stocking rule

[Steven Green]

In follow-up to Marty's comments, isn't comparison to the business stocking
rule a red herring?  As many have pointed out, pharmacies have many reasons
not to carry every drug: supply and demand; availability; storage space,
etc.  Based on my personal experience and in having a child with a special
need, pharmacies are always willing, if not eager for the $, to order a
drug they don't carry.  So by not carrying a drug they are not "refusing"
to do so in the same manner as in Stormans.  So is it accurate to say that
pharmacies receive an exemption for business reasons that they wouldn't for
religious reasons?

Steve

-- 
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732
___
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Re: Muslim-focused "reflection room" in airport

[Steven Green]

I tend to agree with Chip and Alan about permissible accommodations
generally but share Sandy's concern about the proliferation of
sect-specific "chapels."  (Clearly government funds are used via airport
bonds and other taxes via the quasi-governmental port authorities).  I am
reminded about entering the "interdenominational" chapel at Boston's Logan
Airport many years ago and being taken aback by its orientation toward the
Catholic Church (crucifixes, etc).  These have often not been
interdenominational in reality.  Providing a new place for a faith that has
previously felt excluded from a space, while commendable on one level, does
not move us in the right direction.  Airports should stick with one
inclusive "reflection" room.

Steve


-- 
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732

On Wed, Oct 28, 2015 at 12:11 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

> Is it at all relevant that we’re talking about $250,000 instead of, say,
> $25,000 for a more modest chapel.  And it sounds as this is an attempt to
> curry favor not only with Moslem passengers (perfectly appropriate), but
> also specifically with the Emirate Airline, which one presumes is Islamic
> in ownership.  Could an airport eager to get El Al’s business promise a
> lavish chapel for Jewish passengers (perhaps with suitably segregated
> seating for the Orthodox), as against a specifically “Jewish chapel” to go
> along with “Protestant” and “Catholic” and other denominational chapels
> that might be provided?
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Justin Butterfield
> *Sent:* Wednesday, October 28, 2015 12:58 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Muslim-focused "reflection room" in airport
>
>
>
> I agree that there's a possible accommodation approach that would allow
> the reflection room as well.
>
>
>
> Setting aside accommodation, the Sixth Circuit rests pretty strongly on
> neutrality as the guiding principle in holding that government funds may be
> used to refurbish churches, which seems more like your hypothetical . *Am.
> Atheists, Inc. v. City of Detroit Downtown Dev. Auth.,* 567 F.3d 278 (6th
> Cir. 2009). In that opinion, the Sixth Circuit said, "Since *Tilton,* the
> Court repeatedly has held that the Establishment Clause does not require
> the government to exclude religious groups from participating in
> open-access programs that make state-owned buildings available to all
> comers, even if such groups use the property for 'religious worship and
> religious discussion.' *Widmar,* 454 U.S. At 265, 270–75; *see Good News
> Club,* 533 U.S. At 113–14, 119; *Lamb's Chapel,* 508 U.S. At 394–95; *see
> also Rosenberger,* 515 U.S. at 839–46. What mattered in those cases was
> not that religious activity took place in facilities that the State had
> built and paid to maintain, but that the government provided access to
> those facilities on equal terms to all, ensuring that whatever use the
> groups made of them could not be chalked up to the State." *Am. Atheists,* 567
> F.3d at 299.
>
>
>
> Justin
>
>
>
> ---
> *Justin Butterfield*
> Senior Counsel
> Liberty Institute
> Tel.: (972) 941-4451
> Fax.: (972) 941-4457
> jbutterfi...@libertyinstitute.org
> www.libertyinstitute.org
>
> CONFIDENTIALITY NOTICE
> This electronic mail message and any accompanying documents contain
> information belonging to the sender that is confidential and legally
> privileged. This information is intended only for the use of the individual
> or entity to whom it was sent. If you are not the intended recipient, any
> disclosure, copying, distribution, or action taken in reliance on the
> contents of the information contained in this electronic mail message is
> strictly prohibited. If you have received this message in error, please
> delete it immediately and call (972) 941-4451 to advise me that you
> received it. Thank you.
> PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK
> PRODUCT
>
>
>
> *From: *Ira Lupu 
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Wednesday, October 28, 2015 12:20 PM
> *To: *Law & Religion issues for Law Academics 
> *Subject: *Re: Muslim-focused "reflection room" in airport
>
>
>
> Is this any different than creating chapels or worship/reflection spaces
> on a state university campus, in a county hospital, or on a military base?
> What holds these examples (including the airport) together is the desire to
> accommodate the worship needs of patrons/participants who have no ready
> alternative available (they are far from home, perhaps trapped physically
> for a long time, and perhaps under unusual stress).  So government may make
> these spaces available, but may not encourage or promote t

Re: Bishop John Hughes, Protestant Public Schools in New York, and Political Activity by Clergy

[Steven Green]

I also refer briefly to Hughes' political activity in my The Bible, the
School and the Constitution (OUP, 2012).

-- 
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732

On Thu, Dec 25, 2014 at 5:23 AM, Marc Stern  wrote:

> The story is well told in Diane ravitch's The Great School Wars
>
> Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
> network.
>   Original Message
> From: Graber, Mark
> Sent: Thursday, December 25, 2014 7:51 AM
> To: Law & Religion issues for Law Academics
> Reply To: Law & Religion issues for Law Academics
> Subject: RE: Bishop John Hughes, Protestant Public Schools in New York,
> and Political Activity by Clergy
>
>
> For those interested in the actual debates, the sacred Gillman, Graber,
> Whittington, Volume II has excerpts from John Hughes call for public
> support for Catholic Schools and the Episcopal response.  Pages 230-34.  I
> probably can send people a word version if interested.
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Saperstein, David [
> dsaperst...@rac.org]
> Sent: Thursday, December 25, 2014 7:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Bishop John Hughes, Protestant Public Schools in New York,
> and Political Activity by Clergy
>
> Paul and Mark's posts raise fascinating historical insights. As some of
> you know, I have been working on a book for a while on the use of religion
> in American elections, so any interesting historical examples you come
> across like this, I would greatly appreciate being sent .
>
> But as to the debate over clergy involvement on "political" issues , the
> posts appear to conflate religious institutional involvement in partisan
> electoral "political activity" (which according to the IRS/FEC rules cannot
> be done at all --except in a purely personal capacity by clergy--and no tax
> exempt money could be used for) and Paul's reference to "speak out on
> public issues" type "political activity," which, as Paul and everyone on
> the list knows, can be done with tax exempt money, with the obvious
> substantiality or 501h limitations as to lobbying.
>
> Since these rules did not exist in Archbishop Hughes' day, I would think ,
> Mark , that his model, or that of the political practices of other
> religious groups at that time, is of great historical public policy
> interest but (with few or any on point court decisions from that era), not
> really relevant to the debates we face today on e.g. candidate endorsements
> from the pulpit with no IRS/FEC restrictions.
>
> As to Marty Lederman's query to Mark ("who opposes clergy political
> activity?"), that this latter example is the kind of "political activity"
> some (many?) on this list "oppose" to which Mark's challenge is addressed.
> But Mark can certainly clarify for himself.
>
> Best wishes for a joyful and meaningful Christmas to all who celebrate it.
>
> David
>
> Sent from my iPhone
>
> Sent from my iPhone
>
> > On Dec 24, 2014, at 7:19 PM, "Finkelman, Paul" <
> paul.finkel...@albanylaw.edu> wrote:
> >
> > I have written a bit about this in my biography of Millard Fillmore
> --who was totally insensitive to issues involving Catholics, Jews, and
> blacks -- a sort of equal opportunity bigot.
> >
> > If was state wide, not just NYC.   Fillmore lost the NY Gov. race in
> 1844 in part over this issue -- to the extent that he alienated almost all
> Catholic voters in the state.  The issue may have affected the presidential
> race as well, since Clay lots NY State to Polk by about 5,000 votes.
> >
> > The issue is in part that the school day began with a prayer and a Bible
> reading, and the prayer was Protestant (usually the Protestant Lord's
> Prayer, not to be confused with the Catholic Lord's Prayer), followed by
> Bible reading from the King James Bible -- which was also both Protestant
> and in places translated to be anti-Catholic.
> >
> > Almost all of the teachers were Protestant in a pre-Civil Service world.
> >
> > I am not sure what the curriculum was, but there was certainly a sense
> among Catholics that the schools were hostile to their faith.  It was
> doubtless tied up up in British vs. Irish ethnic hostility as well
> (although were there a minority of German Catholics as well, but most of
> the political conflict was over the Irish).  It helped set the stage for
> various anti-Catholic and anti-Immigrant parties, most famously the Know
> Nothings, but there were others before that one.  (For what it is worth,
> Millard Fillmore ran for president in 1856 on the Know Nothing ticket, with
> a party platform provision against Catholics ever holding office in the US).
> >
> > While the Irish generally voted for Democrats, some Whigs -- like
> William Henry Seward -- supported their position,, n

Re: Supreme Court sides with church on decision to fire employee on religious grounds

[Steven Green]

The most interesting part of the decision is of course what the Court did
not decide: who decides who is a minister in less obvious situations.  I
don't take Thomas' solo concurrence advocating near complete deference to
church officials as indicating he is the only justice who may vote that
way; rather, simply that reaching that issue was unnecessary to get a
unanimous opinion.  In that Alito and Kagan are in "opposite camps" and
they jointly offer a functional approach may say something about those in
the middle, but I find their criteria too narrow to be a comprehensive
statement.  I think others may lean toward Thomas.

Steve

-- 
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732


On Wed, Jan 11, 2012 at 11:33 AM, Rick Garnett  wrote:

> Dear Marci,
>
> ** **
>
> I guess not, but I think people usually think of “clergy” as ordained, or
> as otherwise officially designated.  I think the opinion constitutionalizes
> an exception that covers a broader category of “ministers” (including, of
> course, many lay teachers at parochial schools, who are not usually
> referred to as “clergy.”).
>
> ** **
>
> Best wishes,
>
> ** **
>
> Rick
>
> ** **
>
> Richard W. Garnett
>
> Professor of Law and Associate Dean
>
> Notre Dame Law School
>
> P.O. Box 780
>
> Notre Dame, Indiana 46556-0780
>
> ** **
>
> 574-631-6981 (w)
>
> 574-276-2252 (cell)
>
> ** **
>
> SSRN page 
> 
>
> ** **
>
> Blogs:
>
> ** **
>
> Prawfsblawg 
>
> Mirror of Justice 
>
> Law, Religion, and Ethics 
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton
> *Sent:* Wednesday, January 11, 2012 2:26 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Supreme Court sides with church on decision to fire
> employee on religious grounds
>
> ** **
>
> Rick--I meant by clergy whatever the Court is saying is a "minister"
>   I did not intend "ordained" clergy.
>
> Do we still disagree?
>
> ** **
>
> Marci
>
> ** **
>
> ** **
>
> On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote:
>
>
>
> 
>
> Dear Marci,
>
>  
>
> I think you are right about the second sentence, but I disagree with your
> second.  The opinion seems clearly to reach beyond “clergy.” 
>
>  
>
> Best wishes,
>
>  
>
> Rick
>
>  
>
> Richard W. Garnett
>
> Professor of Law and Associate Dean
>
> Notre Dame Law School
>
> P.O. Box 780
>
> Notre Dame, Indiana 46556-0780
>
>  
>
> 574-631-6981 (w)
>
> 574-276-2252 (cell)
>
>  
>
> SSRN page 
> 
>
>  
>
> Blogs:
>
>  
>
> Prawfsblawg 
>
> Mirror of Justice 
>
> Law, Religion, and Ethics 
>
>  
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton
> *Sent:* Wednesday, January 11, 2012 12:34 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Supreme Court sides with church on decision to fire
> employee on religious grounds
>
>  
>
> The decision is much narrower than Joel's description.  It does not cover
> all employees of religious organizations--only clergy.  And it only
> involves claims involving discrimination against the religious organization,
> 
>
> leaving open litigation from even clergy on contract and tort theories.  *
> ***
>
>  
>
> Marci
>
>  
>
>  
>
>  
>
> On Jan 11, 2012, at 12:26 PM, Joel wrote:
>
>
>
>
> 
>
>  
>
> The Supreme Court has sided unanimously with a church sued for firing an
> employee on religious grounds, issuing an opinion on Wednesday that
> religious employers can keep the government out of hiring and firing
> decisions.
>
>  
>
> In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a "called" teacher,
> argued that the Hosanna-Tabor Evangelical Lutheran Church and School of
> Redford, Mich., had discriminated against her under the Americans With
> Disabilities Act by refusing to reinstate her to her job after she took
> leave for narcolepsy.
>
>  
>
>  
>
>
> http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/
> 
>
>  
>
>  
>
> Joel L. Sogol
>
> Attorney at Law
>
> 811 21st Ave.
>
> Tuscaloosa, Alabama  35401
>
> ph (205) 345-0966
>
> fx (205) 345-0971
>
> email:  jlsa...@wwisp.com
>
> website: www.joelsogol.com

Re: UNC student government setting aside "meditation room" (plus foot-washing bains aimed at accommodating Muslim students)

[Steven Green]

One would need to see the criteria for general access to the room.  I would
assume UNC would seek to limit it to "meditative" activities, which may
exclude other meetings (which, no doubt, can take place in other rooms in
the Union).  Provided meditative is defined broadly and inclusively, and
UNC has a permissive policy for other uses in other rooms, then it seems
like a neutral policy (using the Court's rationale in Zelman by comparing
the vouchers to other choice programs).

I would also argue that Muslim students have a stronger argument for a
religious accommodation based on their specific religious obligation, which
the university can use as part of its rationale for an inclusive
meditative-use room.

-- 
Steven K. Green, J.D., Ph.D.
Fred H. Paulus Professor of Law and Director
Center for Religion, Law and Democracy
Willamette University
900 State St., S.E.
Salem, Oregon 97301
503-370-6732


On Mon, Dec 12, 2011 at 11:23 AM, Volokh, Eugene wrote:

> Any thoughts on the story discussed in this editorial, especially given
> cases such as *Mitchell v. Helms* and earlier cases that limit the use of
> government benefit programs for facilities specifically oriented towards
> religious services or religious instruction, except when done as part of a
> neutrally available open-forum program?  (I realize that similar issues
> come up with chapels in government-owned airports, hospitals, and the like,
> though the building of the foot-washing basin is a bit different.)
>
> ** **
>
> Eugene
>
> ** **
>
> http://www.dailytarheel.com/index.php/article/2011/11/an_act_of_good_faith
> 
>
> ** **
>
> Between its decision to divide the multipurpose room and its poorly
> executed UCommons renovation campaign, the Student Union has been a magnet
> for criticism within the past year. But its latest move, to create a
> first-floor meditation room next fall, should be met with nothing but
> applause, as it promises to only make UNC more inviting to its diverse
> community of students, faculty and staff.
>
> ** **
>
> With this simple solution, the Student Union has directly addressed some
> basic needs and desires voiced by the campus Muslim community, while also
> remaining open to all others. Muslim students, faculty and staff have had
> to pray in various common areas and other highly public spaces while on
> campus. This new room will not only give them privacy, it will also prevent
> them from getting in the way of other students while praying, which has
> been a headache for Union officials in the past.
>
> ** **
>
> As it stands, Muslims who wish to pray together on campus — the faithful
> must pray five times a day — must rent rooms in the Union on a daily basis.
> 
>
> But rooms have often been hard to come by, especially on weekdays during
> the late afternoon and evening. And since four of the five required daily
> prayers are between noon and nightfall, prayer times often coincide with
> the times hardest to find an empty room.
>
> ** **
>
> The room will also contain a foot-washing basin to facilitate the Islamic
> washing ritual of Wudu that must be undertaken before prayer whenever
> possible. The basin will most likely be significantly more convenient and
> comfortable than whatever methods Muslims have resorted to on campus in the
> past to wash their feet and ankles. That’s a lot of wasted time and effort
> that will be reduced by this room.
>
> ** **
>
> While this room was created mostly with Muslims in mind, it is not only
> for followers of that religion, or any religion for that matter. The room
> will be open to all during the normal operating hours of the Union — which
> could possibly expand to 24 hours next year with the new Wendy’s. It will
> be sparsely decorated, allowing ample space for Muslims to pray and
> everyone else to meditate
>
> ___
> 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.
>
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21st Century Zorach

[Steven Green]

Alan is correct about the need for non-religious alternatives.  Good 
News was premised, in part, on the fact that the immediately 
after-school time was available to a host of groups (though no other 
group had exercised that right).  As Doug recommended, release time 
should occur after the school day so as not to provide an unfair 
advantage to the religious groups of a potential captive audience (not 
to mention potential coercion or endorsement perceptions), and the 
opportunity must be extended to non-religious groups.
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732

___
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Re: charitable choice hypothetical

[Steven Green]

Putting aside any state nondiscrimination statutes or collective 
bargaining issues which would control the situation, the permissive 
accommodation and nonestablishment issues need to be addressed separately.

If one follows Texas Monthly, Thorton and even Amos, it seems that the 
permissive accommodation would fail because: (1) the need to hire 
coreligionist bus drivers does not appear to be based on a free exercise 
 burden or come close to the concern in Amos about a chilling impact on 
the autonomy & decisionmaking of the religious entity; and (2) that such 
preference burdens other persons (non-religious bus drivers in need of a 
job).

However, I would acknowledge that the absence of a ground for 
accommodating does not necessarily equate with an impermissible 
advancement of religion.  But I think Alan's characterization of the 
issue (placing labor under the control of a religious entity) is too 
broad.  While charitable choice does such, it is with the facial 
assertion that those employees are not engaging in religious activity or 
engaged in religious functions but are providing surrogate public 
services.  While the same may be true for the bus driver (is there a 
Christian way to drive?), in both situations the ability to discriminate 
enables the religious organizations' overall mission by ensuring a 
community of like believers at the government's expense.  At least under 
 Title VII the government is not funding the private discrimination.

Steve
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732
A.E. Brownstein wrote:
In reading arguments defending charitable choice provisions that permit 
religious non-governmental providers to discriminate on the basis of 
religion in hiring employees to staff government funded programs serving 
public purposes -- even if the program is entirely supported by 
government funds and is subject to various government regulations and 
conditions, I began to think about the reach of these arguments.

Proponents of discriminatory hiring argue:
1. This is an accommodation of the religious liberty interest of 
religious individuals to work together with co-religionists.

2. The accommodation serves the legitimate secular purpose of permitting 
co-religionists to work together.

3. The accommodation does not impermissibly advance religion. The reason 
religion is not impermissibly advanced is, in part, because

a. The discrimination is not invidious and the persons denied job 
opportunities are not stigmatized by their exclusion from these job 
opportunities.

b. The religious liberty of persons denied employment because of 
their religious beliefs is not burdened by being denied tax payer 
funded, public purpose employment opportunities.

Obviously, I strongly disagree with most of these arguments. But my 
question is this. Suppose a state provides free school bus service to 
students attending both private and public schools. May the state allow 
religious private schools to select the bus driver transporting their 
students to the school and insist that the driver must be of the same 
faith as the school's teachers and administrators -- and may the state 
grant such requests as an accommodation? (Or alternatively, when public 
school teachers are assigned to provide remedial services to students at 
a religious school, may religious schools be granted the accommodation 
of choosing teachers of a particular faith to be assigned to those duties.)

Wouldn't all of the above arguments apply to these situation? The 
religious discrimination would be an accommodation of religious 
individuals desire to work with co-religionists. (And., of course, the 
state can take religion into account in accommodating religion.) The 
accommodation would serve a secular purpose and not impermissibly 
advance religion for all of the reasons argued above.

If there is an Establishment Clause problem with these hypothetical 
accommodations, what is it? It can't be that public resources (here 
labor instead of capital) are placed under the control of religious 
institutions which practice religious discrimination in using those 
resources -- because that is what charitable choice does.

Alan Brownstein
UC Davis
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To subscribe, unsubscribe, change options, or get password, see 
http

Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?

[Steven Green]

For those who are interested in this issue, I have written an amicus 
brief for the McCreary case (with the valuable assistance of Paul 
Finkelman) that argues against a close connection between American law 
and the 10 Commandments.  If you would seriously consider signing on to 
such a brief (on behalf of historians and law scholars) and would like 
to see a draft, please let me know:  [EMAIL PROTECTED]

By the way, my article in the JLR is based on research from my 
dissertation which pre-dated my association with Americans United.

--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732
[EMAIL PROTECTED] wrote:
Divine source, perhaps, but certainly not the God of the Bible, but rather a diestic "creator" or "nature's God."  

Paul FInkelman
Quoting Francis Beckwith <[EMAIL PROTECTED]>:

Very good questions. I think one could teach the logic of the
Declaration
without saying that it is true.  For example, I frequently
lecture on
thinkers and arguments that I don't think are correct, but I
do so because I
would not be a virtuous teacher.  On the other hand, it may be
that some
religious beliefs are more consistent with a just regime than
others. For
example, from your perspective a religion that taught its
adherents that the
state should teach in its schools the true religion would be a
religion that
is mistaken about the nature of the state.
Frank
On 12/18/04 3:23 PM, "Ed Brayton" <[EMAIL PROTECTED]>
wrote:

Francis Beckwith wrote:

The declaration says three things about rights:
1. That they are self-evident
2. That they are inalienable
3. That they have divine source
So, Ed seems to be suggesting that we jettison teaching the
third because
there is no principled way to teach it with out implying
the falsity of
other takes on God and rights.  But, as you know, there are
many who
challenge the inalienability and self-evidence of rights
precisely on the
grounds that if rights have these non-material properties,
it seems that
some form of non-naturalism must be the case and theism is
a form of
non-naturalism.  So, there's good reason to ignore 1 and 2
as well since it
may lead one to think that theism has a lot more going for
it in grounding
rights than let's say materialism.
I'm not suggesting that we not teach that this is the
philosophy behind
the Declaration, I'm just saying that if we allow teachers
to advocate
that the theological position is true, how do we prevent
them from
advocating any other theological position? If we cannot do
so, then
we'll have quite a mess on our hands as Muslim teachers
teach their
students that the Quran is true, for instance, or atheist
teachers teach
that the bible is false. From a practical standpoint, this
clearly isn't
workable, but at the same time you cannot constitutionally
say that we
will allow teachers to teach some theological positions but
not others.
How would you address that question, which was at the core
of what I said?
Ed Brayton
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Paul Finkelman
Chapman Distinguished Professor of Law
Univ. of Tulsa College of Law
2120 East 4th Place
Tulsa OK  74104-3189
Phone: 918-631-3706
Fax:918-631-2194
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Re: Student reprimanded for religious absences

[Steven Green]

Eugene has a point.  The tailoring requirement suggests considering 
alternatives short of expulsion, even aside from the accommodation 
issue.  Also, within the educational context, the school's decision 
should (in a perfect world) be remedial, not punitive.

 --
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732
Volokh, Eugene wrote:
I'm puzzled by how this argument would be reconciled with 
traditional strict scrutiny analysis, which is what the Indiana 
Constitution seems to call for.  Is it really the case that expelling 
students for missing 8 days of school is *necessary* to accomplish the 
compelling state interest in providing an adequate education to 
students?  The case for accommodation here seems much stronger than, 
say, in Wisconsin v. Yoder (though I realize that there are distinctions 
between the two cases).
 
Or is the argument that strict scrutiny should not apply in K-12 
education?
 
Eugene

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Tuesday, November 23, 2004 3:53 PM
To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics
Subject: Re: Student reprimanded for religious absences
Surely education is a compelling state interest and requiring
attendance as a part of that and setting an attendance policy is
within the discretion of the school board. This is a decision not
for the courts.
At some point there needs to be some accommodation. But it cannot be
an accommodation that requires missing a full week of school each year.
Should the school district amend its rules and provide greater
accommodation for students of various religious backgrounds? Surely.
Should courts step in and make it a matter of constitutional right?
I would tread that ground very, very cautiously.
 


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State RFRA's

[Steven Green]

Oregon's proposed RFRA did not make it out of committee last session. 
It may be reintroduced, but there is not a groundswell of support for 
the measure.
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732

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(no subject)

[Steven Green]

If possible, Eugene, Alan, and Chip are all correct.  The school need 
not allow such activity in the classroom (distributions generally) and 
should be concerned about intimidating material (in the classroom or 
outside).  Conversely, students have the "right" to target follow 
students of differing faiths in the hallways and lunchrooms, short of 
being intimidating.  There may be a fine line, but schools are not 
required to protect students from private speech they may find annoying 
or offensive.
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732

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