fired, the lawsuit said.
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RE: Snyder v. Phelps

[Sanford Levinson]

The Snyder family's lawyer mooted his case at Harvard last semester, and I was 
one of the "judges" who listened to him.  He was a very pleasant, smart person 
doing the best he could, and we (the "judges") collectively agreed when it was 
over that he'd be lucky to get one vote.  I.e., it really is an easy case, 
unless one wants to upend existing First Amendment doctrine.  I also 
confess-fortunately, I don't think I'm about to be nominated for a confirmable 
(or any other kind of) position :)-- that for me the very essence of other 
First Amendment is that I or some other relic of the '60s could picket Henry 
Kissinger's funera  with a sign expressing a belief that a war criminal is now 
roasting in hell.   (I presume that I could also express such sentiments on 
Balkinization.)   The lawyer, as I recall, suggested constructing a difference 
between "public figure funerals" and "private funerals," but that has obvious 
problems.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, March 03, 2011 3:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: Snyder v. Phelps

Eugene has expressed much more clearly than I did why it I matters that there 
is a "connection" between the signs that may have been directed to particular 
persons and the broader, clearly protected message.

Mark Scarberry
Pepperdine

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, March 03, 2011 1:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Snyder v. Phelps

   It seems to me that the speech in Snyder was speech that was 
both on a broad topic, and used a particular person as an example (and the 
occasion for the speech).  That of course is utterly routine - many news 
stories, for instance, talk about crime, risks to health, government 
misconduct, and so on, using specific incidents as examples and occasions for 
the speech.  And those incidents often involve tragic things happening to 
private persons.  My sense is that such concrete "news hooks" are considered 
necessary in journalisms.

   I don't think that this can be enough to make the speech less 
constitutionally protected.  See, e.g., Florida Star v. B.J.F., where the Court 
concluded that the general story was on a matter of public concern (crime, even 
though it was just a small item on one crime, with no express connection to 
broader discussions), and that this was so even though it used the name of the 
crime victim.  Likewise here, it seems to me.

   The Phelpses believe that God is retaliating against America for 
its sin of tolerating homosexuality, and that this retaliation - including the 
violent death of American soldiers - will continue until we change our 
policies.  That strikes me as a ridiculous position; but it is surely speech on 
a matter of public concern.  And including a specific example of someone who 
died allegedly because of our sins can't, I think, make this speech on a matter 
of private concern any more than focusing on someone who died from lung cancer 
(whether as a result of smoking or second-hand smoke) or from HIV strips a 
broad discussion of the dangers of smoking or sexual promiscuity or anal 
intercourse of its public-concern status.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Thursday, March 03, 2011 10:10 AM
To: Law & Religion issues for Law Academics
Subject: RE: Snyder v. Phelps

I admit to being confused by the emphasis in the Court's opinion on the 
question of whether the speech at issue was a matter of public concern or not. 
The primary issue in the case in my judgment involved targeting and harassment. 
I assume that derogatory statements about a class of people defined by race, 
religion, sexual orientation or other characteristics can be construed to be 
matters of public concern. I have also assumed, however, that such statements 
can be restricted as harassment or made the basis of civil liability if they 
are directed at a targeted individual in an inappropriate manner. The fact that 
someone hates everyone in your class and not just you doesn't transform the 
harassing nature of speech. If Church members had called Snyder at his home 
before and after the funeral and told the grieving Dad "Thank God for dead 
soldiers" or "God Hates you", I think that would have been actionable. It would 
still be actionable if the statements were generalized to say "God hates people 
like you."

Conversely, if I stood up on a soapbox and said that one of my colleague who I 
identified by name was a horrible person and that G-d hated him, and that I 
would be happy if terrible things happened to him, I would think that was 
speech on a matter of private concern, but it would still be fully protected 
speech.

Re: N.J. public transit employee fired for blasphemy

[Sanford Levinson]

I basically agree with Art. As Dworkin argues, it is the very meaning of 
"taking rights seriously" that one is willing to accept very real costs (which 
go beyond simply the cost, however real, of "feeling demeaned" or "insulted"). 
My point was simply that the very likely costs of allowing the burning of 
Korans are considerably higher than those of allowing the burning of flags or, 
to take a non-random example, the costs of allowing truly awful and despicable 
people to picket the funerals of soldiers).

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Thu Sep 16 15:35:13 2010
Subject: Re: N.J. public transit employee fired for blasphemy

Sandy,

I agree.  I should have made my point more clearly, which is that many people 
(like the poster to whom I was responding) seem ready to abandon freedom of 
speech, and other civil liberties, at the thought of "even one death," while 
even thousands of deaths don't cause them to consider prohibiting recreational 
drinking, or 70-mph speed limits, or a host of other social behaviors that 
sometimes cause deaths.

Putting the Constitution entirely aside, doesn't free speech have as much 
social value as a roadside tavern?  Perhaps we should just think of it as a 
risky social behavior -- then we could more easily tolerate the deaths that it 
causes from time to time.  ;-)

Art Spitzer

In a message dated 9/16/10 3:49:55 PM, slevin...@law.utexas.edu writes:

I'll bite: the argument against prohibition is prudential, ie, the social costs 
are too high (as with drugs and, argably, guns), not because there is a 
constititional right to drink or, even after Heller, possess a habdgun outside 
one's home.

Sandy


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Re: N.J. public transit employee fired for blasphemy

[Sanford Levinson]

I'll bite: the argument against prohibition is prudential, ie, the social costs 
are too high (as with drugs and, argably, guns), not because there is a 
constititional right to drink or, even after Heller, possess a habdgun outside 
one's home.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Thu Sep 16 14:26:10 2010
Subject: Re: N.J. public transit employee fired for blasphemy

Many thousands of deaths predictably result from the consumption of alcohol by 
persons who own motor vehicles.  All bars and taverns should therefore be 
closed forthwith.

Art Spitzer

In a message dated 9/16/10 3:07:59 PM, mfailin...@gw.hamline.edu writes:

I am not sure I would not stop the Qur'an burning if I were quite convinced 
even one death would result from suppressing it, even if the "national 
security" rationale is more uncertain and nebulous.



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Re: N.J. public transit employee fired for blasphemy

[Sanford Levinson]

Without necessarily wishing to defend Justiice Breyer's offhand suggestion, 
isn't the obvious difference between flag burning and Koran burning a) the 
predictability of "real" violence, some of it directed against Americans and !
b) severe consequences for basic American national security interests. Anyone 
who finds Scalia's "Americans will die" comment to be a plausible "argument" of 
constititional law should be hesitant to censure Breyer.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Thu Sep 16 11:55:58 2010
Subject: Re: N.J. public transit employee fired for blasphemy

I think Breyer was attempting to demonstrate his approach to constitutional law 
interpretation — thinking out loud to show how he would work through the 
material in an idealized, judgely fashion. He's absorbed in the subject of 
case-by-case adjudication and how "carefully" everything needs to be thought 
about. It was very ivory tower of him not to anticipate how his statement would 
play in the press and with laypersons who jump to read it as tipping his hand 
on what he'd really decide about free speech and Koran-burning.

Ann

On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com 
wrote:

How does burning the Koran differ from burning the flag?  I thought we had been 
through this debate before and find Justice Breyer's comments strange, to say 
the least.

Marci


In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, 
con...@indiana.edu writes:
In an interview with George Stephanopolous, Justice Breyer has suggested that 
burning the Koran conceivably might not be protected by the First Amendment at 
all.  According to Breyer, “Holmes said it doesn’t mean you can shout 'fire' in 
a crowded theater . . . .  Well, what is it?  Why?  Because people will be 
trampled to death.  And what is the crowded theater today?  What is the being 
trampled to death? . . .  It will be answered over time in a series of cases 
which force people to think carefully.”

http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html

Surely this cannot be unprotected speech, can it?  Wouldn’t that amount to a 
global heckler’s veto whenever speech triggers or threatens a sufficiently 
violent reaction?  And wouldn’t such a doctrine effectively reward - and thus 
encourage - such violence or threats thereof?

Dan Conkle

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Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

[Sanford Levinson]

It's entirely question begging to say that the AG "abdicated" his 
responsibility, which is, after all, thanks to Article VI of the US 
Constitution, to be faithful to that Consatitution.

Sandy

- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: steve...@umich.edu ; Law & Religion issues for Law 
Academics 
Sent: Mon Aug 09 15:19:59 2010
Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

The answer is that the State AG abdicated his role and stated the he
believed Prop 8 was unconstitutional.

--Tim 


On 8/9/10 4:05 PM, "steve...@umich.edu"  wrote:

> This goes to an interesting quirk of this case that I've raised on other lists
> before: how is it that the citizens of California came to have the Alliance
> Defense Fund as their attorneys, stepping into the shoes of the State in order
> the formulate and articulate what California's state interests are in
> maintaining marriage discrimination? The formal answer is that the 9th Cir has
> a liberal standard for intervention, gives ballot initiative proponents a
> presumptive right to intervene, and (unlike the 6th cir) doesn't distinguish
> between the interests of such proponents at the ballot stage vs. post
> enactment.  
> 
> Steve Sanders
> 
> Sent via BlackBerry by AT&T
> 
> -Original Message-
> From: "Volokh, Eugene" 
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Mon, 9 Aug 2010 12:52:58
> To: Law & Religion issues for Law Academics
> Reply-To: Law & Religion issues for Law Academics 
> Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs
> 
> ___
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Timothy J. Tracey
Assistant Professor of Law
Ave Maria School of Law
1025 Commons Circle
Naples, FL  34119
Tel:  (239) 687-5391
Fax:  (239) 353-3173
www.avemarialaw.edu




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Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

[Sanford Levinson]

An extremely basuc question: who exactly will be appealing? Surely not the 
Attorney General or, seemingly, the defendant governor. And, even more surely, 
not the plaintiffs. I apologize for asking such a dumb question, but inquiring 
minds want to know

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Mon Aug 09 10:58:12 2010
Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

Of course, the courts had no problem with this type of discrimination when it 
outlawed polygamy and took the assets of the Mormon church.  :-)

On 8/9/2010 8:12 AM, Steve Sanders wrote:
Well, it was a finding of fact (suppored by evidence) in this particular case, 
not a legal holding.  Moreover, the context is the plaintiffs' arguments that 
Prop 8 was inappropriately enacted in part on the basis of religious beliefs; 
not that religious beliefs were part of the debate, which is of course 
acceptable, but rather that Prop 8 effectively enacts religious doctrine in 
order to abridge 14th Amendment rights.  No one familiar with Prop 8 -- least 
of all its proponents -- thought it was merely about some sort of secularly 
motivated discrimination.  So I don't see that the judge could or should have 
simply avoided the question.  Even if such a finding of fact were problematic 
for free exercise, as Will suggests, the enactment of religiously motivated 
discrimination seems to me more problematic from the standpoint of 
establishment.



--
Lisa A. Runquist
Runquist & Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com




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RE: A question about the "must give religious exemptions to the same extent as secular exemptions" theory

[Sanford Levinson]

Frankly, I think that an employer would be crazy to adopt the “good cause” or 
even “extraordinary circumstances” standard, since it is an open invitation to 
acrimonious litigation.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Tuesday, May 11, 2010 3:39 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

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  wrote:

From: Sanford Levinson 
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" 
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  wrote:

From: Volokh, Eugene 
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'" 
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.
Purpo

RE: A question about the "must give religious exemptions to the same extent as secular exemptions" theory

[Sanford Levinson]

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  wrote:

From: Volokh, Eugene 
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'" 
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 

RE: A real-life on-campus example

[Sanford Levinson]

Doug may very well be right, but I must say that plowing through the oral 
argument didn't highlight the difference between CLS and, say, the Young 
Democrats.  If Hastings is indeed selecting out religious groups for special 
"all comers" non-discrimination with regard to eligibility for leadership 
positions, then I agree it's a no brainer.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, May 11, 2010 12:01 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

CLS does not claim that it should be treated differently from political groups. 
 Hastings' written rule treated religious groups differently, because it 
prohibited religious discrimination but did not prohibit political 
discrimination. The only groups that could not organize around a viewpoint were 
religious group.  It's all comers rule is egregiously unconstitutional as to 
political groups as well as to religious groups.

Quoting Sanford Levinson :

> I can't figure out exactly why religious groups deserve to be treated
> differently from, say, the young Democrats or Republicans or the
> Sierra Club.  The Constitution says not that we have to treat
> religion differently, but, rather, that we have to keep engaging in
> an endless conversation about the interplay of religion and state.
> Sometimes that might require "different" treatment, as in
> accommodating people who are unwilling to work on Saturday.  Note,
> though, that the Court, rightly or wrongly, refused to extend the
> "conscientious objector" accommodation to a serious Catholic who was
> opposed only to the Vietnam War (on "just war" grounds).  Nor, of
> course, was the Court generous to Native Americans either in Lyng or
> Smith, both of which, I have to say, seemed more appealing, on their
> facts, than the CLS case. But none of these cases really involved the
> "freedom of association" arguments that are really at the heart of
> the argument.
>
> Am I correct, incidentally, that the principle being advocated for
> would allow any religious society to restrict its leadership to males
> if it had a religious principle that only men were fit for such
> roles?  Judge (now Professor) McConnell seemed to emphasize the
> belief-status distinction in his argument, but I'm not sure I
> understand it when the justification for status discrimination is a
> sincere (and quite traditional, often) religious belief.  The
> argument that "we, as a society" have decided that race and
> sex/gender are just different from other categories of
> differentiation certainly can't hold, at least for the latter, since
> I'm confident that McConnell (and, I suspect, almost everybody on
> this list) would not allow a Title VII-like action against the
> Catholic Church or Orthodox Judaism or even strip those religions of
> their tax exemption because of their blatant sexism.
>
> Having read the oral argument, incidentally, I do wonder if there
> will be an effort simply to dismiss it as improvidently granted,
> given that most of the time seemed to have been spent on trying to
> figure out what exactly were the facts and the relationship between
> various stipulations and "written policies" of the Law School.
>
> sandy
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A.
> Runquist
> Sent: Tuesday, May 11, 2010 11:29 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: A real-life on-campus example
>
>
> On 5/10/2010 8:21 PM, Steven Jamar wrote:
>> Religion and religious organizations are different from other
>> organizations.  The constitution says we need to treat religion
>> differently.  Unless we decide that speech and association and equal
>> treatment principles trump the religion clauses, we need to give them
>> effect somehow -- both the free exercise and establishment clauses.
>>
> And the constitution does not say that religious organizations are to be
> treated worse than all other groups.  The government cannot establish
> religion, but it also cannot prohibit the free exercise of religion.
> Yet that, it seems to me, is exactly what the college is trying to do here.
>
>> What would be the result if the university made an exception for
>> religious organizations -- then it is not treating the religious
>> organization equally.
> As long as all religious organizations are treated the same way, then
> there is no violation.  If, for example, it allowed CLS to meet but
> prohibited a Muslim group from meeting, then this would be not treating
> the religious organizat

RE: A real-life on-campus example

[Sanford Levinson]

I can't figure out exactly why religious groups deserve to be treated 
differently from, say, the young Democrats or Republicans or the Sierra Club.  
The Constitution says not that we have to treat religion differently, but, 
rather, that we have to keep engaging in an endless conversation about the 
interplay of religion and state.  Sometimes that might require "different" 
treatment, as in accommodating people who are unwilling to work on Saturday.  
Note, though, that the Court, rightly or wrongly, refused to extend the 
"conscientious objector" accommodation to a serious Catholic who was opposed 
only to the Vietnam War (on "just war" grounds).  Nor, of course, was the Court 
generous to Native Americans either in Lyng or Smith, both of which, I have to 
say, seemed more appealing, on their facts, than the CLS case. But none of 
these cases really involved the "freedom of association" arguments that are 
really at the heart of the argument.  

Am I correct, incidentally, that the principle being advocated for would allow 
any religious society to restrict its leadership to males if it had a religious 
principle that only men were fit for such roles?  Judge (now Professor) 
McConnell seemed to emphasize the belief-status distinction in his argument, 
but I'm not sure I understand it when the justification for status 
discrimination is a sincere (and quite traditional, often) religious belief.  
The argument that "we, as a society" have decided that race and sex/gender are 
just different from other categories of differentiation certainly can't hold, 
at least for the latter, since I'm confident that McConnell (and, I suspect, 
almost everybody on this list) would not allow a Title VII-like action against 
the Catholic Church or Orthodox Judaism or even strip those religions of their 
tax exemption because of their blatant sexism.   

Having read the oral argument, incidentally, I do wonder if there will be an 
effort simply to dismiss it as improvidently granted, given that most of the 
time seemed to have been spent on trying to figure out what exactly were the 
facts and the relationship between various stipulations and "written policies" 
of the Law School.  

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist
Sent: Tuesday, May 11, 2010 11:29 AM
To: religionlaw@lists.ucla.edu
Subject: Re: A real-life on-campus example


On 5/10/2010 8:21 PM, Steven Jamar wrote:
> Religion and religious organizations are different from other 
> organizations.  The constitution says we need to treat religion 
> differently.  Unless we decide that speech and association and equal 
> treatment principles trump the religion clauses, we need to give them 
> effect somehow -- both the free exercise and establishment clauses.
>
And the constitution does not say that religious organizations are to be 
treated worse than all other groups.  The government cannot establish 
religion, but it also cannot prohibit the free exercise of religion.  
Yet that, it seems to me, is exactly what the college is trying to do here.

> What would be the result if the university made an exception for 
> religious organizations -- then it is not treating the religious 
> organization equally. 
As long as all religious organizations are treated the same way, then 
there is no violation.  If, for example, it allowed CLS to meet but 
prohibited a Muslim group from meeting, then this would be not treating 
the religious organizations equally.

Lisa

-- 
Lisa A. Runquist
Runquist&  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com



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Re: Comparative Law of Religious Liberty

[Sanford Levinson]

We should definitely include Gary's book in the review issue.  I don't think 
Ran's book will be out until next year.

Sandy

- Original Message -
From: religionlaw-boun...@lists.ucla.edu 
To: religionlaw@lists.ucla.edu 
Sent: Sun Oct 04 17:33:14 2009
Subject: Re: Comparative Law of Religious Liberty

Ran Hirschl and Gary Jacobsohn have new books coming out on this subject.  They 
are excellent.

>>> Rick Duncan  10/04/09 4:51 PM >>>
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)





  
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RE: Wisconsin convicts parents for denial of medical treatment

[Sanford Levinson]

Wouldn't Cathleen's argument also apply to the relationship between
smoking and cancer, given that one cannot predict with certainty that
any given smoker will in fact come down with lung cancer?  

 

sandy

 



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Dr. Cathleen A.
Mann
Sent: Wednesday, August 05, 2009 10:44 AM
To: Law & Religion issues for Law Academics
Subject: Re: Wisconsin convicts parents for denial of medical treatment

 

Yes, but what is being said is that there is a direct connection between
childhood abuse and later criminal behavior.  There is also an
assumption that there is science to 'prove' this when there is not.  I
would very much like to see the brief you mentioned in one of your
earlier posts.  If you can send it to me or point me to it somewhere, I
would like to read it.I am open to being educated and proven wrong.

Cathleen A. Mann, Ph.D
1880 S. Pierce St. Unit 7
Lakewood, CO 80232
(303) 934-2828
Secure Fax: (303) 934-2892

This email is the intellectual property of the author.
Please do not forward in whole or in part without first obtaining
the express permission of the author.


- Original Message -
From: hamilto...@aol.com
To: religionlaw@lists.ucla.edu
Sent: Wednesday, August 5, 2009 9:18:30 AM GMT -07:00 US/Canada Mountain
Subject: Re: Wisconsin convicts parents for denial of medical treatment




Cathleen--   No one on this list to my knowledge is claiming that there
is a sure way to make predictions regarding any particular individual.
Your persistence in making that argument is off-point.  In any event,
there are a lot of MDs and PhDs out there at Harvard, Yale, Stanford,
etc., etc., that would find your blanket attacks on the studies
regarding the effects of abuse very odd and unsupportable.

 

Marci

 




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Re: Using religion for government purposes

[Sanford Levinson]

It seems to me that anyone who supports the constitutional legitimacy of 
"prophylactic rules" should find the "actual use" of religion highly relevant. 
Better to suppress a future Lincoln than to give a green light to 
faux-religious politicos.

Sandy



From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Fri Mar 27 11:51:06 2009
Subject: RE: Using religion for government purposes 


Whether or not that distinction is sound as an empirical matter – 
and, given the tradition of using religious invocations for ceremonial 
purposes, for national mourning, and other similar reasons, it’s hard to see 
all or most political use of religious talk as “crassly instrumental [and] 
low-political” – I take it that this is not a distinction that constitutional 
law can easily draw, no?

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Friday, March 27, 2009 9:37 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Using religion for government purposes

 

May I respectfully suggest that one difference between Lincoln and perhaps) all 
of his successors is that he was a profoundly serious man who was not using 
religion for crassly instrumental low-political purposes.

Sandy

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Re: Using religion for government purposes

[Sanford Levinson]

May I respectfully suggest that one difference between Lincoln and perhaps) all 
of his successors is that he was a profoundly serious man who was not using 
religion for crassly instrumental low-political purposes.

Sandy



From: religionlaw-boun...@lists.ucla.edu 
To: Law & Religion issues for Law Academics 
Sent: Fri Mar 27 11:18:32 2009
Subject: RE: Using religion for government purposes 


It seems to me that no endorsement theory can be considered credible if it 
cannot be squared with the powerful invocation of religious ideas in Lincoln's 
Second Inaugural Address. Somehow it seems wrong to describe what Lincoln did 
as "using" religion. Perhaps it would be better to say that the religious ideas 
(or God) used Lincoln. Here it is, quotations from the Bible and all (from 
bartleby.com/124/pres32.html):
 
 
Fellow-Countrymen: 

  AT this second appearing to take the oath of the Presidential office there is 
less occasion for an extended address than there was at the first. Then a 
statement somewhat in detail of a course to be pursued seemed fitting and 
proper. Now, at the expiration of four years, during which public declarations 
have been constantly called forth on every point and phase of the great contest 
which still absorbs the attention and engrosses the energies of the nation, 
little that is new could be presented. The progress of our arms, upon which all 
else chiefly depends, is as well known to the public as to myself, and it is, I 
trust, reasonably satisfactory and encouraging to all. With high hope for the 
future, no prediction in regard to it is ventured. 1   
  On the occasion corresponding to this four years ago all thoughts were 
anxiously directed to an impending civil war. All dreaded it, all sought to 
avert it. While the inaugural address was being delivered from this place, 
devoted altogether to saving the Union without war, urgent agents were in the 
city seeking to destroy it without war—seeking to dissolve the Union and divide 
effects by negotiation. Both parties deprecated war, but one of them would make 
war rather than let the nation survive, and the other would accept war rather 
than let it perish, and the war came.2  
  One-eighth of the whole population were colored slaves, not distributed 
generally over the Union, but localized in the southern part of it. These 
slaves constituted a peculiar and powerful interest. All knew that this 
interest was somehow the cause of the war. To strengthen, perpetuate, and 
extend this interest was the object for which the insurgents would rend the 
Union even by war, while the Government claimed no right to do more than to 
restrict the territorial enlargement of it. Neither party expected for the war 
the magnitude or the duration which it has already attained. Neither 
anticipated that the cause of the conflict might cease with or even before the 
conflict itself should cease. Each looked for an easier triumph, and a result 
less fundamental and astounding. Both read the same Bible and pray to the same 
God, and each invokes His aid against the other. It may seem strange that any 
men should dare to ask a just God's assistance in wringing their bread from the 
sweat of other men's faces, but let us judge not, that we be not judged. The 
prayers of both could not be answered. That of neither has been answered fully. 
The Almighty has His own purposes. "Woe unto the world because of offenses; for 
it must needs be that offenses come, but woe to that man by whom the offense 
cometh." If we shall suppose that American slavery is one of those offenses 
which, in the providence of God, must needs come, but which, having continued 
through His appointed time, He now wills to remove, and that He gives to both 
North and South this terrible war as the woe due to those by whom the offense 
came, shall we discern therein any departure from those divine attributes which 
the believers in a living God always ascribe to Him? Fondly do we hope, 
fervently do we pray, that this mighty scourge of war may speedily pass away. 
Yet, if God wills that it continue until all the wealth piled by the bondsman's 
two hundred and fifty years of unrequited toil shall be sunk, and until every 
drop of blood drawn with the lash shall be paid by another drawn with the 
sword, as was said three thousand years ago, so still it must be said "the 
judgments of the Lord are true and righteous altogether."   3  
  With malice toward none, with charity for all, with firmness in the right as 
God gives us to see the right, let us strive on to finish the work we are in, 
to bind up the nation's wounds, to care for him who shall have borne the battle 
and for his widow and his orphan, to do all which may achieve and cherish a 
just and lasting peace among ourselves and with all nations.   
 
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RE: JOHN LOFTON / Question, Please -- Jurors....

[Sanford Levinson]

I suppose the "technical legal question" could revolve around the
propriety of asking any potential juror who gives evidence of being
"deeply religious" (whatever exactly that means) if he/she is willing to
enforce laws (and put people in prison) even if he/she believes that the
law is not only unjust, but, more to the present point, "un-Godly, i.e.,
a violation of what the potential juror believes is the epistemically
knowable Divine command with regard to behavior?  Shameless
self-promotion:  I've recently written about our seeming incapacity to
have an intelligent public conversation about the relevance of religious
commitments to considering potential nominees to the federal judiciary,
see
http://www.stthomas.edu/law/programs/journal/Volume4num2/Levinson_Is_It_
Possi.pdf  I do not see why a strongly Catholic nominee who might fear
being denied communion for running afoul of the Church's basic tenets
should not asked if he/she is willing to enforce Casey in spite of
his/her apparent belief (perhaps based on public statements, as with
Judge Pryor) that abortion is indeed a violation of God's law?  And I
suppose I'd be interested, these days, in whether a candidate for
president (or VP) is a "Christian Zionist" who believes that we have
special duties to Israel because of its ostensible sacred status.
Perhaps we've already had a sufficient number of such discussions in the
past, but that is a quite different objection from the one that such
questions are "unhelpful" to persons who are part of the list.

 

sandy

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, April 24, 2008 3:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: JOHN LOFTON / Question, Please -- Jurors

 

Folks:  Please let's focus on technical legal discussions of the
questions of the law of government and religion.  If someone wants to
tie these questions to Torcaso v. Watkins, or for that matter to other
legal principles, that's great.  But discussions at this level of
abstraction, with no tie to concrete legal matters, is not helpful on
the list.

 

The list custodian

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of JOHN LOFTON
Sent: Thursday, April 24, 2008 1:37 PM
To: religionlaw@lists.ucla.edu
Subject: JOHN LOFTON / Question, Please -- Jurors

Are they to be judges only of "the facts" or also "the law"? And
if not "the law," sez who? What is a juror to do if he believes law is
unjust -- un-Godly, un-Constitutional?

 

John Lofton, Editor, TheAmericanView.com
Recovering Republican

"Accursed is that peace of which revolt from God is the bond,
and blessed are those contentions by which it is necessary to maintain
the kingdom of Christ." -- John Calvin.





Plan your next roadtrip with MapQuest.com
 : America's #1
Mapping Site. 

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RE: Romney Delivers Important Speech On His Religious Beliefs

[Sanford Levinson]

Isn't there a fairly obvious contradiction between an ostensibly
principled refusal to discuss any theological doctrine associated with
Mormonism and Romney's ostentatious proclamation that he (and presumably
Mormonism) considers "Jesus Christ is the Son of God and the Savior of
mankind"?  Is sit now legitimate to ask if those who don't believe that
Jesus was "the Son of God" are saved?  Or does the salvation take place
independently of how one conceives Jesus?  Isn't this like a witness on
the stand answering only the question he wishes to and then taking the
Fifth (or the First, or the No Test Oath) when the answer might be
counterproductive?
 
sandy



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Friedman,
Howard M.
Sent: Thursday, December 06, 2007 11:45 AM
To: religionlaw@lists.ucla.edu
Subject: Romney Delivers Important Speech On His Religious Beliefs


Republican Presidential candidage Mitt Romney delivered an important and
interesting speech this morning on the role of his religious faith in
any future presidency. Excerpts and links to the full speech and other
material are at Religion Clause blog:
http://religionclause.blogspot.com/2007/12/romney-delivers-major-speech-
on-role-of.html
 
Howard M. Friedman
Professor of Law Emeritus
University of Toledo
(419) 530-2911
[EMAIL PROTECTED]  
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RE:Market-protecting chaplains and the First Amendment

[Sanford Levinson]

There is a fascinating story in today's NYTimes,
http://www.nytimes.com/2007/09/13/movies/13dhar.html?ref=arts&pagewanted
=print, about a documentary on an Alabama prison whose lifer inmates
engaged in a Buddhist meditation program.  It was a voluntary program,
so I assume there are no First Amendment problems (though I'd obviously
be very interested if anyone disagrees).  What is relevant to our group
is the following:
 
  

No one thought these guys could tolerate a 10-day meditation course,"
Ms. Phillips said in a phone interview. But the prisoners did more than
tolerate it.

"We were finding that after this 10-day course, inmates were better able
to control their anger and better able to conduct themselves," said Dr.
Ron Cavanaugh, director of treatment at the Alabama Department of
Corrections, who worked with Ms. Phillips to bring Vipassana meditation
to Donaldson. "The initial group had about a 20 percent reduction in
their disciplinary histories." After the course ended and the film crew
returned to Massachusetts, the Dhamma brothers continued meditating
daily, with a longer sitting once a week.

But months later, in July 2002, they received word that they would no
longer be allowed to sit, and Ms. Phillips would no longer be allowed to
film. 

"The chaplain had reservations about inmates turning into Buddhists and
losing his congregation," Dr. Cavanaugh said. "He called the
commissioner; the commissioner called the warden and told the warden to
shut down the program."

 

Is there any conceivable constitutional defense of the Corrections
system capitulating to the "reservations" of the chaplain, who seems
motivated by nothing else than a fear that he was about to lose some
market share.  (Would it be any better if he feared that the inmates
would lose their prospect for eternal salvation by forsaking
Christianity in favor of Buddhism?)  As it happens, after four years,
the Department changed its mind, and the documentary that is the focus
of the story thus has a "happy" ending.  And, query, would anyone have
standing to sue for damages (and what would they be?) for the
unconstitutional four-year hiatus caused by the unconstitutional
capitulation?

sandy

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RE: "Mormon Student, Justice, ACLU Join Up"

[Sanford Levinson]

Is it "close-minded" to say that one is simply mystified by the notion of 
"revealed" religion, whether the reference is to the (purported) experience at 
Sinai, the "annunciation" to Mary, or the dictation of the Koran to Mohammed?  
I suppose I'm "open-minded" enough to say that "although I see no reason to 
think so, perhaps at the end of time we will discover that these things really 
happened" rather than "this is all complete and utter nonsense," but in the 
meantime I do not credit arguments in which revelation is offered as an 
independent reason for doing (or not-doing) X.  Isn't this what makes free 
exerecise debates so difficult, that one cannot offer convincing reasons (other 
than a hermeneutics of suspicion) to reject the claim of someone who believes 
that smoking marijuana is essential to religious salvation even as we accept 
the claim of someone else to an exemption from an otherwise general and 
non-intentionally-discriminatory law because of its impingement on religious 
freedom?  Chief Justice Burger's comment in Thomas that "bizarre" religious 
views might justifiably be rejected has no purchase for those who view most 
religious claims as touching on the "bizarre."  By and large, it simply acts as 
a marker between older and established religions (even those, like LDS and the 
Jehovah's Witnessess, which were founded in the 19th century) and newcomers.  
(Just for the record, I supported RFRA and believe tha Boerne was wrongly 
decided.)  
 
sandy



From: [EMAIL PROTECTED] on behalf of Conkle, Daniel O.
Sent: Fri 9/7/2007 9:15 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student, Justice, ACLU Join Up"


With apologies for the self-serving plug, I've written in some sympathy with 
what I take to be David's position, suggesting that, indeed, there are 
important similarities between certain types of closed-minded religious 
believers and certain types of closed-minded secularists.  Under the framework 
I suggest, the most important difference between the two competing perspectives 
is what falls within the zone of permissible argument/discourse/source of truth 
and what falls outside it:
 
Daniel O. Conkle, "Secular Fundamentalism, Religious Fundamentalism, and the 
Search for Truth in Contemporary America," 12 Journal of Law and Religion 
337-70 (1995-96) (also available in Law and Religion: A Critical Anthology 
(Stephen M. Feldman, ed.; NYU Press 2000) and at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=911647) 
 
Daniel O. Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
*** 

 



From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn
Sent: Friday, September 07, 2007 9:32 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student, Justice, ACLU Join Up"


I believe this distinction to be incorrect.  Both atheists and evangelicals 
adhere to particular ideological perspectives.  The atheist, as you posit him 
or her, does not believe in god because god cannot be proven by empirical means 
(i.e. "sufficient evidence.")  True.  But that assumes that science can either 
prove or disprove god.  That is like saying science (in the hard, empirical, 
lab-experimental sense) can prove or disprove love or morality or some other 
complex social phenomena.  It is not enough to say that the default in the 
absence of proof must be disbelief.  At best it should be agnosticism at 
something that is posited to exist outside of the materialist paradigm.  That 
is not the position atheists like Dawkins take.
 
I should add, my posts are not directed at an abstract, theoretical atheist, 
but rather at the public discourse surounding the neo-atheists (Harris, 
Dawkins, etc.)
 
David







From: [EMAIL PROTECTED]
Date: Fri, 7 Sep 2007 07:57:10 -0400
Subject: Re: "Mormon Student, Justice, ACLU Join Up"
To: religionlaw@lists.ucla.edu


David E. Guinn wrote:
 
Third, to say atheists are not evangelical ignores the passion and 
furor around Harris, Dawkins, Hutchens et. al. and the best selling books they 
have written.
 
 
The distinction between evangelism and atheism should not be 
collapsed because both exhibit "passion" or that there is "furor" surrounding 
the work of some atheists.  The distinction is that the former eschews the kind 
of evidence that everyone, including evangelicals, rely upon in everyday 
dealings, personal and professional relationships, business, politics, and of 
course science. A principled, thoughtful atheist will renounce his or her 
position when confronted with sufficient evidence.  

RE: "Mormon Student"

[Sanford Levinson]

So let me review the bidding:  Someone who wants to engage in a year of 
"community service" spreading the word about the Ku Klux Klan is entitled to 
take the year off (to say no would be to engage in forbidden viewpoint 
discrimination), but a student who invoked the 5th Commandment to take off a 
year to take care of one's infirm parents would not.  If the latter student is 
given the leave, then why wouldn't violate the EP clause to refuse the year off 
to a secular student who wants to take care of parents.  And, by this time, 
aren't we effectively saying to any scholarship recipient that "you can take 
off a year (or, as with Mormon students, two years) off for any reason at all"?
 
Given that any self-respecting university engages in viewpoint discrimination 
all the time in constructing curricula and grading papers, would it be 
illegitimate for a university to refuse a leave in order to study astrology on 
the grounds that it is a bogus field that in no way contributes to a student's 
intellectual growth.  (Studying the history of astrology as a belief system 
would be something else, of course.)  
 
Paul is unusually tactful in his argument regarding religion.  Surely there are 
some religions that strike any secular rationalist as "irrational."  That 
people I respect have all sorts of religious views doesn't translate into my 
finding it "rational" to have at least some of them.  That's what "leaps of 
faith" are all about.  One should recall Tertullian, who, I believe, said 
(something like) "I believe because it is absud."  As to (classical) Mormon 
theology, incidentally, I strongly recommend Richard Bushman's superb biography 
of Joseph Smith.  Bushman is a practicing Mormon and an excellent historian by 
any criteria.  With regard to the translation of the Golden Plates (assuming 
their existence in the first place), one must indeed make all sorts of leaps of 
faith.  This is no less true, of course, with regard to many aspects of Judaism 
and Christianity.  
 
sandy



From: [EMAIL PROTECTED] on behalf of Brownstein, Alan
Sent: Thu 9/6/2007 12:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student"


I agree with Mark's response -- if an exemption is provided for secular 
expressive activities, there is no free speech issue created by granting a 
similar exemption for religious expressive activities. Indeed, under current 
authority, granting the exemption may be required by the free speech clause 
even if it is not required by the free exercise clause.
 
Alan Brownstein



From: [EMAIL PROTECTED] on behalf of Scarberry, Mark
Sent: Wed 9/5/2007 9:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student"


Alan raises a good point but I think we should not assume that the term 
community service (as applied by the state in deciding whether to grant a leave 
of absence) necessarily is limited to "good works" of the kind Alan probably 
has in mind. 
 
To the extent community service is a permitted ground for a leave of absence, 
one might ask whether community service of the community organization variety 
or consciousness raising variety or advocacy variety (e.g., for an 
environmental cause) is included. If so there should be no basis for excluding 
religious activities that are similar.
 
Mark S. Scarberry
Professor, Pepperdine University School of Law
Robert M. Zinman Scholar in Residence, American Bankruptcy Institute (Fall 2007)



From: [EMAIL PROTECTED] on behalf of Brownstein, Alan
Sent: Wed 9/5/2007 3:00 PM
To: Law & Religion issues for Law Academics
Subject: RE: "Mormon Student"



Fred's comment (and, by the way, Hi Fred, nice to have you back
contributing to the list, even if it is only on a very occasional
basis), made me think of a question that had been in the back of my mind
since this thread began.

I don't know if it is possible to answer this question with any degree
of accuracy, but how much of a Mormon mission is dedicated to, for want
of a better term, we might describe as good works and how much is
dedicated to spreading the faith or proselytizing missionary work. The
reason I ask is that while both types of a religious mission may
constitute the exercise of religion, it is harder to justify an
exemption for religious activities that are primarily expressive and
more to the point expressive in the sense that one is trying to persuade
an audience of people outside the faith to change their ideas and
beliefs. Creating exemptions for religious speech in situations where
similar exemptions for secular expressive activities are not available
raises free speech concerns about viewpoint discrimination.

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Fred Gedicks
Sent: Wednesday, September 05, 2007 2:31 PM
To: religionlaw@lists.ucla.edu
Subject: "Mormon Student"

It's been lit

Re: "Mormon Student, Justice, ACLU Join Up"

[Sanford Levinson]

Although I always hesitate to disagree with my (sadly) former cilleague Doug, I 
confess I'm with Eugene (and, I think, Michael McConnell, on the basis of past 
threads), on this one.  I see no relevant difference between going to Mongolia 
to spread the word about the Book of Mormon and a belief that the best way to 
honor thy parents is by making sure they have adequate medical care, which 
means raking in enough money to buy them decent insurance.  And, of course, if 
one allows the religiously motivated caretaking, I think it violates the EP 
Clause to deny equal leaves to an atheist who for secular moral reasons feels 
an obligation to take care of her parents.  

Consider these arguments within the context of a departmental requirement that 
a PhD must be completed within seven years.  Would the fact that the department 
waives the rule for parents (both mothers and fathers) for up to one 
year/newborn or for deaths of near family members or domestic partners require 
waiver for the Mormon missionary?  And if so, why not for anyone who persuades 
a judge of "good cause" for wishing an extra couple of years?

Sandy
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Re: "Mormon Student, Justice, ACLU Join Up"

[Sanford Levinson]

Doesn't the question boil down to whether the school can put ANY restraints on 
the desire to take a couple of years off?  If, argendo, it can, then I don't 
understand why the Mormon gets special solicitude, given that it's not an 
obligation, as distinguished from Sherbert.  Whether the school's policy is 
wise is a separate question. 

Sandy
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RE: Church is not an option

[Sanford Levinson]

Some people believe that the gag rule violated the First Amendment Free Speech 
Clause.  If it didn't, then I don't see what is added by invoking either the 
Free Exercise or, even more dubiously, the Establishment Clause.  How is the 
state establishing a religion by saying that it chooses, as a matter of public 
policy, to maintain a "wall of separation" between public programs and the 
giving of religion-related information.  I take it that one of the things that 
Locke v Davey stands for, for better or worse, is that the state continues to 
have a great deal of discretion in how much it will allow the interpenetration 
of religion and public programs. 
 
sandy



From: [EMAIL PROTECTED] on behalf of Scarberry, Mark
Sent: Sun 8/19/2007 3:50 PM
To: Law & Religion issues for Law Academics
Subject: RE: Church is not an option


The abortion gag rule did not violate the Establishment Clause. 
 
There also is a difference between the free speech and free ex rights of 
students, on the one hand, and the rights of govt employees or government 
contractors, on the other. I think, though, in this case the plaintiff may best 
be seen as essentially an employee. That makes the Est. Clause argument the 
key. I wonder whether the plaintiff pled a violation of the Establishment 
Clause? 
 
Mark Scarberry
Pepperdine



From: [EMAIL PROTECTED] on behalf of Sanford Levinson
Sent: Sun 8/19/2007 12:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Church is not an option


I'm very sympathetic to the student in this case (assuming there are no 
surprises in the facts as they come out), but I do think that the Rust v. 
Sullivan chickens may be coming home to roost in this case.  If the doctor had 
no first amendment right to mention abortion, why in the world would the 
student have a FE or even a FA right to mention church groups in the face of a 
policy to the contrary.  To be sure, such a policy is indefensibly stupid, but 
why is it also unconstitutional, assuming the abortion gag rule is perfectly 
all right as a constitutional matter.  
 
sandy



From: [EMAIL PROTECTED] on behalf of Steven Jamar
Sent: Sun 8/19/2007 11:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Church is not an option


Not a model of lucidity -- probably not so lucid in the pleadings either. 


But back to the facts -- does this student/employee have free exercise claim?  
The compulsion element (to the extent it really is an element) does indeed seem 
to be lacking.

Like Mark says, I'm drawn to the establishment claim on this -- and on that 
grounds it seems quite clear the school is not being neutral.

To shift the grounds a bit:  Can the school have an MSW-only counseling rule?  
It is a school for a masters of social work.  Even if it is guild-motivated to 
maintain income (if the policy was refer only to social workers the de 
facto message of most MSW programs I've ever heard of would that be 
ok?), isn't that a generally applicable neutral policy?  

They would not be stopping a counselor from using religion in the counseling 
session.

Steve



On Aug 19, 2007, at 12:25 PM, Scarberry, Mark wrote:


The analyses in the various opinions puzzle me. Assuming the policy of 
prohibiting mention of religious bereavement counseling options was set up by a 
state actor, why doesn't that policy violate the Establishment Clause? It's 
principal effect seems to be to inhibit religion. Here the client had indicated 
a religious commitment; to require the employee/student to ignore that 
information and to not even mention the possibility of religious bereavement 
counseling is actively hostile to religion. In effect it sets up a secular 
orthodoxy in dealing with a matter that for thousands of years has been an 
important part of religious practice.

If the policy is impermissible under the Establishment Clause, then 
Pickering test would not be applicable with respect to disciplining the 
employee/student for violation of the policy; perhaps it would be better to say 
that there would be no need to discuss the employee/student's Free Speech 
rights, and thus Pickering would be irrelevant. In addition, all the discussion 
about whether the employee/student had a religious belief requiring that he 
mention the religious bereavement option would be unnecessary, because there 
would be no need to engage in a Free Exercise analysis.

Mark Scarberry
Pepperdine



From: [EMAIL PROTECTED] on behalf of Joel Sogol
Sent: Fri 8/17/2007 12:07 PM
To: religionlaw@lists.ucla.edu
Subject: Church is not an option



Student dismissed from practicum for recommending church as an option 
for bereavement counseling?



http://www.ca11.uscourts.gov/opinions/ops/

RE: Church is not an option

[Sanford Levinson]

I'm very sympathetic to the student in this case (assuming there are no 
surprises in the facts as they come out), but I do think that the Rust v. 
Sullivan chickens may be coming home to roost in this case.  If the doctor had 
no first amendment right to mention abortion, why in the world would the 
student have a FE or even a FA right to mention church groups in the face of a 
policy to the contrary.  To be sure, such a policy is indefensibly stupid, but 
why is it also unconstitutional, assuming the abortion gag rule is perfectly 
all right as a constitutional matter.  
 
sandy



From: [EMAIL PROTECTED] on behalf of Steven Jamar
Sent: Sun 8/19/2007 11:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Church is not an option


Not a model of lucidity -- probably not so lucid in the pleadings either. 


But back to the facts -- does this student/employee have free exercise claim?  
The compulsion element (to the extent it really is an element) does indeed seem 
to be lacking.

Like Mark says, I'm drawn to the establishment claim on this -- and on that 
grounds it seems quite clear the school is not being neutral.

To shift the grounds a bit:  Can the school have an MSW-only counseling rule?  
It is a school for a masters of social work.  Even if it is guild-motivated to 
maintain income (if the policy was refer only to social workers the de 
facto message of most MSW programs I've ever heard of would that be 
ok?), isn't that a generally applicable neutral policy?  

They would not be stopping a counselor from using religion in the counseling 
session.

Steve



On Aug 19, 2007, at 12:25 PM, Scarberry, Mark wrote:


The analyses in the various opinions puzzle me. Assuming the policy of 
prohibiting mention of religious bereavement counseling options was set up by a 
state actor, why doesn't that policy violate the Establishment Clause? It's 
principal effect seems to be to inhibit religion. Here the client had indicated 
a religious commitment; to require the employee/student to ignore that 
information and to not even mention the possibility of religious bereavement 
counseling is actively hostile to religion. In effect it sets up a secular 
orthodoxy in dealing with a matter that for thousands of years has been an 
important part of religious practice.

If the policy is impermissible under the Establishment Clause, then 
Pickering test would not be applicable with respect to disciplining the 
employee/student for violation of the policy; perhaps it would be better to say 
that there would be no need to discuss the employee/student's Free Speech 
rights, and thus Pickering would be irrelevant. In addition, all the discussion 
about whether the employee/student had a religious belief requiring that he 
mention the religious bereavement option would be unnecessary, because there 
would be no need to engage in a Free Exercise analysis.

Mark Scarberry
Pepperdine



From: [EMAIL PROTECTED] on behalf of Joel Sogol
Sent: Fri 8/17/2007 12:07 PM
To: religionlaw@lists.ucla.edu
Subject: Church is not an option



Student dismissed from practicum for recommending church as an option 
for bereavement counseling?



http://www.ca11.uscourts.gov/opinions/ops/200513852.pdf 
 





Joel L. Sogol

811 21st Ave.

Tuscaloosa, ALabama  35401

ph (205) 345-0966

fx (205) 345-0971

email:  [EMAIL PROTECTED]



Ben Franklin observed that truth wins a fair fight - which is why we 
have evidence rules in U.S. courts.







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-- 

Prof. Steven D. Jamar   vox:  202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://iipsj.com/SDJ/


"Politics hates a vacuum.  If it isn't filled with hope, someone will fill it 
with fear."




Naomi Klein



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RE: Falwell: Not Necessarily The Person That You Think

[Sanford Levinson]

On this one I tend to agree with Will (unless we want to get into a discussion 
of Falwell v. Hustler, one of the shining lights of our contemporary 
jurisprudence!).
 
sandy



From: [EMAIL PROTECTED] on behalf of Will Linden
Sent: Wed 5/16/2007 8:57 PM
To: Law & Religion issues for Law Academics
Subject: Re: Falwell: Not Necessarily The Person That You Think



   OK, what are the LEGAL implications of Falwell's death? Or will the list
just become all-argue-about-Fawell, all the time?


Will Linden  [EMAIL PROTECTED]
http://www.ecben.net/
Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A-> a++ C+ G- QO++ 666 Y
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Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

[Sanford Levinson]

Title: Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol






I actually agree with much of the thrust of Eugene's post with regard to putting one's thumb on the side of granting accommodations, whether or not they are constitutionally divided.  (Thus I believe that the Court was probably correct in upholding what I also believe to be a quite dubious Washington policy in Locke.). That being said, I'm reluctant to push for such accommodations in what historically have been recognized to be common carriers.  But perhaps I was too flippant in saying "End of story."

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol

[Sanford Levinson]

Title: Re: FW: 75% of Minneapolis airport taxis refuse customerswithalcohol






I confess I'm with Paul on this one.  As someone who has often taught professional responsibility, I've defended the "cab rank" rule.  To put it mildly, it is disconcerting to be told that the "cab rank rule" doesn't apply to cabs!  They are common carriers, end of story, having been granted a valuable public license.  If they want to exercise that kind of discretion, let them open a livery company.  We've earlier discussed, on more than one occasion, whether a postal worker MUST deliver personally offensive magazines.  The answer is yes, and I don't recall that Eugene disagreed.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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RE: Rep. Harris (R-Fla.) on Church and State

[Sanford Levinson]

So what will the Bushes do?  Is she
going to be the second Republican senatorial candidate to be disowned?  But the
Democratic candidate is scarcely so compatible to Republicans as Joe Lieberman.


 

Incidentally, given her apparent
belief that God casts the relevant vote in all elections, will she interpret
her own likely repudiation by the voters of Florida as a sign that God may actually
support separation?  

 

sandy

 

Rep. Harris Condemns Separation of
Church, State

By Jim
Stratton
Orlando
Sentinel
Saturday, August 26, 2006; A09

ORLANDO, Aug. 25 -- Rep.
Katherine Harris (R-Fla.) said this week that God did not intend for the United States
to be a "nation of secular laws" and that the separation of church
and state is a "lie we have been told" to keep religious people out
of politics.

"If
you're not electing Christians, then in essence you are going to legislate
sin," Harris told interviewers from the Florida Baptist Witness, the
weekly journal of the Florida Baptist State Convention. She cited abortion and
same-sex marriage as examples of that sin.

Harris, a
candidate in the Sept. 5 Republican primary for U.S. Senate, said her religious
beliefs "animate" everything she does, including her votes in
Congress.

Witness
editors interviewed candidates for office, asking them to describe their faith
and their positions on certain issues.

Harris
has always professed a deep Christian faith. But she has rarely expressed such
a fervent evangelical perspective publicly.

Political
and religious officials responded to her published remarks with outrage and
dismay.

Rep.
Debbie Wasserman Schultz (D-Fla.) said she was "disgusted" by the
comments "and deeply disappointed in Representative Harris
personally."

Harris,
Wasserman Schultz said, "clearly shows that she does not deserve to be a
representative."

Ruby
Brooks, a veteran Tampa Bay Republican activist, said Harris's remarks
"were offensive to me as a Christian and a Republican."

"This
notion that you've been chosen or anointed, it's offensive," Brooks said.
"We hurt our cause with that more than we help it."

Harris
told the journalists "we have to have the faithful in government"
because that is God's will. Separating religion and politics is "so wrong
because God is the one who chooses our rulers," she said.

"And
if we are the ones not actively involved in electing those godly men and
women," then "we're going to have a nation of secular laws. That's
not what our Founding Fathers intended, and that certainly isn't what God
intended."

Harris
campaign spokeswoman Jennifer Marks would not answer questions about the Harris
interview. Instead, she released a two-sentence statement.

"Congresswoman
Harris encourages Americans from all walks of life and faith to participate in
our government," it stated. "She continues to be an unwavering
advocate of religious rights and freedoms."

 








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RE: Fox News Forgets Fact in Christian Graduation Speech Story

[Sanford Levinson]

I much appreciate the video.  I think it
IS relevant inasmuch as it raises the whole issue of “pre-approval”
of valedictorian’s speeches.  The video rightly suggests that such a
practice is itself dubious.  I share Bob Nagel’s view that valedictorians
should be allowed to say anything and everything, inasmuch as they won the
right to present a speech on the basis of academic achievement alone.  BUT, if
a district asks to listen to speeches in advance, as apparently was the case,
and she did a “bait-and-switch,” I find it more understandable that
the school district would be irate, even if they were a bit ham-handed in
refusing to give her the diploma.  

 

sandy

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, August 01, 2006
4:00 PM
To: religionlaw@lists.ucla.edu
Subject: Fox News Forgets Fact in
Christian Graduation Speech Story



 





I've just released another video at: Fox News Forgets Fact in
Christian Graduation Speech Story





 





(if the link doesn't work, the URL is http://www.youtube.com/watch?v=zafkek_--ug)





 





It's 3 minutes 17 seconds long, but 2+
minutes is the actual Fox News story. It involves the case of Erica Corder in
Monument, CO which has gotten some coverage, but not a lot. The story quotes
University of Colorado School of Law Prof. Robert Nagel.





 





I hope announcing
this video on the LISTSERV is on topic and not unwelcome.





 





Allen Asch










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RE: Religious hate speech?

[Sanford Levinson]

Title: Message



The following materials are an "appendix" of sorts to 
an article in yesterday's Washington Post on textbooks in Saudi Arabia.  It 
notes, though, that they are also used in certain Saudi-financed schools in the 
United States.  So the question is this:  Do any of 
the materials quoted count as "hate speech" under standard notions 
(assuming they exist) of that term?  (I think it obvious that some, 
perhaps most, of them do not count, even if one may properly find them 
offensive.)  If so, are they protected nonetheless a) because all hate 
speech is protected or b) because religious hate speech gets special protection 
derived from the free exercise clause that is denied ordinary hate speech?  

 
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/19/AR2006051901769_pf.html
 
  FIRST GRADE
" Every religion other than Islam is false."  
"Fill in the blanks with the appropriate words (Islam, hellfire): Every 
religion other than __ is false. Whoever dies outside of Islam 
enters ."  
FOURTH GRADE
"True belief means . . . that you hate the polytheists and infidels but do 
not treat them unjustly."  
FIFTH GRADE
"Whoever obeys the Prophet and accepts the oneness of God cannot maintain a 
loyal friendship with those who oppose God and His Prophet, even if they are his 
closest relatives."
"It is forbidden for a Muslim to be a loyal friend to someone who does not 
believe in God and His Prophet, or someone who fights the religion of 
Islam."
"A Muslim, even if he lives far away, is your brother in religion. Someone 
who opposes God, even if he is your brother by family tie, is your enemy in 
religion."SIXTH GRADE
"Just as Muslims were successful in the past when they came together in a 
sincere endeavor to evict the Christian crusaders from Palestine, so will the 
Arabs and Muslims emerge victorious, God willing, against the Jews and their 
allies if they stand together and fight a true jihad for God, for this is within 
God's power."EIGHTH GRADE
"As cited in Ibn Abbas: The apes are Jews, the people of the Sabbath; while 
the swine are the Christians, the infidels of the communion of Jesus."
"God told His Prophet, Muhammad, about the Jews, who learned from parts of 
God's book [the Torah and the Gospels] that God alone is worthy of worship. 
Despite this, they espouse falsehood through idol-worship, soothsaying, and 
sorcery. In doing so, they obey the devil. They prefer the people of falsehood 
to the people of the truth out of envy and hostility. This earns them 
condemnation and is a warning to us not to do as they did."
"They are the Jews, whom God has cursed and with whom He is so angry that He 
will never again be satisfied [with them]."
"Some of the people of the Sabbath were punished by being turned into apes 
and swine. Some of them were made to worship the devil, and not God, through 
consecration, sacrifice, prayer, appeals for help, and other types of worship. 
Some of the Jews worship the devil. Likewise, some members of this nation 
worship the devil, and not God."
"Activity: The student writes a composition on the danger of imitating the 
infidels."NINTH GRADE
"The clash between this [Muslim] community (umma) and the Jews and Christians 
has endured, and it will continue as long as God wills."
"It is part of God's wisdom that the struggle between the Muslim and the Jews 
should continue until the hour [of judgment]."
"Muslims will triumph because they are right. He who is right is always 
victorious, even if most people are against him."TENTH GRADE
The 10th-grade text on jurisprudence teaches that life for non-Muslims (as 
well as women, and, by implication, slaves) is worth a fraction of that of a 
"free Muslim male." Blood money is retribution paid to the victim or the 
victim's heirs for murder or injury:
"Blood money for a free infidel. [Its quantity] is half of the blood money 
for a male Muslim, whether or not he is 'of the book' or not 'of the book' (such 
as a pagan, Zoroastrian, etc.).
"Blood money for a woman: Half of the blood money for a man, in accordance 
with his religion. The blood money for a Muslim woman is half of the blood money 
for a male Muslim, and the blood money for an infidel woman is half of the blood 
money for a male infidel."ELEVENTH GRADE
"The greeting 'Peace be upon you' is specifically for believers. It cannot be 
said to others."
"If one comes to a place where there is a mixture of Muslims and infidels, 
one should offer a greeting intended for the Muslims."
"Do not yield to them [Christians and Jews] on a narrow road out of honor and 
respect."TWELFTH GRADE
"Jihad in the path of God -- which consists of battling against unbelief, 
oppression, injustice, and those who perpetrate it -- is the summit of Islam. 
This religion arose through jihad and through jihad was its banner raised high. 
It is one of the noblest acts, which brings one closer to God, and one of the 
most magnificent acts of obedience to God."
_

RE: More on chaplains

[Sanford Levinson]

 House Injects 
Prayer Into Defense Bill
By Alan Cooperman and Ann Scott TysonWashington Post Staff 
WritersFriday, May 12, 2006; A05

The House passed a $513 billion defense authorization bill yesterday that 
includes language intended to allow chaplains to pray in the name of Jesus at 
public military ceremonies, undercutting new Air Force and Navy guidelines on 
religion
Before the bill reached the House floor, Republicans on the House Armed 
Services Committee added the provision on military chaplains. It says each 
chaplain "shall have the prerogative to pray according to the dictates of the 
chaplain's own conscience, except as must be limited by military necessity, with 
any such limitation being imposed in the least restrictive manner feasible."
Air Force and Navy rules issued in recent months allow chaplains to pray as 
they wish in voluntary worship services. But the rules call for nonsectarian 
prayers, or a moment of silence, at public meetings or ceremonies, especially 
when attendance is mandatory for service members of all faiths.
Focus on the Family, the Christian Coalition and other evangelical Christian 
groups have lobbied vigorously against the Air Force and Navy rules, urging 
President Bush to issue an executive order guaranteeing the right of chaplains 
to pray in the name of Jesus under any circumstances. Because the White House 
has not acted, sympathetic members of Congress stepped in.
"We felt there needed to be a clarification" of the rules "because there is 
political correctness creeping into the chaplains corps," said Rep. Walter B. 
Jones (R-N.C.). "I don't understand anyone being opposed to a chaplain having 
the freedom to pray to God in the way his conscience calls him to pray."
Among the provision's opponents is the chief of Navy chaplains, Rear Adm. 
Louis V. Iasiello, a Roman Catholic priest.
"The language ignores and negates the primary duties of the chaplain to 
support the religious needs of the entire crew" and "will, in the end, 
marginalize chaplains and degrade their use and effectiveness," Iasiello wrote 
in a letter to a committee member.
The National Conference on Ministry to the Armed Forces, a private 
association of religious groups that provide more than 70 percent of U.S. 
chaplains, also objected to the language. "Chaplains represent their faith 
communities and we endorse them to represent that faith community with integrity 
and loyalty to that tradition, not to the dictates of their individual 
conscience," the association's executive committee wrote.
Abraham H. Foxman, national director of the Anti-Defamation League, called 
the language "divisive." Rep. Steve Israel (D-N.Y.) offered an amendment to add 
that chaplains should show "sensitivity, respect and tolerance for all faiths," 
but it was defeated on a party-line vote in committee, and the Rules Committee 
did not allow floor debate on the chaplaincy provision.
 
What is one to think of 
the rejection, on a party-line vote, of the Israel amendment?  Is it the 
position of Repubicans that chaplains need not show "sensitivity, respect and 
tolerance for all faiths"?  Of course, a genuine problem is that many 
faiths in fact have no respect for adherents of other traditions, so I suppose 
one could criticize the amendment on the grounds that it forces (some) chaplains 
in effect to lie, rather than to say, forthrightly, that "adherents of X are 
damned to eternal damnation for refusing to recognize the one true 
faith."  So would passage of the Israel amendment raise a first 
amendment problem in itself?
sandy
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RE: Kosher slaughter

[Sanford Levinson]

From today's NYTimes (comments at conclusion)
 
March 10, 2006

Inquiry Finds Lax Federal Inspections 
at Kosher Meat Plant 
By DONALD G. McNEIL Jr.

An internal report from the Agriculture Department has found that one of the 
nation's leading kosher slaughterhouses violated animal cruelty laws and that 
government inspectors not only failed to stop the inhumane practices but also 
took improper gifts of meat from plant managers.
Also, some of the plant's 10 inspectors made faulty inspections of carcasses, 
failed to correct unsanitary conditions and were seen sleeping and playing 
computer games on the job, said the report, by the agency's inspector general. 
It was provided to The New York Times by the animal-rights group People for the 
Ethical Treatment of Animals.
Conditions at the plant — AgriProcessors Inc. of Postville, Iowa — created a 
controversy in late 2004, when PETA released a videotape taken clandestinely 
inside. It showed that after steers were cut by a ritual slaughterer, other 
workers pulled out the animals' tracheas with a hook to speed bleeding. In the 
tape, animals were shown staggering around the killing pen with their windpipes 
dangling out, slamming their heads against walls and soundlessly trying to 
bellow. One animal took three minutes to stop moving.
The scenes caused a furor among Jewish organizations around the world. Some 
accused PETA of promoting anti-Semitic libels that kosher slaughter is torture. 
But others were angry with AgriProcessors for violating the spirit of religious 
laws requiring that animals be killed without suffering.
Soon after, the plant changed its practices under pressure from the 
Agriculture Department, the Orthodox Union kosher certification authority and 
Israel's chief rabbinate.
In September, the department told the plant that in light of those changes, 
"legal action will not be instituted at this time," but warned that future 
violations could lead to it. 
AgriProcessors is the country's largest producer of meat certified glatt 
kosher, the highest standard for cleanliness under kosher law. ("Glatt" means 
smooth, or free of the lung blemishes that might indicate disease.) Employing 
700 people and selling under the brands Aaron's Best, Rubashkin's and Iowa's 
Best Beef, it is the only American plant allowed to export to Israel. 
After a six-month investigation, the Agriculture Department suspended one of 
its own inspectors for 14 days and gave warning letters to two others, a 
department spokesman said. He declined to describe which offenses brought which 
punishments.
The inspector general's office gave its report to federal prosecutors, but 
"based on the information presented to us, we decided there was not a 
prosecutable case," said Robert Teig, a lawyer in the United States attorney's 
office for the northern district of Iowa.
The investigation ended last April, but the report was released to PETA only 
after months of appeals under the Freedom of Information Act. The group will 
release it today on its Web sites, including GoVeg.com.
PETA's president, Ingrid Newkirk, said the Agriculture Department "should 
fire all the inspectors who accepted gifts and did nothing about these egregious 
abuses of the animals whom they are supposed to protect." Bruce Freidrich, a 
PETA spokesman, added that the punishment "indicates yet again that the U.S.D.A. 
is completely uninterested in enforcing the law."
At issue was a "second cut" the plant formerly made.
Under Jewish law, an animal cannot be considered kosher if it is stunned 
before it is killed. The Humane Slaughter Act of 1978 requires stunning in all 
American slaughterhouses, but has an exception for religious slaughter, as long 
as the animal's neck is cut swiftly and no "carcass dressing" is done before the 
animal is insensible.
But at AgriProcessors, a second worker would step in after the first cut by 
the shochet, or ritual slaughterer. He would use a knife to open the animal's 
neck further and reach in with a hook to pull out the trachea and esophagus, 
with the carotid arteries attached. This was done to speed bleeding; kosher meat 
must contain as little blood as possible.
The 15-page report contains summaries of interviews with inspectors and 
supervisors then or formerly at the plant. All names were whited out, but it is 
clear that some inspectors thought they were not supposed to interfere with 
ritual slaughter and usually did not even watch the "kill box." Visiting 
supervisors also raised no objections to the killing.
But the report also says a district supervisor concluded after the PETA tape 
was released that the trachea-pulling "should not occur while an animal is 
conscious or sensory."
Mike Thomas, a spokesman for AgriProcessors, said the practice was 
immediately discontinued and the shochet was given a stun gun for any animal 
conscious after the first cut. Meat from that animal would be sold as nonkosher. 
Mr. Thomas said the shochets never used the stu

RE: New yORK Lawsuit

[Sanford Levinson]

I think that one can limit 
the "practice of one's faith" to a refusal consciously to be photographed.  
(This, obviously, arises in the drivers' license cases.)  I am not 
persuaded that a serious art or news photographer must get the consent of 
everyone he/she surreptitiously photographs, even if the photographs are to be 
sold in a market.  (I'm curious:  Did Alfred Eisenstadt get 
release forms from the famous couple he photographed in Times Squareon V-J 
Day?)  All of us run certain risks when we enter the public 
square.
 
sandy


From: [EMAIL PROTECTED] on 
behalf of Marc SternSent: Fri 2/10/2006 8:21 AMTo: Law 
& Religion issues for Law AcademicsSubject: RE: New yORK 
Lawsuit


 
Today's NY Law journal reports on Nussenzweig v. di Corcia in which a 
Hassidic Jew with religious objections to be photographed sued a photographer 
who took a surreptitious picture of the plaintiff and sold 10 prints for between 
20-3 dollars. New York law permits artists to use other persons images for 
artistic, but not for commercial, purposes. The narrow question was whether the 
sale of a few copies of the picture for substantial sums artistic or commercial. 
In the course of holding it was the former, the court (according to the law 
journal) noted that New York law favors freedom of artistic _expression_. For some 
reason, the court thought it irrelevant to observe that the protection of those 
first amendment rights came at the expense of other first amendment rights that 
of the plaintiff to freely practice his faith without state interference, here 
in the form of allowing the reproduction of his image without his 
consent.
Marc Stern 




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RE: Pilgrim Baptist Church

[Sanford Levinson]

I think the issue of historical restoration and preservation is a tricky one, 
precisely because of the potential for strategic mispresentation.  I would feel 
much better if the decision had been made by a professional board of architects 
(who would no doubt be completely credible in claiming the importance of the 
connection with Adler and Sullivan) as against the governor (unless the 
governor had consistently made historical preservation a leitmotif of his 
administration).  Fred Schauer makes some important arguments about the 
importance of professionals making such decisions in an article in the Harvard 
L. Rev. published after the Arkansas public television case.  (When I've taught 
these materials, including Fred's article, a surprising (to me) number of 
students object to the importance given "professional" judgment, some from the 
populist side, some who mistrust even professionals and who would adopt a 
bright-line rule against using public funds to preserve churches that are still 
being used as religious venues.)
 
sandy



From: [EMAIL PROTECTED] on behalf of David E. Guinn
Sent: Sun 1/15/2006 5:55 PM
To: Law & Religion issues for Law Academics
Subject: Pilgrim Baptist Church



I trust that many members of the list may have heard about the tragic fire
at the Pilgrim Baptist Church.  The church, designed by the firm of Adler
and Sullivan, started life as a major synacoge on the South side of Chicago
that was eventually taken over by the Pigrim Baptist Congration.
Interestingly, the new congregation did not strip the decorative features of
the synagogue but instead simply added christian decorative features.

The church became a leading institution within the Black community in
Chicago and was the birth place of gospel music.  It has also become a
significant stop on the many archetectural tours that Chicago is famous for.
The attached link describes the virtues of the building and the need to
rebuild.
http://www.chicagotribune.com/news/opinion/chi-0601150287jan15,1,4394171.story?coll=chi-opinionfront-hed

You may have also heard about the controversy.  As the news reports puts it:
"Gov. Rod Blagojevich, who has stirred the wrath of the American Civil
Liberties Union by pledging $1 million in state funds for the church."

In order to avoid the first amendment challenge, Blagojevich stated that the
grant could only be used for reconstruction of the administrative offices
for the church -- which is arguably associated with the community service
functions of the church.

While I recognize that there are some problems in helping to rebuild a
sanctuary, in this case given the existing public uses of the building as a
part of the cultural heritage of the city of Chicago, I am not sure that I
can distinguish rebuilding Pilgram from government support for religious
artworks held in a museum..  Clearly, that is constitutional even though it
is possible that the religious artwork may be used to create replicas of the
artwork that might be used in religious ritual -- or that the artwork may be
loaned to a responsible religious organization.

I am not sure on what precedent the ACLU is relying in this case that makes
the case to easy for them to object.  Ideas?

David
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RE: From the list custodian RE: Alito/The Constitution

[Sanford Levinson]

I can see what Eugene is getting at, but it seems to me that one
question raised by John Lofton's comment is the meaning of an "oath."
The oath, after all, is to be faithful to the Constitution, which some
of us argue functions, for better and distinctly for worse, as the
centerpiece of American civil religion.  If I were to rewrite Mr.
Lofton's question, it would be along the lines of, "Does Alito indicate
by this statement that he is an institutional "catholic" inasmuch as he
ultimately gives more weight to what the magesterium (i.e., prior
Supreme Courts) have said than to the original gospel (i.e., the written
Constitution) might best be interpreted to mean?"

sandy


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, January 12, 2006 1:15 PM
To: Law & Religion issues for Law Academics
Subject: From the list custodian RE: Alito/The Constitution

Just a reminder that this list is designed for discussion of the
law of government and religion, not broader debate about constitutional
law or constitutionalism.  Such broader debate may be tremendously
interesting and important -- this list just isn't the place for it.

The list custodian

> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
> Sent: Thursday, January 12, 2006 11:07 AM
> To: Law & Religion issues for Law Academics
> Subject: Alito/The Constitution
> 
> 
> Anyone disturbed that Judge Alito has said: "I don't agree with the 
> theory that the Constitution always trumps stare decisis"? Sounds like

> he's broken his Supreme Court Justice oath before he's taken it. John 
> Lofton, Editor, TheAmericanView.com.
> ___
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RE: Dover Case

[Sanford Levinson]

I must say that I think for most people "professor" rates as a higher
honorific than "Dr."  But the pattern *is* odd.

sandy 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steve Monsma
Sent: Wednesday, December 21, 2005 2:10 PM
To: religionlaw@lists.ucla.edu
Subject: Dover Case

I've just finished reading all 139 pages.  I will  resist commenting on
the substance of Judge Jones' opinion, but I was struck by one thing.
Without exception, when referring to the plaintiffs' expert witnesses
(such as Miller and Padian), he refers to them as Dr. Miller, Dr. Padian
or Drs. Miller and Padian.  When referring to the defendants' expert
witnesses (such as Behe and
Munnich) he refers to them as Professor Behe, Professor Minnich,, or
Professors Behe and Munnich.  (I've checked and both Behe and Minnich
have earned
doctorates.)

Assuming (as I would) that holding a doctorate gives one more
credibility than simply being a professor at some college or university,
is this consistent use of titles an indication of a  bias on Judge
Jones' part?  Or am I reading too much into this?  Is there some more
innocent explanation?

Stephen Monsma



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Re: "Silent Night" controversy

[Sanford Levinson]

Title: Re: "Silent Night" controversy






Actually, Roth said that the greatest Amerixan Jew was Irving Berlin because he wrote both of the songs that transformed Christmas into being about snow and Easter into a holiday about dressing up!  But, of course, Jews alone could not have made them iconic.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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RE: Can a murderer ever be redeemed?

[Sanford Levinson]

I take it that the 
post-Witherspoon regime allows automatic dismissal of all Quakers and, perhaps 
in the future, of all Catholics who would profess fidelity to the ever-stronger 
teaching of the Church re capital punishment.  At the very least, would a 
prosecutor be allowed to interrogate a Catholic juror during voir dire on 
his/her views of papal pronouncements on capital punishment?  I think that 
Jim's questions's are altogether apt.
 
sandy


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Tuesday, December 13, 2005 1:50 
PMTo: religionlaw@lists.ucla.eduSubject: Re: Can a 
murderer ever be redeemed? 


In a message dated 12/13/2005 1:20:06 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
    Yet surely the 
  answer is that it's perfectly legitimate forpeople to base either their 
  support or opposition to capital punishmenton religious justifications, 
  just as it's legitimate for people to basetheir opposition to murder, 
  slavery, racism, and the like on religiousjustification.  Am I 
  mistaken?  Would some on this list argue 
otherwise?

Eugene, of course you are correct, so far as you take your point.  
There is no government orthodoxy, as I understand it, that may be imposed on the 
thinking of the People about matters of politics, religion, and the like (a 
separate fight, please, about the meaning of "imposed").  But what about 
when the question moves beyond support for or opposition to the death penalty to 
actual cases?  What happens when people of faith enter the jury box?
 
What then are the constitutional strictures?  If Venireman 
Smith may base his support for, or opposition to, the death penalty, 
on the teaching of his faith, how may the government modify its treatment 
of him in respect of that religious fount for his opinions and actions?
 
If, in honest answer during voir dire, he expresses the view that the 
death penalty is illicit in all cases, based on that religious belief, must he 
be excused for cause?  may he be excused for cause? 
 
If Venireman Smith supports the death penalty for murder because of 
the teaching of his faith, must he be excluded from service while Venirewoman 
Jones be retained for service because her opinions on the death penalty are not 
traceable to religious teaching or faith?
 
May the Prosecutor (as I suspect is more likely) or the defense counsel 
inquire into religious faith with the intent and purpose of rooting out 
veniremen whose religious identity would likely predispose them in one way or 
another on the question of death?
 
Jim Henderson
Senior Counsel
ACLJ
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RE: Can a murderer ever be redeemed?

[Sanford Levinson]

A friendly amendment to Eugene's question is whether anyone on this list
subscribes to the philosopher Robert Audi's 
View that conscientious citizens are required to engage in "epistemic
abstinence" by filtering out any arguments even in their own
consciousness that depend on religious presuppositions.  A more moderate
version is (one understanding of) John Rawl's argument that articulated
arguments must be made in a "publicly accessible" discourse that rules
out reference to inevitable religious arguments that many members of the
audience would find "inaccessible."

Sandy

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 13, 2005 12:49 PM
To: Law & Religion issues for Law Academics
Subject: RE: Can a murderer ever be redeemed? 

I agree with Sandy that *this* aspect of the redemption inquiry
is indeed related to the law of government and religion.  (I anticipated
this in some measure when I wrote that "we ought to discuss [the
redemption question] only to the extent that it touches on the law of
government and religion" rather than suggesting that we ought not
discuss the question at all.)

Yet surely the answer is that it's perfectly legitimate for
people to base either their support or opposition to capital punishment
on religious justifications, just as it's legitimate for people to base
their opposition to murder, slavery, racism, and the like on religious
justification.  Am I mistaken?  Would some on this list argue otherwise?

Eugene

> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Sanford 
> Levinson
> Sent: Monday, December 12, 2005 8:43 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Can a murderer ever be redeemed? 
> 
> 
> I can understand Eugene's point, but let me try this
> response:  We spend a lot of time arguing about the extent to which 
> explicitly theological notions should be allowed to play a part in 
> political decisionmaking. There are many secular arguments both for 
> and against capital punishment.
> But it seems to me that the "possibility-of-redemption" 
> argument ultimately sounds, for many people, in a religious 
> sensibilty. Does that mean that it is illegitimate to base one's 
> opposition to capital punishment on it (or, for that matter, a 
> literal, albeit debatable, reading of "Thou Shalt Not Kill"), or, 
> conversely, that it is illegitimate to base one's support for capital 
> punishment on a biblical notion of "eye-for-an-eye" retribution?
> 
> sandy
> 
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, 
> Eugene
> Sent: Monday, December 12, 2005 11:23 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Can a murderer ever be redeemed? 
> 
> Folks:  This is an interesting question, but it seems to me that on 
> this list we ought to discuss it only to the extent that it touches on

> the law of government and religion.  (What religious people should 
> think about death penalty law wouldn't, I think, quite qualify.)
> 
> Eugene
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RE: Can a murderer ever be redeemed?

[Sanford Levinson]

I can understand Eugene's point, but let me try this response:  We spend
a lot of time arguing about the extent to which explicitly theological
notions should be allowed to play a part in political decisionmaking.
There are many secular arguments both for and against capital
punishment.  But it seems to me that the "possibility-of-redemption"
argument ultimately sounds, for many people, in a religious sensibilty.
Does that mean that it is illegitimate to base one's opposition to
capital punishment on it (or, for that matter, a literal, albeit
debatable, reading of "Thou Shalt Not Kill"), or, conversely, that it is
illegitimate to base one's support for capital punishment on a biblical
notion of "eye-for-an-eye" retribution? 

sandy 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Monday, December 12, 2005 11:23 PM
To: Law & Religion issues for Law Academics
Subject: RE: Can a murderer ever be redeemed? 

Folks:  This is an interesting question, but it seems to me that on this
list we ought to discuss it only to the extent that it touches on the
law of government and religion.  (What religious people should think
about death penalty law wouldn't, I think, quite qualify.)

Eugene
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RE: Can a murderer ever be redeemed?

[Sanford Levinson]

I much appreciate Jim 
Henderson's thoughtful posting below.  About 30 years ago, when I was in 
law school, I remember very vividly giving a talk to the Menlo Park (or Redwood 
City, I forget which) Lions Club against the California referendum to reinstate 
the death penalty.  The principal argument I made--and believed--was that 
the death penalty forecloses the possibility of redemption, and that our central 
religious traditions all emphasize the possibiity of redemptive change.  
Needless to say, my talk had no apparent effect.  But for all these years, 
that has struck me as one of the strongest arguments against capital punishment 
even for killers where there is indeed no reasonable doubt about their being the 
perpetrators.   I also agree with Jim about the mistrust of complacent 
judicial systems that too easily reflect conventional wisdom.  
(Incidentally, I think it is interesting, and perhaps a portent of things to 
come, that the newly elected governor of Virginia is a serious Catholic who 
opposes both abortion and capital punishment, and that his opposition to capital 
punishment apparently didn't hurt him precisely because it was viewed as the 
product of serious religious principles.)
 
sandy
 
 


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Monday, December 12, 2005 10:19 
PMTo: religionlaw@lists.ucla.eduSubject: Re: Can a 
murderer ever be redeemed? 

I have no certainty about guilt or innocence in this particular 
case.  In any event, the real problem for me is trusting in a judicial 
system that concludes that blacks are chattel property, that Native Americans 
are not persons, and that children before birth are not endowed with the natural 
right to life, liberty and to due process of law. While as a matter of 
principle, the death penalty may be licit, in our society at this time it is not 
free from doubt on these grounds, as well as others that may be invoked.
 
Jim Henderson
Senior Counsel
ACLJ
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Re: Kansas Anti-ID Prof Apologies

[Sanford Levinson]

Title: Re: Kansas Anti-ID Prof Apologies






I think this comes under the category "would that my enemy write a book" (or in this case an email)!

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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Re: The Holiday That Dare Not Speak Its Name

[Sanford Levinson]

Title: Re: The Holiday That Dare Not Speak Its Name






I stand corrected re the meaning of "mazel tov."

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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Re: The shrimp cocktail analogy

[Sanford Levinson]

Title: Re: The shrimp cocktail analogy






I substantially agree with Eugene.  It is in fact getting harder to give dinner parties given the increasing idiosycracy of food preferences.  If one invites a vegetarian to dinner, I don't think that means, ordinarily, that one can't serve meat (though I probably wouldn't do so if the guest of honor were Peter Singer), but I do think one one be obligated, as a good host, to make sure there were tasty vegetarian dishes.  What if it's the family custom to say grace?  I think that I would be obliged to be courteous and make no objection, though I'd be a bit irked if it ended "in Jesus' name." 

All of this being said, I do think this has turned into a discussion of manners rather than of law.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 



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RE: The Holiday That Dare Not Speak Its Name

[Sanford Levinson]

Title: Message







For what it is worth, I often 
say "Mazel Tov" to Christian friends precisely because the term, to my 
knowledge, has no religious meaning at all.  It is a way of saying 
"congratulations."  (I think that it literally means "Happy day."  I 
am unaware of any prayer in the Jewish liturgy that includes the words.)  
Similarly with "L'Chaim" (To life), which has no necessary religious 
import.  But I agree with Alan that I would not wish my Christian friends a 
"Happy New Year" right before Rosh Hashanah because I am aware that it's not 
their holiday and, indeed, they might regard it as a bit bizarre, like asking 
them if they're having a "bris" (a ritual circumcision) for their newly born 
son.  (I assume that it would be equally bizarre if a Christian friend 
asked me when the Baptism is going to take place.)  Most of the time we can 
figure out such things.  I think that Doug's posting is right on the mark 
with regard to Thanksgiving and Christmas,which have become an unhappy mixture 
of sacred and secular days.  For some Jews, "Merry Christmas" is 
innocuous; for others, it's like being served shrimp cocktail or pancetta as an 
appetizer at a dinner party.  I don't eat pork or shellfish, and if that 
happened at a friend's home, I'd find it more than a bit odd (and I wouldn't be 
particularly mollified if I were told that such cuisine was an _expression_ of my 
friend's identity).  Generally, it's all right with me to be wished 
"Merry Christmas," since the term for most Americans no longer has a religious 
meaning of the kind that Doug describes, though I'm even happier if people say 
"Happy Holidays" or the like.  
 
sandy


From: [EMAIL PROTECTED] on 
behalf of Alan BrownsteinSent: Mon 11/28/2005 5:02 PMTo: 
Law & Religion issues for Law AcademicsSubject: RE: The Holiday 
That Dare Not Speak Its Name


I’m sorry, Greg. I just 
don’t get it. I would say Mozel Tov to my Christian friends. I would not wish 
them a Happy Passover. I certainly do not feel that I am practicing self-denial 
and the suppression of my identity when I wish my Christian friends a Happy 
Easter, but refrain from wishing them a Happy Passover. Why would you feel that 
you are suppressing your identity if you wished me a Happy Passover instead of a 
Happy Easter?
 
Alan 
Brownstein
 




From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Sisk, Gregory 
C.Sent: Monday, November 28, 
2005 2:51 PMTo: 'Law & 
Religion issues for Law Academics'Subject: RE: The Holiday That Dare Not 
Speak Its Name
 
Even to the extent that 
“Merry Christmas” is a religious _expression_ by the speaker, and surely it is 
some of the time (and by some speakers all of the time), to chastise the person 
who offers “Merry Christmas” as a greeting or to expect the courteous speaker to 
self-censor that rather minimalist religious sentiment strikes me as precisely 
the kind of arid and artificial denial of self-identity that we tend to reject 
today for almost every other segment of society.  In a society that is 
affirmatively pluralistic in the public setting, rather than reluctantly 
tolerant (or worse, intolerant), we ought to encourage every person to 
positively express him or herself in a manner that upholds individual dignity 
and identity as part of a community of deeply shared meaning.  For a 
student to resist a congratulatory message expressed by a Jew as “Mazeltov” 
appears to me to be the equivalent of saying, “if you have to be Jewish, at 
least try to keep it to yourself so that I am not made uncomfortable and do not 
have to acknowledge you as a Jew.”  For a Christian to deliberately refrain 
from sharing words of “Merry Christmas” or “Happy Easter” at those points in the 
year corresponding to the two greatest celebrations of the Christian faith 
likewise would involve a degree of self-denial and suppression of 
identity.  What is important about the _expression_ in either case is not as 
much what it means to the recipient as in how it expresses the sincere 
conviction and associational values of the speaker.  We ought to encourage 
more such positive expressions by members of diverse religious communities 
rather than strip the public square of all religious _expression_, thereby 
creating a naked secularism that leaves us all feeling cold and 
alienated.
 
Greg 
Sisk
 
 
Gregory Sisk
Professor of Law
University of St. 
Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle 
Avenue
Minneapolis, MN  
55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html
 
 

 




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RE: Kansas and Intelligent Design: A Twist

[Sanford Levinson]

Richard Bushman has just published an excellent biography of Joseph
Smith (which I reviewed for the History Book Club).  It is reviewed in
the current (I believe) New York Review of Books by Larry McMurtry.
Bushman is a member of LDS; McMurtry, one presumes, is not, and both the
book and the review offer excellent examples of the difficulties
presented by trying to write a conventional biography of someone (who
purports to be, is) a receiver of revealed truths.  My own view is that
any serious history of the United States must include something on the
LDS; our casebook frames Reynolds v. US within a narrative that points
out that the LDS were the victims of the most relentless religious
persecution by the national government in our history.  (I suppose the
only serious contenders would be various Native American religions, such
as the Ghost Dance.)  But would an historian (or professor of
constitutional law) be under any obligation to treat, say, the existence
of the Gold Plates purportedly discovered by Smith as an open question
or could one say (something like) "no one outside the faith community of
the LDS gives the slightest credence to the Gold Plates or to Smith's
purported translation of same"?  (Of course, one could make similar
statements about most of the Bible or Intelligent Design.)

sandy   

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Christopher C.
Lund
Sent: Wednesday, November 23, 2005 10:06 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Kansas and Intelligent Design: A Twist

I think I agree with both Ed and Doug.   But I have a question about the

content of the category of statements in between Doug's dashes --
"claims about the supernatural, about the existence and nature of God,
about God's desires for humans."  Those are the exclusively religious
statements, out of the domain of science (and therefore out of the
government's ability to promote or disapprobate).  Of course, this whole
fight was started because many people thought "claims about the origins
of human life on this planet" 
belonged on that list, but evolution changed that.  (Those people can
still climb the ladder -"claims about the origin of the universe" are
still, at this point, out of science's domain.)

But why are "claims about the supernatural" outside the domain of
science?  
Science's standard commitment to naturalism entails a rejection of the
supernatural, which is certainly a claim about the supernatural.  And
science can directly investigate the supernatural.  Take the
perhaps-sound-but-everyone-has-trouble-believing-them experiments
allegedly showing prayer has effects on unknowing subjects that are
unexplainable by naturalistic phenomena.  (I won't go into the
experiments here, but you can find them in Kent Greenawalt's piece,
Establishing Religious Ideas: 
Evolution, Creationism, and Intelligent Design, 17 Notre Dame J.L.
Ethics & Pub. Pol'y 321, 322 (2003), and his book, Does God Belong in
the Public
Schools?)

Science could come back at those experiments and investigate
supernatural phenomena directly, right?  It could investigate the
efficacy of prayer, run some double-bind experiments, and conclude
something like: Prayer has no empirically demonstrable, statistically
significant, this-world effects.  
Such findings, like the findings of evolution, could then be taught as
true by the government.

The realm of the purely religious -- the stuff between Doug's dashes --
seems always shrinking.  Surely it won't disappear.  (Even if science
runs experiments showing prayer has no this-world effects, for example,
the question of whether it has other-worldly effects would remain.)  But
I understand why this frightens a lot of people.

Chris


From: "Douglas Laycock" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics

To: "Law & Religion issues for Law Academics"

Subject: RE: Kansas and Intelligent Design: A Twist
Date: Tue, 22 Nov 2005 15:32:14 -0600

I agree.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341 (phone)
512-471-6988 (fax)

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton
Sent: Tuesday, November 22, 2005 3:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Kansas and Intelligent Design: A Twist

Douglas Laycock wrote:

 >Well, yes and no.  Ed's examples are all cases where religions make
>claims about the natural world:  claims within the domain of science to

 >investigate and within the domain of government to respond to.  When
>religion makes claims that are more exclusively religious -- claims
>about the supernatural, about the existence and nature of God, about
>God's desires for humans --  then it is true that government cannot say

 >those claims are false.  I well recognize that the examples between
the

 >dashes are a first approximation and not an adequate definition.
 >

That's a reasonable distincti

RE: Kansas and Intelligent Design: A Twist

[Sanford Levinson]

Title: Re: Kansas and Intelligent Design: A Twist






Imagine that a religion 
commits itself to a phlogistonistic view of chemistry. Surely the chemistry 
department can teach that it is false.  Would anyone seriously believe that 
the Establishment Clause would prevent that?  
 
Perhaps ID isn't "false" in the same way 
that phlogiston is, but surely the University of Kansas can teach that there is 
not a scintilla of what is ordinarily called "scientific evidence" for the 
proposition.  Or, to take an example that I earlier offered (and which no 
one responded to), the archeology department can surely teach that there is not 
a scintilla of evidence for an Israelite presence in Egypt or the Sinai or for 
the proposition that there was a conflict between the Lamanites and the 
Nephites during the pre-Columbian period in North America.
 
sandy


From: [EMAIL PROTECTED] on 
behalf of Ed BraytonSent: Tue 11/22/2005 3:00 PMTo: Law 
& Religion issues for Law AcademicsSubject: Re: Kansas and 
Intelligent Design: A Twist

Christopher C. Lund wrote:> The University of Kansas 
is planning to teach a course on intelligent> design next semester.  
But it's not a science class.  It is a> religious-studies class, and 
it's titled, "Special Topics in Religion:> Intelligent Design, 
Creationism and other Religious Mythologies." > (The chairman of the 
department, in explaining the class, said this,> "Creationism is 
mythology . . . Intelligent design is mythology.  It's> not 
science.  They try to make it sound like science.  It clearly 
is> not.")  It's the next step in the intelligent design/evolution 
fight.>> http://news.yahoo.com/s/ap/20051122/ap_on_re_us/intelligent_design_course>> 
Does anyone on the listserv see a potential Establishment Clause> problem 
here?  Let me be provocative.  Surely, the University of> 
Kansas cannot teach that intelligent design is false, right? > 
Government cannot pass directly on the truth or falsity of religious> 
teaching. Hey, that works for me. That means that ID is, in 
fact, a religiousteaching and not a scientific theory and means it cannot be 
taught inpublic school science classrooms. ID advocates can't have it both 
ways,claiming that it's not religious idea but a scientific theory 
whentrying to get around establishment clause problems on one level, 
thenclaiming it is a religious idea and not a scientific theory to claim 
anestablishment clause violation at another level.Of course, the 
entire question is based upon a false premise. Of coursea public university 
can teach that religious ideas are false. The Noahicglobal flood is a 
religious claim, but any geology course at any publicuniversity in the 
nation will teach that no such global flood ever tookplace. Belief in a flat 
earth is a religious belief based uponinterpretation of the bible, and so is 
geocentrism; both of thosereligious ideas are debunked in public university 
classrooms every day,as well they should be. The germ theory of disease 
completely negatesthe religious views of the Christian Science Church and 
Mary Baker Eddy;that doesn't mean that university hospitals are violating 
theestablishment clause by teaching it.Ed 
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RE: Social Notes from All Over

[Sanford Levinson]

I was engaging in poetic license!

sandy


-Original Message-
From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 11/7/2005 2:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Social Notes from All Over
 
This may be off topic, but what makes the invitees the "finest" people?

 

____

From: Sanford Levinson [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson
Sent: Saturday, November 05, 2005 1:41 AM
To: Law & Religion issues for Law Academics
Subject: RE: Social Notes from All Over

 

Rick writes:

It seems to me that inviting people to dinner is totally unrelated to 
supporting a radical re-definition of marriage. The one is socially decent, the 
other would be totally destructive of a great institution. Bush is right to 
invite his Veep's family & guests to dinner at the WH. He is also right to 
stand up for traditional marriage.

 

If Bush invited Clinton to dinner, would it mean that he is celebrating 
disbarred lawyers. I think not.

 

 

I think that Rick is missing the point that we're talking about a state dinner 
(or, in this case, lulncheon).  If this were a constitutional law case, there 
would be "state action" in a way that would not be the case if we were 
referring to the Bush's having someone for dinner in their private quarters.  
This is the United States of America recognizing the fitness of honoring Ms. 
Cheney and her companion with an invitation to meeting His Royal Highness and 
his wife.  Indeed, everyone knew that an important line had been crossed when 
Queen Elizabeth formally accepted the presence of Camilla Parker-Bowles at some 
Buckingham Palace event after the Queen had, for many years, refused formally 
to rcognize the reality of the relationship.  

 

This is precisely why the Right is ultimately going to lose this battle in the 
great culture war. Most Americans, including Rick, apparently, believe there's 
nothing at all wrong in the United States of America's recognizing the humanity 
of two people of the same sex who are in a committed relationship with one 
another.  Today a State Lucheon at the White House, tomorrow (or, say, ten 
years from now), Ms. Cheney and Ms.Poe will, should they wish, be allowed to 
get married in places other than Massachusetts.  After all, even the Archbishop 
of Canterbury, I believe, congratulated His Royal Highness on his marriage to a 
divorced woman with whom he had had an adulterous relationship.  I presume the 
United States of America officially shares that joy, given the occasion of the 
State Luncheon to which the finest people in America were invited.

 

sandy.  


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RE: Social Notes from All Over

[Sanford Levinson]

As a matter of fact, they were there.  Perhaps this is why it was at lunch, 
rather than dinner, because they had to leave for Argentina.  



From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]
Sent: Sat 11/5/2005 3:08 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Social Notes from All Over


And what symbolism is to be drawn when the invitation is to attend a luncheon 
at which the President and his wife will not be present?  Weren't they in the 
air on the way to the Summit?
 
Jim Henderson
Senior Counsel
ACLJ
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RE: Social Notes from All Over

[Sanford Levinson]

Rick writes:


It seems to me that inviting people to dinner is totally unrelated to 
supporting a radical re-definition of marriage. The one is socially decent, the 
other would be totally destructive of a great institution. Bush is right to 
invite his Veep's family & guests to dinner at the WH. He is also right to 
stand up for traditional marriage.
 
If Bush invited Clinton to dinner, would it mean that he is celebrating 
disbarred lawyers. I think not.
 
 
I think that Rick is missing the point that we're talking about a state dinner 
(or, in this case, lulncheon).  If this were a constitutional law case, there 
would be "state action" in a way that would not be the case if we were 
referring to the Bush's having someone for dinner in their private quarters.  
This is the United States of America recognizing the fitness of honoring Ms. 
Cheney and her companion with an invitation to meeting His Royal Highness and 
his wife.  Indeed, everyone knew that an important line had been crossed when 
Queen Elizabeth formally accepted the presence of Camilla Parker-Bowles at some 
Buckingham Palace event after the Queen had, for many years, refused formally 
to rcognize the reality of the relationship.  
 
This is precisely why the Right is ultimately going to lose this battle in the 
great culture war. Most Americans, including Rick, apparently, believe there's 
nothing at all wrong in the United States of America's recognizing the humanity 
of two people of the same sex who are in a committed relationship with one 
another.  Today a State Lucheon at the White House, tomorrow (or, say, ten 
years from now), Ms. Cheney and Ms.Poe will, should they wish, be allowed to 
get married in places other than Massachusetts.  After all, even the Archbishop 
of Canterbury, I believe, congratulated His Royal Highness on his marriage to a 
divorced woman with whom he had had an adulterous relationship.  I presume the 
United States of America officially shares that joy, given the occasion of the 
State Luncheon to which the finest people in America were invited.
 
sandy.  
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RE: Social Notes from All Over

[Sanford Levinson]

Title: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression






Today's Washington Post includes the guest list for 
yesterday's lunch at the White House honoring His Royal Highness the Prince of 
Wales and his new wife, Camilla Parker-Bowles (Windsor, I assume).  
Among the distinguished guests were
 

Ms. Mary CheneyMs. Heather Poe (Guest) 
According to the Post, Ms. Poe is Ms. Cheney's companion.  So the 
question is this:  Does this represent a recognition by the White House 
that there is nothing wrong after all in what  most of us would call a 
"marriage-like" relationship between two men or two women (at least if one of 
them is the Vice President's daughter?)?  And if that is the case, as I 
suspect it is--George Bush has never been personally homophobic, so far as I 
know, independent of the political stances he has taken on the gay marriage 
issue--what does his "base," including some of the people on this list who have 
expressed concern about the threat posed to marriage by any recognition 
even of civil unions, think of this display of "compassionate 
conservatism"?  I assume, incidentally, that a White House lunch attended 
by, among others, the Chief Justice of the United States, Condoleza Rice, Tom 
Brokaw, Tom Watson (the golfer), Donald Rumsfeld, and other such luminaries, is 
a "public event" and thus it does not count as an "invasion of privacy" to note 
who was honored with an invitation and what symbol such an invitatinomight be 
said to convey.
 
sandy


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RE: FYI: An Interesting "See You at the Pole" Case

[Sanford Levinson]

Tom Berg writes in his very interesting post:
 
 
Moreover, although there are plenty of political issues on which official 
Catholic teaching tends to lean more to the left than to the right -- for 
example, active government involvement in poverty and welfare programs -- many 
of these are not constitutional issues that are really "in play."  
 
Tom is certainly right if "in play" means the active consideration of Frank 
Michelman's "Protecting the Poor Through the 14th Amendment."  But, of course, 
these issues are "in play" in lots and lots of statutory interpretation, and 
one can and should interpret statutes against notions of background 
constitutional values.  Even if one believes that the courts should not be in 
the affirmative rights game for institutional reasons, that does not entail 
that congressional statutes shouldn't be generously construed with regard to 
protecting the poor.
 
sandy  
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RE: Air Force sued over religious intolerance

[Sanford Levinson]

 

But the content of the worship must be free from regulation, as Title 10 
Section 6031 clearly allows:  "An officer in the chaplain corps may 
conduct public worship according to the manner and forms of the church of which 
he is a member."  I've yet to hear Chip, Sandy, Alan, Steve, or 
Paul people acknowledge the legitimacy of this law.  Were you a judge, 
would you uphold this law as written?  I'm asking.  
 
I do think such a law is legitimate on its face.  I suppose the one 
question is what happens if a particular service is thought to present a 
"threat" to the military along the lines we've been discussing.  But this 
would clearly be case-by-case, fact-intensive, as opposed to challenging the law 
above on its face.
 
sandy
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RE: Air Force sued over religious intolerance

[Sanford Levinson]

I'm not sure how important ownership is.  The question 
is what kind of forum is made available to chaplains on what reasonable 
terms.  Though I suppose it is an interesting side question if the military 
at Camp Lejune, e.g., could prohibit members of the armed forces from attending 
churches that were viewed as attempting to instill views that were disruptive to 
the "good order and morale."  I assume, but am willing to stand corrected, 
that members of the armed forces can be prohibited from attending political 
rallies on such grounds.
 
sandy


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Paul 
FinkelmanSent: Sunday, October 09, 2005 6:45 PMTo: Law 
& Religion issues for Law AcademicsSubject: Re: Air Force sued 
over religious intolerance
Sandy:  I have only just now joined this discussion and see it 
mostly as a theoreitcal problem. I would like to know a whole lot more about the 
invasion of the chapel, but for starters, I would assume that the Army owns the 
chapel, not the Priest? Does that affect things?  I think it 
might.Paul FinkelmanSanford Levinson wrote:

  
   
  .  Now as 
  law professors, as teachers of our future leaders, will you actually 
  teach your students that government should agree with them, and side 
  with Mr. Weinstein and Yale Divinity, and enter the Protestant Chapel to 
  silence the chaplain's speech with military policemen?  Sandy?  
  Paul?  Chip?  Alan?  I cannot think you really believe what 
  you're saying.  Please keep the government out of my chapel.  
  Please.  
   
   
  As 
  I've noted earlier, I find myself genuinely conflicted.  Generally 
  speaking, I'm not sympathetic to "military discipline" arguments in First 
  Amendment cases, but I can surely understand why the Armed Forces would try to 
  limit the freedom of soldiers, e.g., to engage in speech that would likely be 
  disruptive of "good order and morale" during wartime situations.  
  Similarly, I can understand why the military would be wary of speech that 
  emphasizes the divisions within the ranks between "saved" and "unsaved" (and 
  therefore "damned") soldiers, especially if one of the lessons being taught at 
  voluntary gatherings is the necessity to try to persuade those in the latter 
  category to change before they are killed and thus suffer eternal 
  damnation.  From the evangelical perspective, nothing, obviously could be 
  more important.  Yet, just as I cannot turn my constitutional law class 
  into a discussion of whether or not my students will suffer the eternal 
  torments of hell (or simply absence from God), I think that there are 
  reasonable limits that can be placed on the speech of military 
  chaplains.  But I am open to arguments on the other side, since I really 
  do find it a difficult issue.  
   
  sandy
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3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

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RE: Air Force sued over religious intolerance

[Sanford Levinson]

 
.  Now as law 
professors, as teachers of our future leaders, will you actually teach 
your students that government should agree with them, and side with 
Mr. Weinstein and Yale Divinity, and enter the Protestant Chapel to silence the 
chaplain's speech with military policemen?  Sandy?  Paul?  
Chip?  Alan?  I cannot think you really believe what you're 
saying.  Please keep the government out of my chapel.  Please.  

 
 
As 
I've noted earlier, I find myself genuinely conflicted.  Generally 
speaking, I'm not sympathetic to "military discipline" arguments in First 
Amendment cases, but I can surely understand why the Armed Forces would try to 
limit the freedom of soldiers, e.g., to engage in speech that would likely be 
disruptive of "good order and morale" during wartime situations.  
Similarly, I can understand why the military would be wary of speech that 
emphasizes the divisions within the ranks between "saved" and "unsaved" (and 
therefore "damned") soldiers, especially if one of the lessons being taught at 
voluntary gatherings is the necessity to try to persuade those in the latter 
category to change before they are killed and thus suffer eternal 
damnation.  From the evangelical perspective, nothing, obviously could be 
more important.  Yet, just as I cannot turn my constitutional law class 
into a discussion of whether or not my students will suffer the eternal torments 
of hell (or simply absence from God), I think that there are reasonable limits 
that can be placed on the speech of military chaplains.  But I am open to 
arguments on the other side, since I really do find it a difficult issue.  

 
sandy
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RE: Air Force sued over religious intolerance

[Sanford Levinson]

As some of you know, I 
have rather strong political views.  Yet I have argued in my constitutional 
law classes that it would be perfectly constitutional (and perhaps desirable to 
boot) if a condition of my employment were that I could not wear campaign 
buttons in my classes or otherwise make clearly political statements.  
(Indeed, I do not wear such buttons and I do not recall ever making statements 
of support for, or against, candidates, in class.)  Even more to the point, 
it is clearly the case that I cannot come in one morning and say, "Don't all of 
your realize that the most important question is whether you have achieved 
eternal salvation?  Therefore, we're devoting the rest of our time together 
to exploring how best to achieve that state."  I can be fired for not 
adhering to the job description that says I'm to talk about constitutional 
law.    
 
A chaplain, obviously, 
has a certain freedom to engage in overt religious activity, including telling 
those who show up voluntarily at services how lucky they are to be on the road 
to eternal life while everyone else is on the road to eternal damnation.  
[The memorial service is a close case.  Ultimately, I think that the desire 
of the military to protect unit cohesion takes precedence over the chaplain's 
freedom to make invidious comparisons of the deceased's religious choices as 
against thoseo who do not share his faith, but I can see the argument for the 
other side.]  In any event, the chaplain can clearly be told that 
there are limits to his/her evangelism with regard to those who are not 
voluntary attenders of what might be called "regular" services, just as there 
are certainly limits to my evangelizing, either politically or religiously, in 
my classroom.  The FE Clause is no stronger than the Free Speech Clause in 
such circumstances.
 
sandy
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AW: AW: UC system sued

[Sanford Levinson]

Rick writes:
 
 

 But doesn't it trouble Sandy, even a little, when a state university begins to 
censor textbooks, used in state-accredited high schools, for unacceptable 
viewpoints? 
 
My only honest answer is yes and no.  I.e., as I've argued earlier, all 
universities at all times are distinguishing between "acceptable" and 
"unacceptable" viewpoints.  So if I treat Rick's comment as a general point, 
then my answer is no, I'm not bothered one iota, since I can truly not conceive 
of an alternative.  But he's surely right that I would be very upset if a 
university discredited some viewpoint that I'm strongly committed to.  Such 
things, of course, were at the heart of a lot of the critique of universities 
in the 1960s, when I was a founding member of the Caucus for a New Political 
Science.  At the end of the day, one simply has to look at the concrete 
examples rather than offer glittering generalities.  
 
 
 
Does Sandy really believe that a student who graduated at the top of the class 
from one of the unapproved schools and who achieved high scores on the SAT or 
ACT is not academically prepared for the UC system?
 
It all depends on what one means by the notion of being "academically 
prepared."  And, of course, down the pike is grading down (or, more to the 
point, flunking) someone who persists in giving academically indefensible 
answers, like suggesting that there is evidence outside the Bible for Jews 
being in Sinai or outside the book of Mormon for the presence of Nephites and 
Lamanites in North America.  
 
 
There was another comment by Rick that I inadvertently erased asking if I 
didn't think the First Amendment was at least a bit implicated in such 
controversies.  I still tend to think the answer is no, for reasons given 
earlier about the irrelevance of content- and viewpoint-neutrality to assessing 
the way that universities organize themselves.
 
sandy
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Indeed, this policy could be seen as a declaration of war by UC against 
religious high schools that teach certain religious viewpoints in the classroom 
(not just in science class, but in history, social studies, and other courses). 
This is only one step removed from regulations that  withhold accreditation 
from private schools based upon the viewpoints taught in the classroom. Is 
Sandy really comfortable with this under the 1A?
 
Rick Duncan

Sanford Levinson <[EMAIL PROTECTED]> wrote:

I hope that Eugene, whose comments are entirely to the point, won't 
think that I'm breaching his very sound advice when I say that the arguments 
below, just as was the case with one of Rick's earlier postings on ID, seem to 
me to reject any notion at all of disciplinary expertise and put in their place 
a kind of pure populism.  As I've suggested earlier, there is no cogent way of 
understanding universitities as "content" or "viewpoint" neutral.  It simply 
makes no sense to treat UC the way one would treat a public park.  To insult 
university admissions committees as "eductractic functionaries" suggests that 
one may as well admit people by sheer lottery, which is the only way of 
achieving purely non-discretionary admissions.  If I've misunderstood the 
thrust of the argument, please explain.  
 
Assume, incidentally, that some university is so unwise to ask for an 
essay on "early settlement of North America," and a Mormon student elaborates 
the story of the Nephites and the Lamanites, something for which (like the 
Exodus from Egypt) there is not a scintilla of evidence other than the relevant 
holy books.  Would the committee really have to treat that answer as the equal 
to someone who was actually familiar with documented knowledge about early 
settlement (or Egyptian history). 
 
sandy



Von: [EMAIL PROTECTED] im Auftrag von Rick Duncan
Gesendet: Mo 29.08.2005 09:12
An: Law & Religion issues for Law Academics
Betreff: Re: UC system sued


Where do you draw the line?  Is it standards that reach into behaviors? 
 Is it over content?  Is it viewpoint?  Do you acknowledge that the 
Constitution puts any limitation on the discretion of these educractic 
functionaries?
 
If the Constitution is about anything in this area, it is about the 
business of depriving bureaucrats of standardless discretion.
 
Jim Henderson
Senior Counsel
ACLJ
 
I think Jim has put his finger on the pulse of this issue. To the 
extent that university officials are engaged in an ad hoc discretionary 
evaluation of which textbooks qualify for the admissions process, there are 
serious issues under both the Free Speech Clause and the Fr Ex Cl. I have just 
published an article 

AW: UC system sued

[Sanford Levinson]

I hope that Eugene, whose 
comments are entirely to the point, won't think that I'm breaching his very 
sound advice when I say that the arguments below, just as was the case with one 
of Rick's earlier postings on ID, seem to me to reject any notion at all of 
disciplinary expertise and put in their place a kind of pure populism.  As 
I've suggested earlier, there is no cogent way of understanding universitities 
as "content" or "viewpoint" neutral.  It simply makes no sense to treat UC 
the way one would treat a public park.  To insult university admissions 
committees as "eductractic functionaries" suggests that one may as well 
admit people by sheer lottery, which is the only way of achieving purely 
non-discretionary admissions.  If I've misunderstood the thrust of the 
argument, please explain.  
 
Assume, incidentally, that some university 
is so unwise to ask for an essay on "early settlement of North America," and a 
Mormon student elaborates the story of the Nephites and the Lamanites, something 
for which (like the Exodus from Egypt) there is not a scintilla of evidence 
other than the relevant holy books.  Would the committee really have to 
treat that answer as the equal to someone who was actually familiar with 
documented knowledge about early settlement (or Egyptian 
history). 
 
sandy


Von: [EMAIL PROTECTED] im 
Auftrag von Rick DuncanGesendet: Mo 29.08.2005 09:12An: 
Law & Religion issues for Law AcademicsBetreff: Re: UC system 
sued


Where do you draw the line?  Is it standards that reach into 
behaviors?  Is it over content?  Is it viewpoint?  Do you 
acknowledge that the Constitution puts any limitation on the discretion of these 
educractic functionaries?
 
If the Constitution is about anything in this area, it is about the 
business of depriving bureaucrats of standardless discretion.
 
Jim Henderson
Senior Counsel
ACLJ
 
I think Jim has put his finger on the pulse of this issue. To the extent 
that university officials are engaged in an ad hoc discretionary evaluation of 
which textbooks qualify for the admissions process, there are serious issues 
under both the Free Speech Clause and the Fr Ex Cl. I have just published an 
article discussing the "individualized" process rule of Sherbert (as Sherbert 
was transfigured in Smith and Lukumi): See Duncan, Free Exercise and 
Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious 
Liberty, 83 Neb. L.Rev. 1178 (2005).
 
I read the transfigured Sherbert as creating a categorical rule that takes 
a case out of the general rule of Smith and creates a safe harbor for religious 
liberty when government adopts an individualized process for allocating 
governmental burdens or benefits. An "individualized process" is one in which 
government officials determine eligibility for government benefits or exemptions 
from governmental burdens by exercising discretionary authority on a case by 
case basis.
 
I just mailed reprints last Friday, so many of you should be getting this 
article this week.I don't know exactly how it applies to the UC case, but both 
Fr Sp and Fr Ex are particularly vulnerable when government officials exercise 
discretionary control over which ideas taught in which high schools open 
the gates to taxpayer-funded higher education.
 
Cheers, Rick[EMAIL PROTECTED] wrote: 

  
  In a message dated 8/29/2005 6:53:35 A.M. Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  Surely 
a college or university can set standards for 
  admission! 
  
  Certainly they can.
   
  How about:  "No student shall be admitted to the regular course of 
  study without having first sworn allegiance to the government of the United 
  States and to the government of this State."
   
  How about:  "No student shall be admitted . . . . unless they shall 
  have shorn the hair on their head to a length of no more than 1/4 inch."
   
  The reason for the question I propounded earlier, about rejecting a 
  history course for credit because of its viewpoint preference for European 
  exploration and its failure to be politically correct about the exploitive 
  aspects of that grand adventure, was to try and flesh out exactly what 
  constitutional standards anyone will concede restrain the judgments to be made 
  in this area.
   
  Where do you draw the line?  Is it standards that reach into 
  behaviors?  Is it over content?  Is it viewpoint?  Do you 
  acknowledge that the Constitution puts any limitation on the discretion of 
  these educractic functionaries?
   
  If the Constitution is about anything in this area, it is about the 
  business of depriving bureaucrats of standardless discretion.
   
  Jim Henderson
  Senior Counsel
  ACLJ___To 
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RE: Hostility

[Sanford Levinson]

For what it is worth, I find 
much to agree with in Rick's thoughtful posting below.  The most 
fundamental question is at what point a society becomes so "pluralistic" and 
fragmented that it can no longer really be viewed as "our society," but, rather, 
a congeries of increasingly isolated sub-societies that feel almost no 
connections with one another and, indeed, may have a high degree of 
hostility.  I don't have any good answers to this dilemma.  As a 
practical matter, I favor public schools making a variety of accommodations with 
different groups.  I thus believe that Wallace v. Jaffree was a disastrous 
decision inasmuch as it might have had the consequences of driving people from 
the public schools--and the interactions among different groups--simply because 
of a legal formalism (i.e., the teacher's suggestion that one of the things the 
children could do in a moment of silence is "pray").  I also think that the 
Mozert case was wrongly decided insofar as Vicki Frost was asking for an opt-out 
rather than demanding that the school system teach her favorite materials to 
everyone (which is the way I see the ID controversy).  
 
sandy


From: [EMAIL PROTECTED] on 
behalf of Rick DuncanSent: Mon 8/22/2005 9:49 AMTo: Law 
& Religion issues for Law AcademicsSubject: 
Hostility

You know, I think the bottom line is our society is too pluralistic for a 
one-size-fits-all curriculum at the government school monopoly. 
 
I empathize with Sandy when he expresses concern about students being 
taught ID (and teachers being required to teach ID) in the public schools. Many 
others feel the same way about sex ed, gay pride week, and 
evolutio-as-fact in the government schools.
 
I still think Mike McConnell said it best when he said: "A secular 
school does not necessarily produce atheists, but it produces young adults who 
inevitably think of religion as extraneous to the real world of intellectual 
inquiry, if they think of religion at all." The public schools are designed to 
inculcate and assimilate and mold impressionable children--many believers simply 
don't like the mold designed (or did it evolve) by those who control the public 
school curriculum.
 
So many of the issues that cause deep friction among us concern who gets to 
control what our children are taught in the public schools. I wish we 
could agree to disagree, and go our separate ways to schools of our own 
choosing.
 
From my perspective, one of the advantages of teaching ID in the public 
schools is that it would allow liberal secularists to appreciate the value of 
opt-outs (parental excusals from objectionable curriculum), of academic freedom 
for teachers (as Sandy put it, of teachers required to teach things they 
disdain), and school choice (being allowed to exit without penalty).
 
Cheers, Rick Duncan
 
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RE: UFOs

[Sanford Levinson]

Rick writes:

So go ahead. Mock away. Teach about how UFOs, Flat Earth, Green Cheese on the 
Moon, and intelligent, purposeful, design for life are ideas only morons can 
accept. 
 
My point was that Mr. Davenport scarcely seemed to be a "moron."  Moreover, 
some of you may recall John Mack, the Harvard psychiatrist who found 
alien-abduction narratives to be credible.  Very smart people believe all sorts 
of things.  I don't believe that proponents of ID are "morons"; I simply am not 
convinced that their views have anything to do with science as conventionally 
understood.  (As I've written before, the word "conventionally" carries all 
sorts of baggage, which I'm willing to live with.)  The question is when should 
their (statistically) deviant views be welcomed (or, more to the point, forced) 
into the classroom.  I gather from the tone of Rick's comment that he is in 
fact not a fan of teaching that UFOs might be real (and that the US is covering 
up the evidence).  I don't know his views on alien abduction.  
 
sandy
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RE: UFOs

[Sanford Levinson]

This story will be in tomorrow's Boston Globe.  So the question is this:  
Should school boards be able to require to treat UFOs as a real possibility in 
those courses in which such information might conceivably be relevant (perhaps 
physics)?  Is the evidence for UFOs really weaker than for ID?  After all, Mr. 
Davenport seems quite well educated.  Should we expect President Bush to weigh 
in on UFOs?  (Do we think he's ever asked if the US is in fact covering up 
information about their existence?) 


 

sandy


 


Researcher feels certain UFOs exist


August 21, 2005

HOPKINSVILLE, Ky. --Peter Davenport has received more phone calls than he cares 
to count that have an unusual opening: "Please believe me, I'm not crazy."

For Davenport, director of the National UFO Reporting Center in Seattle, it's 
part of the job.

Davenport spoke Sunday at the Little Green Men Festival in Hopkinsville with 
tales of what he believes are some of the more fascinating, provable cases 
reported. The festival, at the Hopkinsville-Christian County Conference and 
Convention Center, commemorates the 50th anniversary of the Aug. 21, 1955, 
report of an alien invasion at Kelly.

After a lifetime of studying what many brush off as science fiction, Davenport 
is feels certain that UFOs exist and have been witnessed on Earth, and second, 
that the government has known about them for decades.

"I have not just a mountain of data, perhaps a mountain range of data. And I 
assure you, it's strictly by accident," Davenport told the Kentucky New Era in 
an interview.

Davenport has spent the last 11 years filing accounts and eyewitness reports of 
UFO sightings from a reporting center that consists of one phone, one fax, and 
one Web master, and is almost completely privately funded by Davenport and 
donations.

Davenport graduated Stanford with degrees in Russian and biology and received 
his MBA in finance and international business. But, years before receiving a 
master's degree in genetics and biochemistry of fish, Davenport heard of the 
Kelly Green Men incident on the radio.

The story from Kelly was one of several that piqued his interest in UFOs, which 
eventually led to his involvement in the National UFO Reporting Center.

Davenport said his perspective of UFO sightings took on a whole new dimension 
when he was 6-years-old on a July night in 1954. Davenport said that's when he, 
his mom and brother saw a strange object in the sky while at a drive-in theater 
on the edge of the St. Louis Airport.

"We didn't know it at the time, but my father, and people in the tower on the 
north side of the airport, were looking at the same object with their 
binoculars," he said.

Davenport said the object was about the size of the moon, bright red like a 
traffic signal and slightly oval in shape.

"And (it) stopped, almost stock-still, in the sky to the east of our location. 
People were getting out of their cars," Davenport said. "It was casting a red 
light ... all over the theater, all over the airport, as far as we could see."

Since then, Davenport has logged literally thousands of calls about colored 
lights, flying triangles and hovering disks on his web site, but he's hesistant 
to say any two are the same sighting.

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RE: No Secular Purpose

[Sanford Levinson]

Title: Re: No Secular Purpose





Frank writes:
 
. But I think that fact shows that in both EC 
and FE contexts  beliefs are protected absolutely (actions and practices, 
of course, are a different matter), which means that they cannot be the basis 
for restricting a citizen’s liberties. But, of course, we aren't really 
talking about "restricting a citizen's liberty" to believe in ID, which is 
absolutely protected.  The discussion is whether citizens can in effect 
foist those views on the public schools by virtue of capturing control of a 
school board.  And, for better or for worse, the Lemon test, which has 
never successfully been slain, so far as I know, strikes down legislation that 
is "motivated" by a religious purpose.  As Marshall wrote in paragraph 42 
of McCulloch, courts must always be open to the possibility that any given piece 
of legislation is being defended by "pretextual" arguments and, therefore, be 
willing to "pierce the veil," as it were, of the strategic 
misrepresentation.  
 
sandy



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RE: No Secular Purpose

[Sanford Levinson]

Title: Re: No Secular Purpose





Francis Beckwith 
writes:
.  Motives, after all, are types of 
beliefs that causally contribute to bringing about certain actions. But beliefs 
are off limits, according to the Court’s Jeffersonian tradition. 
   So, if you accept that tradition, religious motives can not be 
part of any court’s assessment.  But this simply cannot be 
true if one believes, for example, that the FE Clause protects certain behavior 
when engaged in for religious motives, but not otherwise.  One can argue 
that courts aren't very skilled in identifying motivation, not least because 
there may be an incentive to engage in strategic misrepresentation, but one 
literally could not understand FE law without bringing motives (and beliefs) 
into the equation.  
 
sandy



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RE: Religious Polygamy

[Sanford Levinson]

 



From: [EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sun 8/21/2005 1:15 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Polygamy


Does Sandy now agree with me that male on male anal sodomy is "victim-causing" 
behavior? 
 
I don't think it violates "minimum rationality" so to hold.  The question in 
Lawrence, as Rick himself suggested in his last posting,  is ultimately whether 
"minimum rationality" is good enough, or whether there is indeed a fundamental 
right to intimate relationships, which therefore would require that 
state-imposed limitations pass "strict scrutiny," including being the 
least-intrusive means.  To take the easiest example, it seems to me that two 
HI-negative males should have a constitutional right to express themselves 
sexually with each other however they wish.  If Rick is sincere in shifting the 
argument from "moral grounds alone" to some instrumental justification, then I 
don't see how he could avoid this conclusion.  (And it also seems to me, as I 
suggested earlier, that all heterosexual couples, including husbands and wives, 
could be subjected to the same duty to take HIV tests in order to be free of 
the state's criminal law.)
 
sandy
 
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RE: Religious Polygamy

[Sanford Levinson]

I think that "consensual 
adultery" should indeed be protected.  But that is obviously a very tiny 
subset of the behavior subsumed under laws prohibiting adultery.
 
So is Rick defending the criminalization 
only of male-on-male anal sodomy, but not, say, the criminalization of fellatio 
or cunninlingus?  Actually, I assume he would defend the criminalization of 
all anal sodomy, including heterosexual (and between married couples, unless the 
married couples had passed HIV tests, but it that is enough to save heterosexual 
anal sodomy, then why wouldn't sodomy between men who were both HIV negative be 
equally all right).  
 
sandy


From: [EMAIL PROTECTED] on 
behalf of Rick DuncanSent: Sun 8/21/2005 12:41 PMTo: Law 
& Religion issues for Law AcademicsSubject: RE: Religious 
Polygamy

Sandy: If W consents to H's adultery with X, exactly who is the victim? 
Doesn't Lawrence recognize the dignity of consenting adults to define 
their own intimate lives?
 
And isn't male on male anal sodomy "victim causing" in terms of AIDS and 
other STDs that are disproportiantely spread by this type of behavior?
 
Cheers, RickSanford Levinson 
<[EMAIL PROTECTED]> wrote:

  

  
  Rick writes:
   
   
  
  
  
  The only possible crime (assuming all 
  parties are consenting adults) is adultery, and criminal adultery laws 
  probably don't survive Lawrence (or do they?). 
  
   
  I'm not sure why adultery laws wouldn't 
  survive Recall that Blackmun, in his Bowers dissent, took care to indicate 
  that his argument didn't extent to adultery or incest.  

   
  Lawrence, at least as a matter of formal 
  analysis, inasmuch as we it is certainly rational to view adultery as a 
  victim-creating activity and a well-substantiated threat to 
  marriage.   Those of us who support same-sex marriage (not to 
  mention the far easier case of Lawrence) view the actions as creating no 
  victims and, in fact, probably strengthening the institution of 
  marriage.  (Ironically, the ban on incest, at least between adults, is 
  probably harder to defend after Lawrence.)
   
  sandy___To 
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  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 
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RE: Religious Polygamy

[Sanford Levinson]

Rick writes:
 
 



The only possible crime (assuming all 
parties are consenting adults) is adultery, and criminal adultery laws 
probably don't survive Lawrence (or do they?). 

 
I'm not sure why adultery laws wouldn't 
survive Recall that Blackmun, in his Bowers dissent, took care to indicate that 
his argument didn't extent to adultery or incest.  
 
Lawrence, at least as a matter of formal 
analysis, inasmuch as we it is certainly rational to view adultery as a 
victim-creating activity and a well-substantiated threat to 
marriage.   Those of us who support same-sex marriage (not to mention 
the far easier case of Lawrence) view the actions as creating no victims and, in 
fact, probably strengthening the institution of marriage.  (Ironically, the 
ban on incest, at least between adults, is probably harder to defend after 
Lawrence.)
 
sandy




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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

tomorrow's NYTimes will have a very interesting story on the 
Discovery Institute.
 
http://www.nytimes.com/2005/08/21/national/21evolve.html?ei=5094&en=88f0b94e7eb26357&hp=&ex=1124596800&partner=homepage&pagewanted=print
 
Among other interesting quotes is the following:
 
"All ideas go through three stages - first they're ignored, then 
they're attacked, then they're accepted," said Jay W. Richards, a philosopher 
and the institute's vice president. "We're kind of beyond the ignored stage. 
We're somewhere in the attack."
 
This is, of course, demonstrably false.  Most ideas, like most 
small businesses, end up being rejected because they're unsound.  It is 
true that, of those ideas that are in fact accepted, there is often a history of 
initial rejection, but this is an entirely different proposition from suggesting 
that most ideas that are attacked are worthy of acceptance.  Ordinarily, 
this would be a nit-picking point, but in this case I wonder.  Perhaps the 
apparently philosophically trained Mr. Richards simply misspoke or, as is 
altogether possible, was misquoted.  But surely he should realize that 
there is no empirical or logical connection between an idea's being attacked and 
its being true (or later accepted).
 
sandy
 
 
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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

 
Jim 
writes:




  I believe you have a heart.  I suggested nothing to the 
  contrary.  I think a physician who believes his competence is confined to 
  the clinical observation that brain and heart function has irreversibly 
  ceased is not aware of all of his competencies, and doesn't reflect the great 
  tradition in medicine.
   
   
  We surely agree on this.  A doctor who simply says, "You're son has 
  died.  Face up to it" is a lout.  And it is also fair to say that 
  medical education (and thus the notion of the "practice of medicine" should 
  include some attention to empathy and the _expression_ of basic human 
  concern.  (One might say much the same thing about legal training, 
  incidentally.)  But I was responding to a specific example about what 
  might be called religious solace.  Can we compromise on something like 
  this:  If a parent says, "I'm sure that Tom is in heaven right now," my 
  kind of doctor should say, "I certainly hope so."  (I have no reason not 
  to hope that the statement is true; I simply have no reason to think 
  it is.)  
   
  sandy___
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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

Rick 
writes:
Whether it is good science or bad science is for elected 
officials in charge of the schools--not federal courts--to decide. 
 
This is actually quite a bizarre notion.  It may be, as a 
matter of constitutional law, that public school officials have the legal right 
to make all sorts of rationally indefensible decisions.  (Certainly 
presidents seem to have that right!)  But it is a logical error to say that 
scientifically ignorant elected officials have the competence to determine what 
is "good science or bad science," unless one accepts a radically populist 
epistemology that simply foregoes any notion of expert knowledge.  This is 
not only the view that everyone has a right to his/her own opinion, but, rather, 
that there is really no way to tell the difference between defensible and 
indefensible views beyond putting it up to the majority vote of a school board, 
state legislature, etc.  It is like the (apocryphal?) Indiana legislature 
that legislated a new number for pi because it's so troublesome to view it as a 
number literally without end.  
 
As a "constitutional protestant," I do not in fact believe that one 
needs to go to law school (or be a lawyer) in order to say cogent things about 
the Constitution.  But I am not a "medical protestant"; i.e., I do in fact 
expect people who call themselves "doctors" to have gone to medical school and 
to offer advice within the accepted conventions of medical practice.  (At 
this point, we could segue into a discussion, once more, of Christian Science, 
which is not, in any rational sense "science," even if one believes that it is 
entitled to a certain degree of accommodation under the Free Exercise 
Clause.)  
 
When judges decide what is "good science or bad science," they are 
not, I believe, making "first-order" decisions.  Rick is absolutely correct 
that the typical federal judge has no more competence in scientific matters than 
any other lay person.  But what the judges do is to listen to people who 
are certified by the community as "real scientists" and to determine whether 
there is a genuine controvversy within the community of "real scientists" as to 
what is the case.  Given my own post-modernist tendencies, I am happy to 
concede that "real science" is "socially constructed" and the like.  But, 
as Stanley Fish and many others have pointed out, rejection of certain 
foundationalist philosophies has "no consequences" for the way one actually acts 
in the world, and I still prefer to go to certified MDs when I have an illness 
rather than the neighbor next door.  
 
I continue to wonder what Rick's views are about teaching astrology 
as an "interesting" (and legitimate?) alternative to ordinary explanations of 
explaining events.  
 
sandy
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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

There are all sorts of 
ways to provide comfort.  But a nonbelieving physician would simply be 
lying if he/she said "I'm sure you're son is in heaven."  S/he could say, 
"I have some sense of how you feel because my own child/parent/sibling died 
recently," or "I can only dimly imagine the grief you must feel, because Tom was 
such a fine child, and I have been spared such a tragedy as occurred to your 
family."  I would like to think that I have a heart that I have displayed 
over the years, but I have never lied about the afterlife, about which I believe 
we know absolutely nothing.  
 
sandy



From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of [EMAIL PROTECTED]Sent: Friday, August 19, 2005 3:33 
PMTo: religionlaw@lists.ucla.eduSubject: Re: Findings on 
Hostility at Smithsonian Noted in NRO Article


In a message dated 8/19/2005 4:15:55 P.M. Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
A physician qua 
  physician simply has no professional competence to say, "I'm sure you're son 
  is in heaven" OR "You're son's life has no meaning other than the meaning you 
  choose to give it."  

No professional competence to provide comfort?  Sometimes when I read 
this list, I think I've fallen into a Dean Koontz novel.  The rise of the 
healing arts was surely more rapid because the Hippocratic Oath assured patients 
that the physician had a good heart, not an evil one, or, in the case of Sandy's 
physican, no heart at all.
 
Jim Henderson
Senior Counsel
ACLJ 
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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

I don't think the Establishment Clause requires that 
labelling; I think that respect for science requires it.  Indeed, I think 
it might violate the EC to force teachers who reject ID to present it as 
"serious science" instead of theology masking as science.
 
I have no objection at all to teaching the history of 
Christianity in the public schools.  Indeed, I think that students need to 
be more aware than they are of the history of theological possibilities, as 
part of their general education.  But I would object very strongly to 
presenting a book that presupposes that Jesus is the Messiah, 
instead of someone who is thought by millions of people to be the 
Messiah.
 
I commend, incidentally, the New Republic article for 
which Michael Masinter gave the link.  It's a superb, and I believe 
devastating, review.  
 
sandy


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Rick 
DuncanSent: Friday, August 19, 2005 3:21 PMTo: Law & 
Religion issues for Law AcademicsSubject: RE: Findings on Hostility 
at Smithsonian Noted in NRO Article

Sandy reads the EC as requiring a book, that could lawfully be taught in 
the public schools, to be labelled "pseudo science" before 
being assigned. This view of Sandy's about the EC strikes me as 
"pseudo law."  
 
Cheers, Rick DuncanSanford Levinson 
<[EMAIL PROTECTED]> wrote:

  
  Let me put the question this way for Sandy and Mark: Do they really 
  believe it would violate the EC for a public school to assign, say, Behe's 
  Darwin's Black Box for a high school science class? Is this 
  really the same thing as wanting to teach "malevolent design" or "the 
  Protocols of the Elders of Zion" in public school?  
   
  I 
  would have no objection at all to assigning the Behe book in a section on 
  "pseudo science," perhaps together with a phrenology text or an astrological 
  one.  But I presume this is not the kind of response that Rick 
  wants.  (Similarly, I would certainly consider assigning the Protocols in 
  a course on 20th century intellectual history in a unit on "vicious 
  propaganda.")  The debate 
  really isn't about the abstract possibility of assigning just about anything 
  under the sun.  It's about the "purpose" of assignment. I see no 
  reason at all to require biology teachers to "teach" a book that, presumably, 
  most of them disdain.  It would be the equivalent of forcing me to teach 
  Lynn Cheney's view of American history without being able to portray it as the 
  very exemplar of biased, tendentious, ideological history.
   
  sandy___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


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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

I believe the only proper response of a biologist or 
physicist is that the question of whether there is any "meaning" or "point" to 
life, either in general or in particular, is the subject of a different 
course.  A physician qua physician simply has no professional competence to 
say, "I'm sure you're son is in heaven" OR "You're son's life has no meaning 
other than the meaning you choose to give it."  
 
Indeed, I think it is widely agreed that for a scientist 
nothing whatsoever follows from accepting divine creation, unless, of course, 
one teaches "miracles" and other suspensions of ordinary scientific 
propositions.  But if science indeed consists of testable propositions, 
there is, I believe, nothing at all testable about ID.  Query, assume that 
someone says that the Constitution of the US was in fact written by God.  
Would that have any consequences at all for how we interpret the document?  
For an answer that the answer is no, see the entire history of Talmudic 
interpretation.
 
sandy


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, 
MarkSent: Friday, August 19, 2005 12:55 PMTo: 'Law & 
Religion issues for Law Academics'Subject: RE: Findings on Hostility 
at Smithsonian Noted in NRO Article


If the argument from 
design was demolished in the 18th Century, as Sandy argues, then it must 
have been on philosophical or religious grounds, rather than scientific ones. 
Darwin's On the Origin of 
Species was not published until 1859. See, e.g., http://pages.britishlibrary.net/charles.darwin/texts/origin1859/origin_fm.html. 
If intelligent design was ruled out on nonscientific grounds, then one might ask 
whether that "ruling out" itself violates the Establishment Clause. Note that 
the second part of Bobby's explanation of why intelligent design was rejected is 
an explicitly theological argument about the nature of any posited deity. 
(Aside: I believe many philosophers have accepted that Alvin Plantinga has shown 
that there is no necessary contradiction between the existence of evil in the 
world and the existence of a benevolent deity.)
 
On the general question 
of intelligent design, here is a comment (written, I think, by Amitai Etzioni) 
from the Communitarian Network's e-mail newsletter (Communitarian Letter #2, 
8/19/2005) with respect to 
intelligent design:
 
Intelligent Design: A 
common ground?
 
 
Progressives are up 
in arms about the movement to teach Intelligent Design in public schools.  
They depict advocates of ID as Machiavellians trying to sneak creationism into 
the curriculum.  They roundly condemn these people.
 
At the same time, 
progressives are recognizing that many Americans are concerned about values in 
general, often religious, spiritual and transcendental matters.  How was 
the world FIRST created?  Where are we destined to go?  Why are we 
born to die?
 
Attempts to answer 
such questions in solely scientific terms are not going to do the trick.  
Whatever science tells us, those of us who are looking for normative answers 
will not be satisfied.  To tell a grieving parent that their child died 
because his heart failed does not address the question they are asking.  
Similarly, to tell people concerned about where we came from and where we are 
headed, that we came from apes and going to become worm feed, does not cut it. 

 
Many scientists, when 
not in a confrontational mood, admit that there are normative questions science 
cannot and is not meant to address.  Call these questions 
"otherwordly."  As long as ID advocates raise these questions and wonder if 
they do not point us to a master creator, there is no reason I can see to oppose 
them.  However, if they proceed to claim that they have "The Answer," and 
of course if they try to force creationism into the curricula, then the time is 
right to say "wait a moment, not in our public schools."
 

What are your 
thoughts and comments on this topic?  Please let us know by emailing your 
ideas to [EMAIL PROTECTED].
 
 
 
 
 

Mark S. 
Scarberry
Pepperdine University 
School of Law
 
-Original 
Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]] 
Sent: Friday, August 19, 2005 
10:03 AMTo: 
religionlaw@lists.ucla.eduSubject: Re: Findings on Hostility at 
Smithsonian Noted in NRO Article
 


In a 
message dated 8/19/2005 11:41:05 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  But, of 
  course, ID is not a new idea.  It is the classic "argument from design" 
  that was put forth (and, for most of us, demolished) in the 18th 
  century. 

The 
standard demolition is twofold: (1) anything having any integrity at all 
will exhibit patterns and structures.  If so, the fact of design--patterns 
and structures--doesn't provide any evidence of a designer. (Statistical 
analysis of the probabilities of this particular pattern being random is always 
enormously controversial.) (2) If there is a designer, the problem of evil 
and suffering is surely trig

RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

Let me put the question this way for Sandy and Mark: Do they really 
believe it would violate the EC for a public school to assign, say, Behe's 
Darwin's Black Box for a high school science class? Is this 
really the same thing as wanting to teach "malevolent design" or "the Protocols 
of the Elders of Zion" in public school?  
 
I 
would have no objection at all to assigning the Behe book in a section on 
"pseudo science," perhaps together with a phrenology text or an astrological 
one.  But I presume this is not the kind of response that Rick 
wants.  (Similarly, I would certainly consider assigning the Protocols in a 
course on 20th century intellectual history in a unit on "vicious 
propaganda.")  The debate 
really isn't about the abstract possibility of assigning just about anything 
under the sun.  It's about the "purpose" of assignment. I see no 
reason at all to require biology teachers to "teach" a book that, presumably, 
most of them disdain.  It would be the equivalent of forcing me to teach 
Lynn Cheney's view of American history without being able to portray it as the 
very exemplar of biased, tendentious, ideological history.
 
sandy
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RE: Findings on Hostility at Smithsonian Noted in NRO Article

[Sanford Levinson]

 
Rick writes:
 
I am not (nor do I have any desire to be) a scientist. But I do teach and write 
about free speech, and when I hear that the powers that be are trying to 
suppress a new idea, my 1A instincts are triggered and go into high gear.
 
 
But, of course, ID is not a new idea.  It is the classic "argument from design" 
that was put forth (and, for most of us, demolished) in the 18th century.  I'm 
just curious whether Rick's belief that all "new ideas" (however one defines 
"newness") should get classroom time extends to holocaust denial and astrology. 
 The fact is that concepts of the First Amendment that work for "public fora" 
literally make no sense for the university, which is in the business of 
distinguishing between good and bad ideas and teaching only the former (and 
portraying the latter as what they are, bad ways of thinking).
 
sandy
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RE: Massachusetts proposals to force church disclosures

[Sanford Levinson]

Vince Koven 
writes:
 
I suppose that depends on how you define 
"anti-Catholic," but the proponents of this legislation (all Catholics, so far 
as I can tell) are adopting the *political* stance of supporting the lay 
Catholics who have been critical of church-closing decisions. More votes in the 
pews than in the pulpits, I guess. 
 
I think this raises a very interesting question going 
well beyond the specific example.  Many people who have studied abortion 
note that women are basically split on the issue, which makes it problematic to 
argue that those of us who support reproductive choice (as I do) are "pro-women" 
and those against are "anti."  Similarly, one of the things that 
Clarence Thomas and Ward Connerly have taught us is that African-Americans do 
not necessarily support affirmative action and, indeed, are willing to argue 
that it is functionally anti-Black to support it.  I don't agree, but 
I'm not sure that I'm any longer willing to say that opponents of affirmative 
action are "anti-African American."  If one accepts Catholic theology, 
then I suppose that the "pro-Catholic" position is indeed the pulpit (and 
ultimately the Papacy) rather than what the laity happen to profess, but that is 
obviously a tendentious argument (for most of us).  With regard to almost 
all Protestant denominations (or Judaism), there would certainly be no reason at 
all to reject the laity in favor of ministers or 
rabbis.   
 
sandy

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RE: Cupertino case dismissed

[Sanford Levinson]

   I am reading an absolutely terrific manuscript by 
Columbia historian Richard Bushman, a biography of Joseph Smith, which is 
extremely illuminating on LDS theology.  (Not the least interesting feature 
of the manuscript is Bushman's threading the needle with regard to the 
ontological status of the gold plates that Smith is said to have discovered and 
translated, given that Bushman himself is a serious Mormon and also, as a 
world-class historian, fully aware that most of his readers will not credit the 
claims made by Smith and the Church.)
 
In any 
event, I have begun to wonder if there any cases involving LDS public 
school teachers who have, say, suggested to their students that the Book of 
Mormon stands to the Christian Bible as the "New Testament" stands, within 
Christianity, to the "Old Testmant," i.e., its completion?  (I take it this 
is an accurate statement of LDS theology.)  I assume that such a statement 
would not go over well with traditional Christians (among others).  Most of 
the cases that have come up in regard to the Cupertino case have involved 
Christians.  I know there are some Mormon student cases, but I'm curious if 
there are Mormon schoolteacher ones.
 
sandy
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RE: !RE: FW: Feature films on church and state

[Sanford Levinson]

Reading Rick's response to Mark, I wonder if Rick 
places any epistemological limits on parental concerns for the souls of their 
children.  I assume that anyone on this list can conjure up a suitably 
exotic group that believes in, say, Venusian gods who communicate their commands 
from spaceships.  I hesitate to believe that Rick would give such 
parents--who want to refuse medical treatment to save their child because the 
Venusian god has (seemingly) commanded otherwise, at the cost of the child's 
immortal soul--the same deference as, say, Jehovah's Witnesses (if it is true 
that he would allow JW parents to reject transfusions).  Is Rick so much a 
relativist that he refuses to countenance the very possibility of "delusional 
views" so long as the parents are "loving" and sincerely concerned with the 
immortal welfare of their children?  Does Rick really believe that 
children are under the absolute sovereignty of parents (who view themsleves as 
bound to a divine sovereign) and not at all subject to the sovereignty of the 
state?  

 
sandy


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Rick 
DuncanSent: Friday, August 12, 2005 3:29 PMTo: Law & 
Religion issues for Law AcademicsSubject: Re: !RE: FW: Feature films 
on church and state

Mark Tushnet writes:
 
I read the summary Rick directed us to, and I'm a bit puzzled.  
The doctor intervened in a situation where (the summary says) "there are only 
two options--surgery or death."  As a result of the intervention, the alien 
boy's physical life is preserved, but in the end his parents kill him because, 
as they put it, "This was not our son. This was only a shell. There was nothing 
to do but end the pain of the shell."  What I'm puzzled about is why Rick 
describes this outcome as a disaster.  It turns out that the (physical) 
outcome was death either way.  And that death resulted from the parents' 
acting on their beliefs at least as much as from the surgeon's 
intervention.  I suppose this might be described as a disaster if one 
shared the parents' religious beliefs -- but, because they are entirely 
fictional, I don't see how anyone could.  It would be different if some 
obviously bad consequences occurred by means other than the parents' 
choices.  One could describe the episode, as summarized, as about free will 
and determinism, or about the bad consequences of religious fanaticism.  
(One thing it's not about is the bad consequences of government intervention, 
because the surgeon refuses to comply with the government representative's 
direction not to perform the surgery.)
I think I said the results were "tragic" not a 
"disaster." The actual episode is a bit more complicated than the summary. The 
doctor is the government--he is the medical director of the government 
space station. True, he ignores the instructions of the Commander in charge of 
the space station, but this still represents government acting against 
the religiously-motivated wishes of the family. True, the boy ends up 
dead either way, but because of the govt. doctor's decision, he ends up 
spiritually harmed and his parents are forced to kill him rather than allow him 
to die from the disease that would have killed him.
I like this film because it deals with perhaps the most difficult Fr Ex 
issue--if the govt acts, the boy forfeits his soul; if the govt does not act, he 
dies of a curable disease. The Fr Ex interest is high and the govt has a 
compelling interest. Plus, even when most of us think the govt has done the 
right thing by saving the boy's life, it backfires and we end up with the worst 
case scenario.
We see the issue through the doctor's governmental eyes (a view that most of 
us understand, because a young life is at stake), but also through the eyes of 
the parents (who believe some things are worse than death) and the child (who 
loves his parents and trusts them, is old enough to have religious views of his 
own, and he seems to share the faith of his parents; he wants to live and keep 
his soul--but that is not an option if his religion is true).
It is a great teaching tool. We discussed all these issues and more before we 
read a single Fr Ex case. It also is a great exercise in religious tolerance. 
The parents are not raving fundamentalists--they are deeply religious and also 
deeply loving parents. They want the best for their child, but in the secular 
eyes of the govt doc, they look like raving lunatics.And notice if the govt 
intervenes here, it is necessarily saying that the parents' belief in 
the threat to the child's soul is false and delusional. If the 
parents belief is true, death is the lesser of two 
evil choices.  This is really a fun way to begin a discussion of 
Fr Ex.
Cheers, Rick Duncan
Marc Stern <[EMAIL PROTECTED]> 
wrote:

  
  
  
  

  

  
  LAW SCHOOL IS JUST NOT WHAT IT 
  USED TO BE. We never got to watch movies in 
class!
  Marc 
  Stern
   
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PRO