Re: Recommendation...
Prior to the post by the distinguished list custodian, I had noted yesterday that since the discussion was drifting off topic, it was probably time to move from Biblical interpretation back to law. However, based upon the tone of Professor Finklemans post, I feel compelled to respond. I do know what polygamy is, being married to more than one woman at the same time. My quotation of my uncle was an attempt to be light-hearted and avoid personal disparagement. However, Professor Finkleman is wrong. Trading her in for 2 twenties would be polygamy, at least if one married the two twenties. As an aside, the studies show that in the schismatic Mormon groups that still practice polygamy, that is exactly what happens. I no longer have the study, but I as best memory serves, over 90% of the time each new wife is younger than her husbands other wives he married before her. I see no reason to beat a dead horse it is unlikely that anyone minds will be changed. However, once again an inference from the lack of condemnation is reasonable. To state that since the Bible (and we seem only to be discussing the Hebrew Bible: clearly Jesus and Paul spoke against both polygamy and serial polygamy), we can infer, or it seems, or it is arguable that polygamy does not violate Bible moral standards. However, the original statement: Biblical law of course allows polygamy[,] goes far beyond that. Not to mention, that however much dismissed, both the passage in Deuteronomy, and the condemnation of Solomon for violating the prohibition in Deuteronomy suggests that there are at least diverse Biblical authors with contradictory views, and as for serial polygamy, the latter prophets, particularly Malachi assert that God hates divorce. Obviously, I must be as ignorant as Professor Finkleman thinks. The merits of the argument that since the Bible never explicitly endorses polygamy, but ignores it far more often than condemning it, permits an inference that it is permissible is beside the point. If anyone on this list submitted a paper in which he or she argued that a case repeated referenced a certain conduct in the factual history without any direct condemnation, that of course the holding of the case was that the conduct was legal, I think we would all fail the student or at least require a re-write. I certainly hope so, if not it may explain much contemporary lawyering. That was the force of my comment about proof texting. When challenged, rather than say, yes, there is not explicit approval of polygamy in the Bible, but I think the most likely inference from the lack of condemnation of polygamists is, instead, like my Bible thumpers analogy, it was repeated asserted by several individuals that this was an explicit approval, not a very defensible inference. As I noted in my first sentence of my first post, I have no idea who Mr. Lofton is or the nature of his organization. There is always a context. Likely, I (especially since I do not know what polygamy means) are consigned to the same pigeon hole as he in the minds of some. However, as best my admitted limited intellectual, now hobbled further by middle age and too many semesters of 400 plus students, can grasp, Biblical law of course allows polygamy still seems beyond cavil to be at least an overstatement. If I am wrong, I apologize and ask the forgiveness of Mr. Finkleman, Mr. Lipkin, Mr. Brayton, and any others. Rest assured it is the product of my intellectual limitations, not ill will. Once again, I thank each and everyone who took time to respond to my thoughts. Steve Prescott ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Recommendation...
Ed Brayton wrote: I don't think it's true to say we can be absolutely certain that God does anything. I would call this evidence of incoherence within the Bible, owing to multiple writers and their own views, not as evidence of what God actually said or did. Fair enough, this goes to ones personal beliefs concerning the validity and nature of the Bible, or in Mr. Loftons terminology hermeneutic. Interesting, and ultimately probably more important, but it is not really relevant to the post. Whether one believes that the Bible is Gods self-revelation, or an anthology of the sometimes contradictory writings of diverse religious thinkers whose views often disagreed, the point remains that to say either God OR the Biblical writers approved of polygamy goes beyond the text. At most, one can say that God or the diverse Biblical authors never expressly condemned polygamy, so one could infer that they say no moral objections thereto. Indeed, you view that the Bible is inchoheren[t], I have went into Bluebook mode I last used when I clerked for a federal judge, makes the claim that the Biblical writers had a monolithic view on polygamy more likely. From you understanding of the nature of the Biblical text, certainly a view that could be defended from the evidence, it might be more accurate to say that some of the Biblical authors seemed to have no moral objections to polygamy. Ed Brayton wrote: Read in context, this chapter is saying that you will have a king, but it admonishes the future king not to enrich himself as his people's expense. Thus, it says, he shall not multiply horses, or silver, or wives. This indicates that wives were, like silver and horses, considered among the trappings of wealth and power. This is not a commandment against polygamy at all, it is a commandment against kings taking riches for themselves rather than looking after their people. Again, this is a plausible reading, although in my view a strained one. However, it actually says that wives will turn the kings heart from God. However, accepting arguendo your interpretation, it still is a prohibition against polygamy, at least for the king, whatever the motivation. And the text actually says And he shall not multiply wives for himself, lest his heart turn away; nor shall he greatly multiply for himself silver and gold. Deuteronomy 17:17 New King James Version. Even if the authors purpose was to keep the king focused on his people, not riches including wives, the command was not to greatly multiply riches not too much, but not to multiply wives period. Whatever the goal, it is a command against polygamy for kings. While all of this is interesting, I obviously failed to communicate my basic point. Paul Finkleman wrote: Biblical law of course allows polygamy. I have two objections. Professor Finklemans statement quoted (cut and pasted, my typing is not good enough for me to type quotes) is at best, an overstatement. There simply is no Biblical law that says polygamy is fine, go for it guys, when she turns 40 trade her in for two 20-year olds. A really bad joke a now deceased uncle of mine liked to tell. Again, at most one might infer from the Bible that God or some of the diverse Biblical authors with contradictory views seemed to have no objection. My second object is that when Mr. Lofton asked where this Biblical law was, or in his words where in the Bible God approved of polygamy, he was hit with a barrage of proof texting that would embarrass the most shallow Bible thumper. So and so did it, that proves there is a Biblical law endorsing polygamy. Further objections were met with disparaging comments. I am sure that it was an off-hand statement of something that was believed to be true. When one has graded as many essay exams as I, and doubtless many others on this forum, have, you realize that people know many things that are not true. It seems to be that Mr. Lofton made a valid point, even if not phrased in the most gracious wording possible. The statement that Biblical law of course allows polygamy is at most an inference. Again, I may just not get it, but that seems indisputable to me. Further pursuing this line of interaction is probably fruitless and it is getting pretty far from Religion and Law and closer to Biblical Interpretation. I think we will have to just agree to disagree. However, I do appreciate you engaging my views and thank you for your critique Mr. Brayton. Steve Prescott ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Recommendation...
A valid point, the Bible does condemn certain items, so we do not have to infer the Biblical view from circumstanial evidence. However, that cuts both ways. The Bible condemns drunkness. Yet, Noah is in no way criticized in the Biblical text for his intoxication. Rather, a son Ham is condemned severely for not covering up the results of his father's sin. God (or at least according to the author, God Himself not only does not condemn Noah's intoxication, but punishs one who took advantage of Noah's sin. In this case we can be absolutely certain that the silence of God does not demonstrate approval since intoxication is expressly condemned in the Biblical text.. Therefore, the seeming silence of God in response to polygamy does not prove divine approbation, only that God and/or the Biblical writers chose not to deal with that topic, just as likely an inference, it was not relevant to the spiritual point the author was making. Moreover, at least for rulers the Bible does explicitly forbid polygramy in the passage I referenced, Deuteronomy 17:17. For complete context, vv. 17 -20. By the way I am hardly a Bible scholar, but that passage is in many catechisms and I am old enough to have been taught Bible stories in Sunday School (and public elementary school). Although I had to get on line to remember the reference it is a verse that immediately came to mind. [www.olivetree.com lets one do a textual search of a dozen plus versions, remember 3 or 4 words and it takes 30 seconds to find the passage.] The reason I posted was the shrill, indeed almost abusive tone of the attacks on Mr. Lofton. My basic contention: The argument that since the Biblical narrative does not condemn (although it never explicitly approves) a number of important Biblical characters who were polygamists, polygamy seems not to violate the Biblical moral code is a legitimate inference from the circumstantial evidence. However, several times the flat out statement was made that the Bible supported polygamy. Mr. Lofton asked for a reference, where was this explicit approbation oif polygamy in the Bible? (well he asked where God approved of it.] The response was the statement of fact that so and so was a polygamist, not as an arguement from inference, but rather it was asserted that was a positive statement of approval, which of course, it is not, coupled with ad hominem attacks (eccentric) up Mr. Lofton. You are probably right, I may just not get it. However, it seems to me Mr. Lofton is correct. You and the others have a very plausble circumstantial argument, but the repeated statement of his critics that the Bible approves of polygamy is simply not true, or at least misleading. Arguably, the Bible approves of polygamy; yes, that is true, one can argue that. [At least it would be if Deut. 17:17 were not in the text. The irony is that if even the most strident Biblical literalist, who tried to limit the verse to rulers, the reference to Luther would be wrong since it was to a ruler. Poor choice of exmaple.] But to bluntly state that the Bible approves of polygamy, as it does monotheism for example, seems an overstatement. In the first month of law school in Legal Research and Writing it seemed the course consisted of forced every student to rewrite the endless most recent draft of his or her memo to be precise and accurate in what the case stated. Again, perhaps I just do not get it, but it seems to me that it is time to be precise. The several times repeated statement that the Bible approves of polygamy is an inference, a reasonable one, but misleading, if not wrong. I still think that Mr. Lofton was correct, and that the tone of the criticism of him, strident and personal reflects that. My brother-in-law is a minister. He often quotes a ministerial proverb, "Weak point, pound pulpit." Thank you Mr. Brayton for your response. We will probably just have to agree to disagree, but I appreciate you interacting with a non-specialist such as I. Steve Prescott From: Ed Brayton <[EMAIL PROTECTED]>Reply-To: Law & Religion issues for Law Academics To: Law & Religion issues for Law Academics Subject: Re: Recommendation...Date: Fri, 01 Sep 2006 20:14:43 -0400Stephen R. Prescott, Esq. wrote:>Basically a lurker on this list, wisdom would no doubt be for me to >remain silent. Yet, "fools rush in where angels fail to trod." I >have no idea who Mr. Lofton is or the nature of the group with which >he is associated. However, acknowledging the stellar credentials of >his critics, its seems to me that the arguments of Professor >Finkleman and supporters are the ones that are circular. The basic >premise that people in the Bible did something, or at least that >"partiarchs" did it means that God sanctions and condons the >behavior is begging the question. Certainly, people in the Bible >committed murder, adultery, and became intoxicated (Noah immediately >after the flood episode ends). As I think Mr. Lofton is stating, >t
Re: Recommendation...
Basically a lurker on this list, wisdom would no doubt be for me to remain silent. Yet, "fools rush in where angels fail to trod." I have no idea who Mr. Lofton is or the nature of the group with which he is associated. However, acknowledging the stellar credentials of his critics, its seems to me that the arguments of Professor Finkleman and supporters are the ones that are circular. The basic premise that people in the Bible did something, or at least that "partiarchs" did it means that God sanctions and condons the behavior is begging the question. Certainly, people in the Bible committed murder, adultery, and became intoxicated (Noah immediately after the flood episode ends). As I think Mr. Lofton is stating, the mere fact that a "super hero" like Noah, of whom God does not express any disapprove, does not merit an absolute statement that "The Bible permits intoxication." And that is the sum total of Professor Finkleman, et al's argument: Some Biblical characters did it, therefore God approves of it. I do not understand what the statement "Some of us do not read the Bible that way means." What way? Why is that relevant? It seems to me that Mr. Lofton is not the one displaying an eccentric interpretation? He asks a straightforward question (maybe not in an irenic tone), Where does God ever explicitly state that He (She/It) approves of polygamy? The answer, No where directly, but since there were some Biblical heroes who were polygamists, that suggests that God approves is a reasonable and rational argument. However, it is only a contention, a supposition, a conjectural inference drawn from the narrative. Similarly, the opposition argument that the Biblical authors always point out the agony and domestic strife that comes with polygamy, e.g. Abram, Sarai & Hagar; Penniah & wives, Solomon & wives, David & family problems is a rational argument that the Bible implies that God disapproves of polygamy. However, it does not support an absolute statement that the Bible condemns polygamy any more than the presence of polygamists in the Biblical narrative supports that the absolute statement that the Bible (or God) approves of polygamy. The weight of both arguments is the same, drawing a reasonable, but hardly irrefutable conclusion from circumstantial evidence. The attacks upon Mr. Lofton definitely seem a case of "me thinks that the lady protesth too much." Although not a Bible scholar, I am confident in stating that the Bible, neither attributing the statement to the deity, or elsewhere explicitly approves of polygamy. At most, several people are polygamists, and God does not directly judge or condemn their polygamy. However, and I waited because I felt someone would quickly answer the question, at least for the king, the Bible does expressly forbid polygamy. Neither shall he multiply wives to himself, that his heart turn not away: Dueternomy 17:17. I know no reason to think that only the King should not have his heart turned from God, so it certainly suggests that the Bible and/or God disapproves of polygamy. As for Martin Luther's advise to Philip of Hesse, in direct violation of the Biblical teaching (he was a king), Luther, Philip and the cause of the Protestant Reformation all suffered from this foolish (and if one adopts eccentric interpretation) sinful advice. It is scary, a professor of Business Law has to supply the Biblical answers. From: "Paul Finkelman" <[EMAIL PROTECTED]>Reply-To: Law & Religion issues for Law Academics To: Subject: Re: Recommendation...Date: Fri, 01 Sep 2006 16:28:59 -0400Didn't Jacob have two wive and also childern with two "handmaidens" asthey were called? I am not at the office or home, so have no Bible tocheck.Paul FinkelmanPaul FinkelmanPresident William McKinley Distinguished Professor of Law and Public PolicyAlbany Law School80 New Scotland AvenueAlbany, New York 12208-3494518-445-3386[EMAIL PROTECTED]>>> [EMAIL PROTECTED] 09/01/06 3:13 PM >>>Marc Stern wrote:>Jacob had four wives. And see Exodus 21:10; Deut 21:15 all of which>assume polygamy.>>In the context of an old testament that provides regulations forvirtually everything, down to what kind of fabrics to wear and what toeat, it's hardly unreasonable to conclude that the lack of condemnationof polygamy is evidence of God's approval. This is especially true whenhe offered revelation both through and about men who engaged inpolygamy, and he allegedly gave them many blessings. What's thealternative explanation, that it slipped his mind? That he saw fit totell us how to conduct ourselves in the most banal and irrelevant itemslike how long to keep our hair, but couldn't be bothered to say "onlymarry one person"? Or for that matter, "don't own other human beings"?It just doesn't add up.Ed Brayton___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, seehttp://lists.ucla.edu/
RE: Kermit Hall
As Kermit's student at the University of Florida, I add my sadness at learning of Dr. Hall's untimely death. Although I have not seen him much since he supervised my M.A. thesis in my J.D./M.A. program, I was greatly enriched both intellectually and personally by him. One example of his generosity - although he had left UF for his first administrative position as Dean of the College of Arts and Sciences at the U of Tula, when for some snafu UF was not able to pay for him to return for my defense, Kermit fly back at his own expense for my defense - as well as for 3 other of his students. A private man, but a man of integrity with a good heart. I wanted to speak to his character, many will extol his scholarship which speaks for itself. Stephen R. Prescott From: [EMAIL PROTECTED]Reply-To: Law & Religion issues for Law Academics To: Law & Religion issues for Law Academics , Mark Graber <[EMAIL PROTECTED]>CC: religionlaw@lists.ucla.eduSubject: Kermit HallDate: Mon, 14 Aug 2006 08:30:07 -0500 (CDT)It is with great sadness I report to the list the death of my good friend and co-author Kermit Hall. He died of an apparent heart attack yesterday afternoon. Kermit was a significant constitutional historian and was serving as President of the State University of New York at Albany. His death is a great loss to legal scholarhip (as well as a great personal loss to many of us).Paul FinkelmanAlbany Law School[EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Kermit Hall
Sorry, I should read what I write before hitting send. It is the first day of classes. It should read "Kermit flew back at his own expense." From: "Stephen R. Prescott, Esq." <[EMAIL PROTECTED]>Reply-To: Law & Religion issues for Law Academics To: religionlaw@lists.ucla.eduSubject: RE: Kermit HallDate: Mon, 14 Aug 2006 11:27:03 -0500 As Kermit's student at the University of Florida, I add my sadness at learning of Dr. Hall's untimely death. Although I have not seen him much since he supervised my M.A. thesis in my J.D./M.A. program, I was greatly enriched both intellectually and personally by him. One example of his generosity - although he had left UF for his first administrative position as Dean of the College of Arts and Sciences at the U of Tula, when for some snafu UF was not able to pay for him to return for my defense, Kermit fly back at his own expense for my defense - as well as for 3 other of his students. A private man, but a man of integrity with a good heart. I wanted to speak to his character, many will extol his scholarship which speaks for itself. Stephen R. Prescott From: [EMAIL PROTECTED]Reply-To: Law & Religion issues for Law Academics To: Law & Religion issues for Law Academics , Mark Graber <[EMAIL PROTECTED]>CC: religionlaw@lists.ucla.eduSubject: Kermit HallDate: Mon, 14 Aug 2006 08:30:07 -0500 (CDT)It is with great sadness I report to the list the death of my good friend and co-author Kermit Hall. He died of an apparent heart attack yesterday afternoon. Kermit was a significant constitutional historian and was serving as President of the State University of New York at Albany. His death is a great loss to legal scholarhip (as well as a great personal loss to many of us).Paul FinkelmanAlbany Law School[EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey Question
I would like to inject my situation in North Carolina into the picture. The North Carolina statute looks at the institution, not what the student is studying. Originally, "pervasively sectarian" institutions were prohibited from participating by court decree. Accounting majors at sectarian colleges were excluded, theology majors at non-sectarian schools were eligible. An old three-judge federal district court concluded without any real discussion that "everyone knew" that Duke was non-sectarian and ministerial students (which Duke does have) could receive the grant. Belmont Abbey, a Catholic college, however was sectarian, although it has a liberal arts program and its accounting, education, business, chemistry, etc students were ineligble. The law was then changed after a U.S.S.C. opinion dealing with another jurisdiction seemed to proclude the "prevasively sectarian" standard in a higher education context. The amended law excluded "seminaries, Bible colleges, and Bible institutes," which terms are not defined. It also excluded students "studying for the ministry." However, the grant is only available to undergraduate students and the colleges took the position that undergraduate Bible and religion majors were pre-seminary and by definition, no undergraduate was "studying for the ministry." The state said nothing, and in fact every private undergraduate college in the program awards the grants to Bible and religion majors, even if declared as ministerial students and has done so for over 30 years. Two colleges were excluded by the state. Roanoke Bible College because of its name and Southeastern College at Wake Forest at which I then taught and directed the Social Studies Education program. SECWF is an undergraduate liberal arts college established by Southeastern Baptist Theological Seminary. Its corporate name is "Southeastern College at Wake Forest, a School of the Southeastern Baptist Theological Seminary" (I am not sure the lawyer should keep his license - a joke). The relation is like Harvard University and Harvard Divinity School or Harvard Law School, except the professional (seminary) school is the parent of the liberal arts program. SECWF is SACS and NCATE accredited and largely prepares public school teachers, as does Roanoke Bible College. The statute was passed before SECWF existed and no one had ever thought about it until I brought it up. Roanoke had failed in an earlier attempt to get the statute changed. After Davey was decided by the Ninth Circuit and cert granted, but before oral argument, I took this as a project. The other schools indicated they would fight adding the two excluded schools, ostensibly because of fear that the whole program would be declared unconstitutional, cynics said to avoid sharing the pie. To get around this road block, legislation was introduced creating a parallel program. It simply said any school which was not eligible for the other grant and then meets the following requirements which were copied word-for-word from the other statute except for the exlusion of seminaries, Bible colleges, and Bible institutes and students studying for the ministry would receive the alternative grant. [One of the requirements is SACS accreditation so a "Bible institute" in the basement of a local church is not an issue, it must have a fully accredited program.) I testified 4 times before the General Assembly and convinced them (with the help of letters from Professors Duncan, Rice, and Volokh whom I thank) that the N C. statute was unconstitutional, believing that the Ninth Circuit would be affirmed. This scared the members of the General Assembly enough that after 6 months of thrice weekly trips to the Legislative Building the bill was passed and signed by the Governor. Had Davey came down earlier it would have went the other way I think. I have not read Davey in about a year, but my memory is the thurst is that a state may elect not to subsidize the training of clegy without violating the Free Exercise Clause, but may choose to aid clerical students on the same basis as non-clerical students without violating the Establishment Clause. I understood the focus to have been on ministerial preparation and "devotional theology major" was used more or less interchangably with ministerial preparation. 1. Is not the North Carolina statute unconstitutional even under Davey since it excludes schools, presumably based on their legal name on the articles of incorporation, even if the school has no religious courses, academic or "devotional"? Could a "seminary" (a few schools still have this as their legal name since seminary was not limited to theological training in the 19th century but meant lower-division liberal arts and they still have a charter saying seminary although they have a DBA of college) be excluded even if it offered no courses in religion, devotonal or non-devotoinal. Can a Bible college's non-religious majors be excluded? 2. For all but a fe
RE: Free Exercise Clause and government employees
I composed my response before the question of the extent and exact nature of the UW policy had been raised based on my (perhaps mistaken) reading of a news report. I accept Steve Sanders point that I need to know the specifics of the policy prior to declaring it to be religious discrimination. If anyone does know what the policy states and how it is applied I would appreciate being informed. It still seems to me that there are First Amendment religion clause concerns (and certainly free speech). The RA is a state employee, albeit a temporary one at the lowest rung of the ladder. I certainly do think that during "office hours" the university could prohibit the RA from holding a Bible study or advising a student to seek the answer to his/her problems in the Bible. However, as I understand it, this involved an RA holding a Bible study in his dorm room. RAs are in some sense on call or on duty 24 hours per day, or perhaps all evening and night, and are expected to be available for emergencies. However, being available seems different than "office hours." An analogy can be drawn to police officers. Many are expected to be available 24 hours a day for emergency calls. Surely, it would be a violation of an officer's freedom of religion to decree that he/her could not teach a Bible study because he or she might be called and thus was "on the job." [This is not conjectural, when I was a prosecutor the Captain in command of detectives of the local police force was expected to available 24/7 for emergencies. He taught Bible classes on Sunday morning, Sunday evening, and Wednesday evening at his church. I once called him during this time; I know that his detectives did often. Surely, he could not have been told that he could never teach a Bible class because he might be contacted by telephone or police radio for advice or instruction (very common) or even called to the station (rare but not unheard of) during the time he was teaching his Bible classes.] Is this still not viewpoint discrimination which raises constitutional concerns under the religion and speech (not the focus of this forum) clauses of the First Amendment? Assuming that the RA is not leading the Bible class during designated work time, but during time he is free to watch football, play ping pong, etc., etc. is whether the RA leads the Bible study in his dorm room or over at the Student Union really significant? Conceding that his dorm room may in some sense be his "workplace," is the university's professed fear that when a student learns of the RA's beliefs he or she will fear being judged any different at a different location? Would not such student also fear being judged if the RA left each Sunday morning for church? Could the school order the employee to not reveal to any student that he or she went to church or led a Bible study at an offcampus apartment? Even if the school forbids any controversial activities in the dorm room, it seems to me that the blanket prohibition on religious speech raises constitutional questions not obviated by the school's possible viewpoint discrimination in some others areas. Steve Prescott ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Bible study ban for RA's in UW-Eau Claire dorms
I think Steve Sanders for his post. I agree that the fact that the RA is an employee complicates this situation a little. However, it seems to me that this is just the type of discrimination that the Free Exercise Clause is designed to prevent. It is, of course, true that no one is required to accept a job as an R.A. If a person's religious beliefs preventing him or her from fulfilling some aspect of the job requirements, Free Exercise doctrine (and Title VII) would require the employer to make a reasonable accomodation, but only if the accomodation imposed no more than a trivial burdern. However, there appears to be no allegation that the RA is not fulfilling all job requirements. This strikes me as a case of pure religious discrimination. The proffered reason that college students would not approach an RA who leads a Bible study for fear of being judged seems contrived. College students are adults, and in the highly speculative case that a student felt intimidated, there are doubtless other R.A.s, Assistant Deans of Students/Men/Women, counselors, infirmary staff, etc. The claim that this is designed to protect students seems incredulous. I suspect this ban is limited to the Bible. If the fear truly was that students would feel intimidated, then a study of The Communist Manifesto by a Marxist student in his dorm room would certainly be forbidden. After all, Marx taught that the proletariat should rise up and kill the bourgeoise (probably at least half of the student body in most universities). Of course, no school would stop a Marxis RA from leading a voluntary study of The Communist Manifest, and advocating that one be killed is surely intimidating. Nor I suspect would UW forbid a Hindu RA from having a study of the Vedas in his room even though non-vegetarians (wild guess 90% of the student body) might be intimidated, or a Muslim student for leading a study of the Koran, even though a straightforward reading of the text condemns all women to hell. [I have read Islamic theology and I do realize that many Islamic theologians in the last century have interpreted the text in various ways that do not reach that result.] I think it is highly unlikely that UW would ban a study of Marx, the Vedas, the Koran, or dozens of other texts (and certainly they should not). I confess to being something of a cynic, but this seems a blatant case of certainly anti-religious discrimination, and probably anti-Judeo-Christian discrimination. This seems to be just the type of situtation that both clauses of the freedom of religion provision of the First Amendment forbid. Once again, I think Steve Sanders for his thoughtful post. Steve Prescott From: "Steve Sanders" <[EMAIL PROTECTED]>Reply-To: Law & Religion issues for Law Academics To: "'Law & Religion issues for Law Academics'" Subject: RE: Bible study ban for RA's in UW-Eau Claire dormsDate: Tue, 8 Nov 2005 11:36:37 -0800 The point is, though, that this persons home is also state property, making it akin to professors classroom. If it were a different arrangement he came to the dorm for an 8-hour shift advising students, then went back to his own off-campus apartment obviously the university could not dictate what he did in his home during his off-time. An RA at a public institution is a rather unique status: a state actor whose job requires that he live onsite, who is essentially on duty 24 hours a day (at least when hes on the premises), and who is compensated in the form of free housing for making this sacrifice of freedom and privacy. We know from free-exercise doctrine that a university could decline to accommodate an RA whose religion required him to attend services or observe sabbath on a schedule that would impose unreasonable demands on fellow employees. And I imagine that under public employee speech doctrine, the university also could prohibit the RA from posting certain discriminatory social or political messages on his door messages that ordinary dorm residents would be more free to post. There is, of course, no entitlement to a job as an RA; its usually at least somewhat selective. If an RA feels a clash of conscience between his special and demanding role and his desire to spend time spreading religious or other messages, he is free not to accept this particular employment. Steve Sanders From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad M PardeeSent: Tuesday, November 08, 2005 8:53 AMTo: religionlaw@lists.ucla.eduSubject: Bible study ban for RA's in UW-Eau Claire dorms To me, this ban seems rather difficult to justify. To say that an RA can't host a bible study in his home on campus is absurd. They try to say that the RA could host it off-campus, but "that if the studies continued, students might not find them 'approachable' or might fear they'd be 'judged or pushed in a direction that does not work for them.'" That's not a question of where the Bible study is held but
Re: Air Force sued over religious intolerance
It seems to me that the suit seeks far more than a ban on "involuntary" conversion. It seeks to ban attempts to convert or prostylize OR attempting "to involuntarily convert . . ." It looks like the plaintiff contents that any attempt to convert or prostylize (I think that is what chaplains do) is per se off limits. Short of a gun the head, attempting to "involuntarily convert" is an oxymoron. I doubt that the real objective of the plaintiff is to prevent attempts at involuntary conversion. If the only goal of the suit is to prevent service men and women from being forced to attend religious services against their will - I doubt if anyone on this list would disagree. However, it appears to be an attempt to compel silence from any person with whose religious views the plaintiff disagrees. Steve Prescott From: Steven Jamar <[EMAIL PROTECTED]>Reply-To: Law & Religion issues for Law Academics To: Law & Religion issues for Law Academics Subject: Re: Air Force sued over religious intoleranceDate: Fri, 7 Oct 2005 12:14:09 -0400Brad, let me quote what you quoted: On Oct 6, 2005, at 1:52 PM, Brad M Pardee wrote: 2) The lawsuit "asks the Air Force to prohibit its members including chaplains from evangelizing and proselytizing or in any related way attempting 'to involuntarily convert, pressure, exhort or persuade a fellow member of the USAF to accept their own religious beliefs while on duty.'" emphasis added by me. Isn't this exactly the standard you are asking for? Does it not allow voluntary discussions of the type you want? I also think you are overestimating the internal strength of most people, armed forces leaders included, if you think a senior cadet or any teacher is not in an inherently superior position to a new recruit, or even another student peer. I think you may also be underestimating the effect of years of propaganda on even the most internally focused person. People can be persuaded by constant refrain of many heinous things, let alone by more seemingly benign promises of salvation. Steve -- 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://www.law.howard.edu/faculty/pages/jamar/ "In these words I can sum up everything I've learned about life: It goes on." Robert Frost ___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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Regulations for non-professional Biblical counselors
My understanding of Nally is the same as that of Professor Laycock. That is certainly what I teach the M.Div. students when I teach my course on Legal Issues for the Minister once a year. At one time our degree was in counseling, the nomenclature was changed to Biblical counseling to make clear to both students in the program and the public at large that this was non-professional Biblical counseling. The purported second rule certainly has free speech issues (and very bad public policy), however, the third and fourth rules still strike me as beyond the pale. As long as it is accurate, it seems to me that Biblical counselors, law professors, the psychic hotline, and anyone else can advertise and charge for their services, however dubious those services may seem to the majority of the populace. Steve Original Message Follows From: dlaycock <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Subject: Re: Regulations for non-professional Biblical counselors Date: Tue, 12 Oct 2004 18:47:48 -0500 In the Nally v. Grace Community Church (Cal. 1986 or so, the Court of Appeals held a pastoral counselor liable for "clergy malpractice" because he did not "effectively" refer the counselee to a secular psychologist. That seems to be the opposite of the regulatory theory of rule 2 below. In fact the pastor had sent the kid to secular counselors; he had been hospitalized on the psychiatric ward and then released, and then refused to return. The California Supreme Court reversed and, my recollection is, said there was no such tort as clergy malpractice. Mark Tushnet wrote: >Passing the question of constitutionality, guideline #2 seems quite >lunatic unless it's interpreted to mean that one of these counselors >can say, "Speaking not as a counselor but as a lay person, I think >you sound depressed and I think it might be helpful if you saw a >doctor." (And, speaking again not as a specialist, I would think >that some such formulation would be important in setting up defenses >to possible actions for breach of fiduciary duty.) > > > > > > > > >Like many seminaries, the seminary division of the school where I >teach offers an M.A. in Biblical counseling requiring about 1 year >of graduate work in religion and one year of graduate work in >counseling. The degree is not designed to prepare graduate for >licensure or professional practice (some take additional work at the >local state university and qualify to sit for licensure exams, but >that is another issue). Rather it is designed to prepare ministers >with basic skills to provide marriage counseling, grief counseling, >etc., usually in a local church context. > >One of the faculty members who teaches in the program (a clincial >psychologist) has told me that the Board which regulates counselors >in North Carolina has issued a set of what it styles the >requirements for persons who provide Biblical counseling. As far as >I have been able to determine, these are not formal rules, but >rather guidelines. My colleague is somewhat oblique on the exact >nature of the "regulations." > >1. The Biblical counselor must be very preicse in describing >himself or herself - Biblical counselor not counselor, etc. > >OK > >2. The Biblical counselor must not even make a suggestive or >hypothetical diagnosis - "It sounds to me like you might be >depressed, I think you should see a doctor." OR "What you are >describing is sometimes symptomatic of bipolar disorder, I think you >should consult a physician." > >Questionable, but OK > >3. They cannot put an advertisement in the Yellow Pages, not even a >line within the ad for the church which employees or sponsors the >Biblical counselor stating that "counseling is available." > >This strikes me as blantantly unconstitutional. > >4. Neither the Biblical counselor nor the church can charge a fee >for counseling, although a box for voluntary donations is acceptable >as long as giving is strictly optional and no amounts are suggested. > >Again, this seems clearly unconstitutional. > >Does anyone want to comment. > >Steve Prescott, Southeastern College at Wake Forest > > > >___ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed >as private. Anyone can subscribe to the list and read messages that >are posted; people can read the Web archives; and list members can >(rightly or wrongly) forward the messages to others. > > >___
Regulations for non-professional Biblical counselors
Like many seminaries, the seminary division of the school where I teach offers an M.A. in Biblical counseling requiring about 1 year of graduate work in religion and one year of graduate work in counseling. The degree is not designed to prepare graduate for licensure or professional practice (some take additional work at the local state university and qualify to sit for licensure exams, but that is another issue). Rather it is designed to prepare ministers with basic skills to provide marriage counseling, grief counseling, etc., usually in a local church context. One of the faculty members who teaches in the program (a clincial psychologist) has told me that the Board which regulates counselors in North Carolina has issued a set of what it styles the requirements for persons who provide Biblical counseling. As far as I have been able to determine, these are not formal rules, but rather guidelines. My colleague is somewhat oblique on the exact nature of the "regulations." 1. The Biblical counselor must be very preicse in describing himself or herself - Biblical counselor not counselor, etc. OK 2. The Biblical counselor must not even make a suggestive or hypothetical diagnosis - "It sounds to me like you might be depressed, I think you should see a doctor." OR "What you are describing is sometimes symptomatic of bipolar disorder, I think you should consult a physician." Questionable, but OK 3. They cannot put an advertisement in the Yellow Pages, not even a line within the ad for the church which employees or sponsors the Biblical counselor stating that "counseling is available." This strikes me as blantantly unconstitutional. 4. Neither the Biblical counselor nor the church can charge a fee for counseling, although a box for voluntary donations is acceptable as long as giving is strictly optional and no amounts are suggested. Again, this seems clearly unconstitutional. Does anyone want to comment. Steve Prescott, Southeastern College at Wake Forest ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: A Mitchell v. Helms question
As one who teaches in a conservative Southern Baptist-affiliated school, I can assure you such "principled separationists" do exist. We have a few students, not very many but one or two, who will not accept the North Carolina state grant, which is mailed directly to the student, on separation of church and state grounds. Now whether that is what O'Connor envisioned in her concuring opinion, I have no idea. Steve Prescott Southeastern College at Wake Forest Original Message Follows From: Douglas Laycock <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> Subject: Re: A Mitchell v. Helms question Date: Mon, 19 Jul 2004 12:27:05 -0500 The only thing I could figure was that a principled separationist attending a religious school could refuse to claim or use his voucher. But with per capita distribution to the school, his share of the money would go to the school whether he wanted it to or not. When I try to imagine such a principled separationist, and guess whether there is even one somewhere in the country, and what comes to mind is Nozick aggressively litigating his rights under the Cambridge rent control ordinance. But maybe it could happen. At 09:49 AM 7/19/2004 -0700, you wrote: >In her concurrence in Mitchell v. Helms, Justice O'Connor gives >three reasons for distinguishing indirect aid through private >intermediaries (vouchers) from per capita direct aid to religious >schools. Her first reason is that "when the government provides aid >directly to the student beneficiary, that student can attend a >religious school and yet retain control over whether the secular >government aid will be applied toward the religious education . . ." > >I'm not sure what O'Connor is envisioning here. Does anybody know, >or think they know? Chip Lupu and Bob Tuttle in their Notre Dame >piece on Zelman suggest that this is the only one of O'Connor's >distinctions that makes any sense -- But I'm still not sure I get >it. What are the recipients of the voucher supposed to do with it - >if they don't give it to the religious school their child attends? > >(I'm teaching a class on this next Fall on this material -- I'm >trying to fill holes in my notes.) > >Alan Brownstein >UC Davis > >___ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Dont just search. Find. Check out the new MSN Search! ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
A very interesting thread. My question is what is the legal implied representation. Yes, if one is selling securities he or she implies that they are registered as required by law. If one is selling real estate or offering legal advice, he or she implies that he or she has the license to do so that is required by law. The religious body may well be making a representation that it has screened the clergyman in whatever way implied by law, but off hand I can think of no law requiring any background checks for a parish minister. Does anyone know of any?Steve Prescott Southeastern College at Wake Forest, Southeastern Baptist Theological Seminary Original Message Follows From: "Ross S. Heckmann" <[EMAIL PROTECTED]> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> Subject: Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11 Date: Fri, 9 Jul 2004 10:50:59 -0700 - Original Message - [Excerpted] From: Will Esser [My response is in bold in between square brackets--Ross Heckmann] That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). [The authority I alluded to earlier in this thread is that which states that for purposes of liability for fradulent misrepresentation, a person makes an implied representation that he is complying with the law in connection with what he has undertaken to do. If he is performing services as a contractor, he impliedly represents that he has obtained a contractor's license as required by law. If he is selling securities, he impliedly represents that those securities have been registered and/or qualified as required by law (or that there are exceptions applicable to such requirements). In this case, the religious body would be making an implied representation that it has screened its priests, religious officials, or other employees, in whatever way that has been required by law. I doubt that liability for fraudulent misrepresentations should be extended further.] Would such an "implied" representation be supportable under the First Amendment (i.e. is it permissible for the law to imply representations by a religious organization about the qualities or qualifications of its religious ministers)? . . . . it strikes me as a question which would fall within the ministerial exception. [I suppose we could ask more broadly, can the government require a religious body to screen its religious officials in any way whatsoever before they are permitted to have any private contact with a young person (e.g., counseling)? Or does the First Amendment bar the imposition of such a requirement, and a religious body may, if it chooses, free from all government-imposed liability, hire a known, serial pedophile to have private contact with a young person? Surely this is one case where the ministerial exception should not be absolute. Please correct me if I am wrong, because I am not trying to put words into your mouth, but I believe you have acknowledged that some form of liability is appropriate under certain circumstances (albeit not necessarily for fraud).] Regards, Will [Very truly yours, Ross S. Heckmann Attorney at Law Arcadia, California] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Check out the latest news, polls and tools in the MSN 2004 Election Guide! ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
