Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

[hamilton02]

I'm stumped by Mark's response.  The courts have held that RFRA and RLUIPA are 
only good against the government.  Due to its language and the state action 
doctrine generally.
Are you saying that those cases don't exist, or are all uniformly wrongly 
decided?  The state language indicates acknowledgement of those cases, no?


 I'm not trying to be provocative here.  I'm sincerely asking.


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 
http://sol-reform.com





-Original Message-
From: Steven Jamar 
To: Law Religion & Law List 
Sent: Thu, Feb 27, 2014 12:21 pm
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do 
we go under the Const and under RFRAs?


Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the 
Commerce Clause powers of Congress.  I had understood them to be under the 14th 
Amendment, in which case Congress can ONLY reach states and they cannot apply 
to private conduct.  And, as we know, RFRA (federal), cannot apply to states 
either because of the narrowing of the grant of power to Congress adopted by 
the Court in Boerne.


As to state RFRA, it would seem that a strong case can be made that they, being 
modeled after and inspired by the federal law, were intended to have 
essentially the same reach — prohibit states from intruding too far into 
religious exercise, not to prohibit private individuals from intruding on free 
exercise of another private person.


Pardon my Fox News inspired hyperbole here, but all of this strikes me as a 
version of the shibboleth of the war on Christmas.  Are laws are rife with 
exceptions and other accommodations for religious groups and individuals.  Just 
take a look at the Civil Rights Act of 1964 prohibiting discrimination by 
private parties on the basis of religion and allowing various exceptions that 
in fact allow exactly that sort of discrimination on the basis of religion to 
take place for certain religious organizations.


But now, the claim is being pushed that those willingly engaging in commerce as 
regular business are to be exempt from laws entirely based on a claim of 
burdening not exercise, but belief; on a claim not of a substantial burden on 
exercise, but solely on a questionable legal theory of “complicity”; and not on 
the basis of actual exclusion or persecution or discrimination against the 
religious adherent, but rather on the basis of excluding others based purely on 
a  basis that is irrelevant to the business (photography, cake baking, lunch 
counter service, taxi riders, renting a hotel room, etc.).


Some Arizona legislators are expressing “buyer’s remorse” because once they 
realized what they had done, they wished they hadn’t.  I don’t expect any 
negative fallout for the governor on this. 


These sorts of laws are like the issue in Romer — just beyond the pail of 
normal legislation and actions by the government - by a lot.


Steve





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




"The only things truly worth doing cannot be accomplished in a single lifetime."


Prof. Goler Teal Butcher, after Reinhold Neibuhr







On Feb 27, 2014, at 11:57 AM, Scarberry, Mark  
wrote:



Of course not, Marci. New language can be used to clear up ambiguities or to 
make sure that hostile or indifferent bureaucrats or courts actually apply the 
statute as originally intended (and as it would be interpreted but for 
hostility or indifference to legislative purpose).


That's not to say that every dispute is covered by the previously standard RFRA 
language, as I've tried to suggest with the trespass hypothetical.


Mark


Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Feb 27, 2014, at 8:48 AM, "hamilto...@aol.com"  wrote:


The new RFRAs, like the one in Missouri, includes a line that states that it 
applies even if the government is not a party.  So I guess, at the least, we 
have 
an admission that the previous language of the RFRAs did not include every 
dispute?


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 
http://sol-reform.com





-Original Message-
From: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Sent: Thu, Feb 27, 2014 11:42 am
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do   
we go under the Const and under RFRAs?



Doug's "common law rule" point is one reason I raised the trespass issue and 
suggested a background law distinction. 


If the state creates private property rights, even by w

Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

[hamilton02]

The new RFRAs, like the one in Missouri, includes a line that states that it 
applies even if the government is not a party.  So I guess, at the least, we 
have 
an admission that the previous language of the RFRAs did not include every 
dispute?


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 
http://sol-reform.com





-Original Message-
From: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Sent: Thu, Feb 27, 2014 11:42 am
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do   
we go under the Const and under RFRAs?



Doug's "common law rule" point is one reason I raised the trespass issue and 
suggested a background law distinction. 


If the state creates private property rights, even by way of ancient common law 
or customary law, then a judicial action for an injunction or damages for 
trespass could be subject to a state RFRA, under some of the approaches that 
have been suggested here. Of course a suit is state action for constitutional 
due process purposes, and for some other purposes as in Kreshik and Perich. But 
no one thinks a property owner's right to exclude is directly subject to 
constitutional equal protection analysis (again, as Doug notes, setting Shelley 
v. Kramer aside, and setting aside symbiotic relationship, public function, and 
other state action analyses)n. Statutory anti-discrimination or religious 
liberty protections are another matter, with their scope mostly determined by 
textual analysis, determination of legislative intent, etc. 


We need to find a principled approach to interpretation of RFRAs that makes 
them inapplicable to trespass suits but applicable some other kinds of suits. 
It's possible to take situations case-by-case and ask whether legislators would 
have thought a RFRA would apply, but it would be better to have a guiding 
principle, right?


Mark


Mark S. Scarberry
Pepperdine University School of Law






Sent from my iPad

On Feb 27, 2014, at 7:57 AM, "Douglas Laycock"  wrote:



It is not judicial enforcement as such. In contract cases, the challenged rule 
comes from the contract. Shelley v. Kramer aside, enforcing the contract does 
not make the provisions of the contract state action.
 
But when the challenged rule is written by the state, whether in a statute or a 
common law rule, the burden is imposed by the rule of law. That rule of law is 
the relevant state action. 
 

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 Steven Jamar
Sent: Thursday, February 27, 2014 10:49 AM
To: Law Religion & Law List
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do 
we go under the Const and under RFRAs?

 
I don’t think state action is as settled as Chris’s post implies.  States 
enforce contracts, for example, and other private rights without the court 
action becoming state action limited by the 14th Amendment.  Surely many court 
actions are state action for constitutional rights purposes, but perhaps not 
quite as categorically or broadly as Chris’s post states.

 

Steve

 




-- 

Prof. Steven D. Jamar vox:  202-806-8017

Director of International Programs, 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 a cult of ignorance in the United States, and there always has been. 
The strain of anti-intellectualism has been a constant thread winding its way 
through our political and cultural life, nurtured by the false notion that 
democracy means that "my ignorance is just as good as your knowledge."

 

Isaac Asimov  in  a column in Newsweek  (21 January 1980)

 

 

 

 

 

On Feb 27, 2014, at 10:28 AM, Christopher Lund  wrote:





“Can you point to specific free exercise cases where the First Amendment's free 
exercise clause was applied by the Supreme Court to a dispute between private 
parties?  There must be state action.  Note Hosanna-Tabor was against the EEOC.”

 

Marci’s contention is an interesting one.  The strength of it can be tested 
pretty easily.  How many people think that Hosanna-Tabor would have been 
decided differently if the EEOC had not intervened and the case was captioned 
Hosanna-Tabor v. Perich?

 

But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 
(1960).  Four years before NYT v. Sullivan (!), the Court says that the 
Religion Clauses of the First Amendment apply to disputes between private 
parties.  See id. (“It is established doctrine that ‘[i]t is not of moment that 
the State has here acted solely throu

Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

[hamilton02]

Chip--   Actually, the courts have gone the other way, and routinely hold that 
RFRA and RLUPA are only good against the government, and I think they
have gotten it right under the statute's intent and language.


Can you point to specific free exercise cases where the First Amendment's free 
exercise clause was applied by the Supreme Court to a dispute between private 
parties?
There must be state action.  Note Hosanna-Tabor was against the EEOC.


I think it is easy to extrapolate from the speech cases to the conduct cases, 
but it is a mistake.


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 
http://sol-reform.com





-Original Message-
From: Ira Lupu 
To: Law & Religion issues for Law Academics 
Sent: Thu, Feb 27, 2014 9:59 am
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do 
we go under the Const and under RFRAs?


Marci, is this the language of federal RFRA on which you rely?
"A person whose religious exercise has been burdened in violation of this 
section may assert that violation as a claim or defense in a judicial 
proceeding and obtain appropriate relief against a government."



First of all, a dismissal of a private lawsuit can be seen as relief against 
the government, which has coerced the private defendant into court, with her 
property at risk. Second, a private suit is a judicial proceeding, in which 
RFRA might be a defense.
Third (and maybe this should be first), federal RFRA's primary provision is 
this: "Government shall not substantially burden a person’s exercise of 
religion even if the burden results from a rule of general applicability, 
except as provided in subsection (b) of this section."  If a private cause of 
action produces such a burden, then I think RFRA is triggered.


Marci, you know I am no fan of RFRA.  I testified against it as a matter of 
constitutional law and policy back in 1992.  But I can separate my judgment 
about the unwisdom and constitutional problems of RFRA (inviting judges to 
decide religious questions) from the interpretive question you raise.  I do 
think the better reading is that RFRA applies to private causes of action.  So 
would the free exercise clause, if a private cause of action led to a state 
imposed remedy that unconstitutionally burdened religion -- e.g., a nuisance 
suit by a neighbor, complaining that a certain form of worship in her 
neighborhood was a nuisance that should be permanently enjoined. If that is 
right, and RFRA was (supposedly) designed to restore free exercise norms, then 
RFRA should operate in the same way as the free exercise clause in such a suit.




On Thu, Feb 27, 2014 at 9:29 AM,   wrote:


Chip-- do you think a RFRA applies when the defendant is not the government?  
RFRA's language is explicit that cases are "against the government"   Not 
between private parties.
Language controls, and one of the reasons that the AZ variety amendments are 
appearing now is to "fix" this aspect of the state RFRAs.


There are free speech cases where state action is found between private 
parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they 
are few and far between.
What First Amendment free exercise case (they involve conduct, not speech)  
involves a dispute between private parties?


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 
http://sol-reform.com






-Original Message-
From: Ira Lupu 
To: Law & Religion issues for Law Academics 
Sent: Thu, Feb 27, 2014 9:20 am
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do 
we go under the Const and under RFRAs?


For purposes of a state RFRA or a state constitution, I do not understand why 
defenses to a private right of action for discrimination (e.g., a merchant 
refused to serve me because of my race, religion, etc.; merchant defends on 
religious freedom grounds) are any different from defenses to a private right 
of action for trespass (my neighbor entered my yard to pray under a tree on my 
property, and refused to leave; neighbor defends on religious freedom grounds). 
 I have never seen a constitutional provision of RFRA that even hints at any 
such distinction.  In both cases, the religious person/defendant asserts that 
the cause of action substantially burdens her religious freedom, and the 
plaintiff must argue that application of the state law to this defendant is the 
least restrictive means to a compelling interest.


Why would you make this distinction, Mark?  Smuggling in some libertarian 
assumptions about where rights come from (property rights are natural, and 
non-discrimination rights are something different)?  RFRA's never say any such 
thing; they apply across the board to all law in the jurisdiction,

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability.
Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy) even when their faith does no require the discrimination.

That decision went too far in my view, but we have it.   Enough.




As I have said before, the ship has sailed on trying to manufacture discrimination against homosexuals and same-sex couples as distinct from discrimination based on race.

I will never forget a national leader of the anti-gay marriage platform telling a large group of like-minded folks that the best way to sell their agenda was to rely heavliy on the "ick factor."

Why?  Because they had nothing else to sell their public policy preferences to the people.   They have failed in the public policy arena, and the animus has shown itself for what it is.  




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 
http://sol-reform.com





    




-Original Message-
From: Sisk, Gregory C. 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 4:16 pm
Subject: RE: Subject: Re: Kansas/Arizona	statutes	protecting	for-profit businesses

















Every sorry episode in the long American history of suppression of religious minorities has been justified by the undoubtedly sincere beliefs of the majority
 at the time that they are on the right side of history and that taking additional steps to force the minority to fall into line is merely to advance progress. 
More than a half century ago, the public demand for fealty to America in the face of external and internal threats of totalitarian ideologies imposed itself on religious
 communities who refused to engage in certain public displays of loyalty. 
 Not too long ago, the War on Drugs was extended to prohibit ceremonial use of sacred substances.  Quite recently, fears about terrorism have been used to adopt measures that target, profile, and denigrate persons of Muslim faith.  And
 now an expansion of anti-discrimination laws to cover new categories of protected persons, to include new sectors of society, and to apply to new entities, has imposed itself with a heavy hand on certain traditionalist religious groups.  In the past, we
 learned from mistakes in overreaching through policy and accepted accommodations to religious minorities that expanded freedom without substantially undermining key public policies.  We need to search for that balance again.  Vigilance in defense of religious
 liberty, especially when the majority is convinced of its righteousness (which is almost always), must be renewed in every generation.


 


In sum, it is dangerous for anyone exercising political power to come too readily to the certain conclusion that they are not only absolutely correct about
 the right answer to every issue but absolutely entitled to use whatever means are possible to advance that right answer without any concern for the impact on those who sincerely disagree, with the presumption of every powerful elite that those who think otherwise
 should learn “to adjust.”  To quote Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit that is not too sure that it is right.”


 


 


Gregory Sisk


Laghi Distinguished Chair in Law


University of St. Thomas School of Law (Minnesota)


MSL 400, 1000 LaSalle Avenue


Minneapolis, MN  55403-2005


651-962-4923


gcs...@stthomas.edu


http://personal.stthomas.edu/GCSISK/sisk.html


Publications: 
http://ssrn.com/author=44545


 


From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]
On Behalf Of hamilto...@aol.com

Sent: Wednesday, February 26, 2014 2:43 PM

To: religionlaw@lists.ucla.edu

Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


 




I don't have any desire for them to go out of "business," but if they are going to be in "business," they need to operate in the marketplace without






discrimination.   If the business they have chosen does not fit their belief, they need to adjust, or move on.   No one is barring religious minorities from professions.






What is being suggested is that believers cannot shape the business world and customers to fit their prejudices.  The insidious notion that believers have a right






not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing






with the changes that increase human rights, and demand their consideration and accommodation.   Believers have enthusiastically supported the subjugation of blacks,
 women, children,






and homosexuals.    Not requiring them to adjust when what they are doing is a violation of

Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

[hamilton02]

Chip-- do you think a RFRA applies when the defendant is not the government?  
RFRA's language is explicit that cases are "against the government"   Not 
between private parties.
Language controls, and one of the reasons that the AZ variety amendments are 
appearing now is to "fix" this aspect of the state RFRAs.


There are free speech cases where state action is found between private 
parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they 
are few and far between.
What First Amendment free exercise case (they involve conduct, not speech)  
involves a dispute between private parties?


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 
http://sol-reform.com





-Original Message-
From: Ira Lupu 
To: Law & Religion issues for Law Academics 
Sent: Thu, Feb 27, 2014 9:20 am
Subject: Re: Protecting Religious Conscience from Private Suits -- How far do 
we go under the Const and under RFRAs?


For purposes of a state RFRA or a state constitution, I do not understand why 
defenses to a private right of action for discrimination (e.g., a merchant 
refused to serve me because of my race, religion, etc.; merchant defends on 
religious freedom grounds) are any different from defenses to a private right 
of action for trespass (my neighbor entered my yard to pray under a tree on my 
property, and refused to leave; neighbor defends on religious freedom grounds). 
 I have never seen a constitutional provision of RFRA that even hints at any 
such distinction.  In both cases, the religious person/defendant asserts that 
the cause of action substantially burdens her religious freedom, and the 
plaintiff must argue that application of the state law to this defendant is the 
least restrictive means to a compelling interest.


Why would you make this distinction, Mark?  Smuggling in some libertarian 
assumptions about where rights come from (property rights are natural, and 
non-discrimination rights are something different)?  RFRA's never say any such 
thing; they apply across the board to all law in the jurisdiction, unless they 
say otherwise.  When you start smuggling in these kinds of moves, you taint the 
entire RFRA enterprise, don't you?  (I.e., RFRA does not apply to the rights 
and laws that I value more).




On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark 
 wrote:

Some of you on the list have made me think a bit more about application of 
religious freedom provisions (federal or state RFRAs, for our purposes) as 
defenses to suits brought by private parties. This is a key question raised by 
the Arizona bill that Gov. Brewer vetoed.

At the risk of reinventing the wheel, and of missing lots of obvious points:

We know that government-created private rights of action sometimes are limited 
for the same reasons we limit direct government action. The government can't 
fine me for criticizing a govt official or other public figure, nor 
(analogously) may such a person maintain a private suit against me for 
defamation or for causing emotional distress unless a high bar is met, such as 
proof of NY Times malice.

The govt can't require me to fly a US flag or (assuming it allows any flags to 
be flown) prohibit me from flying another nation's flag on my own property. 
Similarly, the law can't provide my neighbor a private right of action that 
would allow the neighbor to get an injunction requiring me to fly a US flag or 
(if the law allows any flags to be flown) not to fly another nation's flag; a 
damage award would similarly be off the table.

A land use regulation that would prohibit religious use of a home (e.g., for a 
weekly bible study) but permit similar nonreligious uses (a weekly bridge club 
meeting) with a similar number of people and similar noise level would violate 
the Constitution. The state can't get around that result by creating a private 
right of action under which a neighbor can sue me for holding the bible study 
but not for holding a bridge club meeting.

A state statute that would allow a fair employment commission to fine a church 
for hiring only men as ministers would violate the Constitution. The state 
obviously can't create a private right of action under which a woman could sue 
the church for sex discrimination for refusing to hire her as a minister.

The state can't do indirectly, by way of creating a private right of action, 
something the Constitution prohibits it from doing directly.

That would also seem to be the case to some degree with statutory protection of 
rights, such as those provided by a state RFRA that is designed to modify all 
other state law (and thus is a bit like a constitution). Suppose that, under a 
state RFRA, a religious group cannot be denied the necessary licenses for 
running an adoption agency simply because the religious group might, for 
sincere religious reasons, refuse to place children with 

Re: Statistics on believers and same-sex marriage

[hamilton02]

Racism was supported and encouraged by believers.  Religion and clergy played a 
critical role in making the Jim Crow south what it was.  It wasn't just the 
state.
It was the cooperation of racist believers and the government.  



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 
http://sol-reform.com





-Original Message-
From: tznkai 
To: Law & Religion issues for Law Academics 
Sent: Wed, Feb 26, 2014 6:37 pm
Subject: Re: Statistics on believers and same-sex marriage


Racial segregation in America wasn't a simple matter of state governments 
enabling racists through carve outs or even a broad grant of rights. Racial 
segregation under Jim Crow involved the state forcing racist ideology. There is 
a colorable difference between allowing a minister or justice of the peace to 
opt out of marrying a couple and making it illegal to do so.


If there is any danger (and I'm not convinced) in returning to segregation, it 
does not lie in the religious exemption, but granting that exemption to 
employers, which allows them to enforce that belief onto their employees, who 
will be left with the same out that Prof. Laycock finds so disturbing for small 
business owners: leave and find another.


-Kevin Chen




On Wed, Feb 26, 2014 at 4:17 PM, Sisk, Gregory C.  wrote:


No such logic exists.  Your inference omits my express reference to the 
requirement of a substantial burden and the omission of a compelling public 
interest.  A return to racial segregation and inability to receive services on 
the basis of race would easily qualify as a compelling public interest.  The 
narrow question presented in these cases is whether a religious minority may 
decline to participate in a ceremonial message with which they disagree, 
especially when alternative venues and services are readily available and thus 
no actual burden is imposed on anyone.

 

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications: http://ssrn.com/author=44545

 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:55 PM

To: Law & Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage


 
I appreciate your consistency – and your acknowledgement that the logic 
underlying the Arizona legislation would enable a return to racial 
discrimination and segregation (at least when motivated by religious beliefs). 

 

 

On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C.  wrote:






Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I’ve consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

 


Gregory Sisk

Laghi Distinguished Chair in Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcs...@stthomas.edu

http://personal.stthomas.edu/GCSISK/sisk.html

Publications:  http://ssrn.com/author=44545


 





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Please note that messages sent to this large list cannot be

Re: Statistics on believers and same-sex marriage

[hamilton02]

The argument is the same for race and homosexual persons.  For most of America 
at this point, discrimination based on sexual orientation is as ugly and wrong 
as discrimination
based on race.  Greg is correct-- the reasoning cannot be divorced.  Also--your 
depiction of "alternatives" is in fact the very Balkanization I've been warning 
about.  When the marketplace
becomes segregated by faith, we all lose.The next step is intolerance and 
severe discord.  


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 
http://sol-reform.com





-Original Message-
From: Sisk, Gregory C. 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 4:19 pm
Subject: RE: Statistics on believers and same-sex marriage



No such logic exists.  Your inference omits my express reference to the 
requirement of a substantial burden and the omission of a compelling public 
interest.  A return to racial segregation and inability to receive services on 
the basis of race would easily qualify as a compelling public interest.  The 
narrow question presented in these cases is whether a religious minority may 
decline to participate in a ceremonial message with which they disagree, 
especially when alternative venues and services are readily available and thus 
no actual burden is imposed on anyone.
 

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications: http://ssrn.com/author=44545

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:55 PM
To: Law & Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage

 
I appreciate your consistency – and your acknowledgement that the logic 
underlying the Arizona legislation would enable a return to racial 
discrimination and segregation (at least when motivated by religious beliefs). 

 

 

On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C.  wrote:






Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I’ve consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

 


Gregory Sisk

Laghi Distinguished Chair in Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcs...@stthomas.edu

http://personal.stthomas.edu/GCSISK/sisk.html

Publications:  http://ssrn.com/author=44545


 





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Re: The Arizona bill and Hobby Lobby

[hamilton02]

The difference is that in the Hobby Lobby cases, the Defendant is the 
government.  In the AZ cases, both parties would be private, with the business 
being able to raise RFRA against
the private actor.


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 
http://sol-reform.com





-Original Message-
From: Marty Lederman 
To: Law & Religion issues for Law Academics 
Sent: Wed, Feb 26, 2014 3:35 pm
Subject: The Arizona bill and Hobby Lobby



Apologies in advance if someone has already made this connection:


If I'm understanding it correctly, the effect of the Arizona bill would be to 
establish or confirm that the Arizona RFRA does exactly what Hobby Lobby and 
its amici are arguing the federal RFRA already does -- namely, extend 
protections to for-profit commercial operations.


And the Republican establishment, including not only both Senator Flake and 
Newt Gingrich, but also John McCain, an amicus in Hobby Lobby, are strongly 
lobbying against it.  And they are doing so, presumably, because the Arizona 
bill -- like the plaintiffs' argument in Hobby Lobby -- would pave the way for 
claims of entitlement to religious exemptions from anti-discrimination norms in 
the commercial setting.

I say this not to accuse those Republican officials of hypocrisy -- I'm sure 
they have not made the association -- but merely to point out that if Hobby 
Lobby did not involve the incendiary combination of contraception and Obama, 
it's very unlikely that so many would be arrayed in support of the rule they 
are asking the Court to announce about RFRA.


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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

I don't have any desire for them to go out of "business," but if they are going 
to be in "business," they need to operate in the marketplace without
discrimination.   If the business they have chosen does not fit their belief, 
they need to adjust, or move on.   No one is barring religious minorities from 
professions.
What is being suggested is that believers cannot shape the business world and 
customers to fit their prejudices.  The insidious notion that believers have a 
right
not to adjust to the law is the most damaging element of the RFRA movement, not 
just to those harmed by it, but by the believers who are permitted to avoid 
dealing
with the changes that increase human rights, and demand their consideration and 
accommodation.   Believers have enthusiastically supported the subjugation of 
blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are doing is a 
violation of human rights is a disservice to all.   It is an understanding of 
religion removed from history, which
is false.

The ship has sailed on distinguishing homophobic discrimination and race 
discrimination.

Even if the compelling interest test can be overcome (assuming we are dealing 
with balancing and not an absolute right), the least restrictive means test 
remains, and that
is the element that drives cases in favor of the religious actor and against 
those they burden and harm.




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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 3:31 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes   protecting  
for-profit  businesses



“He needs to change jobs.” As I said, what you really want is for these people 
to go out of business. Barring religious minorities from professions is a very 
traditional form of religious persecution. Reviving it here is not the solution 
to these disagreements over conscience.
 
I think that race is constitutionally unique. And it is clear that in the 
comparable period with race discrimination laws, resistance was so 
geographically concentrated, and so widespread within those locations, that 
exemptions would have defeated the purpose of the law. The government would 
have had a compelling interest in refusing religious exemptions. 
 
I see no reason to think that we are in anything like that situation with 
respect to gay rights today. If it turns out that we are, then there will be a 
compelling interest. And under the legislative proposals we have offered, if 
all the wedding planners in a community refuse to do gay weddings, then all of 
them lose their exemption.
 
 
 
 
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 hamilto...@aol.com
Sent: Wednesday, February 26, 2014 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

Would you suggest this if it were based on race rather than homosexuality?

 

If the wedding photographer thinks what the couple is doing, as in getting 
married under the state's duly enacted laws, is seriously evil, he needs to 
change jobs.

Become a school photographer, though I suppose then he would object to taking 
pictures of children from same-sex

families.  

 

I get the clergy and house of worship exemption.  I don't get the business 
exemption.  As Chip has said, these "compromise" exemptions have gone nowhere,

and in this environment, I would wager that they won't.

 

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 
http://sol-reform.com




-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil. 

 

They don’t want personal services from that guy anyway. They want that guy to 
change hi

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

Would you suggest this if it were based on race rather than homosexuality?

If the wedding photographer thinks what the couple is doing, as in getting 
married under the state's duly enacted laws, is seriously evil, he needs to 
change jobs.
Become a school photographer, though I suppose then he would object to taking 
pictures of children from same-sex
families.  

I get the clergy and house of worship exemption.  I don't get the business 
exemption.  As Chip has said, these "compromise" exemptions have gone nowhere,
and in this environment, I would wager that they won't.

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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protectingfor-profit  
businesses



It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil. 
 
They don’t want personal services from that guy anyway. They want that guy to 
change his religious views or to go out of business.
 
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 hamilto...@aol.com
Sent: Wednesday, February 26, 2014 2:32 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?

I take it that the Arizona law does not fit your "well-drafted" notion?


well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.


 

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 
http://sol-reform.com




-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.

 

Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.

 

Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.

 

I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona 

Statistics on believers and same-sex marriage

[hamilton02]

I thought list participants would find the statistics below interesting.  This 
is what I meant when I said that opposition to same-sex marriage among believers
is declining.  It is even more stark when one asks only the younger generation.





http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?&ncid=tweetlnkushpmg0055


.








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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?
I take it that the Arizona law does not fit your "well-drafted" notion?

well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.


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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses



Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.
 
Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.
 
Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.
 
I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.
 
 
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.

 

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin  wrote:

Chip:

 

Thanks for the cite! I will take a look.

 

And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?



 

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu  wrote:

Hillel:

 

The same sex marriage laws to which you refer do have "exceptions," for clergy, 
houses of worship, and (sometimes) for religious charities and social services. 
 Bob Tuttle and I analyze and collect some of that here: 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp.
  There is plenty of other literature on the subject.

 

What has happened in other states since we wrote that piece is quite consistent 
with the pattern we described.  These laws do NOT contain exceptions for 
wedding vendors (bakers, caterers, etc.) or public employees like marriage 
license clerks.  Those are the efforts that have failed, over and over.

 

Chip (not Ira, please)



 

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin  wrote:

Ira: 

 

You say that these bills have failed over and over again. If I'm not mistaken, 
several states that recognize same-sex marriage and/or have non-discrimination 
laws protecting gays and lesbians do have religious exceptions (as does the 
ENDA that passed the senate not long ago, only to die in the House). Am I 
mistaken? Do you (or anyone else here!) know of any literature that canvasses 
the laws in this context?

 

Many thanks.










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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

I am tracking the state RFRAs and proposals and commentary on my site 
www.RFRAperils.com

I welcome any and all commentary to add to the site.

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 
http://sol-reform.com





-Original Message-
From: Hillel Y. Levin 
To: Law & Religion issues for Law Academics 
Sent: Wed, Feb 26, 2014 11:14 am
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


Ira: 


You say that these bills have failed over and over again. If I'm not mistaken, 
several states that recognize same-sex marriage and/or have non-discrimination 
laws protecting gays and lesbians do have religious exceptions (as does the 
ENDA that passed the senate not long ago, only to die in the House). Am I 
mistaken? Do you (or anyone else here!) know of any literature that canvasses 
the laws in this context?


Many thanks.




On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu  wrote:

The Kansas bill is very sex/gender specific, and it is not limited to weddings 
in any way.  The rights it creates appear absolute -- no interest balancing.  
It would authorize all sincere religious objectors (persons and entities, 
including businesses) to treat same sex marriages/domestic partnerships, etc. 
as invalid, even if the 14th A required states to license and respect such 
weddings.  It would authorize those objectors to refuse to provide goods and 
services to anyone celebrating such a wedding or commitment, and to deny 
employee spousal benefits to same sex spouses.


The Arizona bill protects religious freedom generally, and the amendment 
extends the coverage explicitly to corporations.The same religious 
objections to same sex weddings, marriages, etc. could be made under the 
Arizona bill.  The AZ bill permits a compelling interest defense (therefore 
more "moderate"?), but it also is far more sweeping because it might be invoked 
to justify religious discrimination against customers for all sorts of reasons 
of status and identity, not limited to sexual orientation.


Unlike federal RFRA, which was a generic response to Smith and brought together 
a coalition of many faith groups and civil liberties groups, the amendments to 
Arizona RFRA are driven by exactly the same political forces as are driving the 
Kansas bill and others -- opposition to same sex marriage and same sex 
intimacy, and an assertion of rights of some business people to refuse to serve 
that population.  So the good lawyers on this list can parse the differences in 
the bills, and we can debate which bill would do more harm or more good, if you 
think there is any good here to be done.  But no one can credibly deny that all 
of these current legislative efforts are driven by the same political forces.  


Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 
5 years been pushing narrower versions of these bills in states that have 
legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)  Those efforts 
have failed over and over again.  Now that same sex marriage seems headed for 
the red states, we are just seeing broader, uglier, less nuanced versions of 
the same agenda.  I hope and expect that Gov. Brewer will veto the AZ bill, and 
it's nice to see the fierce national pushback against these attempts to 
legitimate anti-gay bigotry, whatever its religious underpinnings in some cases.





On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark 
 wrote:


That should have been "much more moderate/less sweeping."


Mark


Mark S. Scarberry
Pepperdine University School of y






Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 

From: "Scarberry, Mark"  
Date:02/26/2014  6:47 AM  (GMT-08:00) 
To: Law & Religion issues for Law Academics  


Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses 


Marci's view of the rights of a Walmart under tha AZ bill, and likely even the 
Kansas bill, is simply wrong.


The application in the AZ bill to private enforcement by way of lawsuit simply 
prevents the state from doing indirectly what it can't do directly, cf. NY 
Times v. Sullivan, and makes clear something that already should be the case 
under RFRAs, properly interpreted. 


It also is the case that the AZ bill is much more moderate/sweeping than the 
Kansas bill.


Mark S. Scarberry
Pepperdine University School of Law



Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Marci Hamilton 
Date:02/26/2014 5:09 AM (GMT-08:00) 
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


They are similar in that both involve believers demanding a right to 
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
argume

Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses

[hamilton02]

The either/or posited between secularism and faith is actually false as a 
sociological matter in the United States. What is happening is that 
conservative Christians and Jews who oppose gay marriage
are now facing opposition from religious believers.  Secularism is a small 
portion of the population.  This is a fight between believers who are now 
lining up on both sides of the issue.  Those opposed to gay marriage are losing 
ground and allies, and know statistically that the younger generation across 
all faiths do not agree with them.  They are trying to co-opt the government to 
preserve the world they are losing, and will not
get back.   

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 
http://sol-reform.com





-Original Message-
From: Hillel Y. Levin 
To: Law & Religion issues for Law Academics 
Sent: Wed, Feb 26, 2014 12:05 pm
Subject: Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses


Jim is too humble to say so, but his article is required reading for anyone 
interested in the Hobby Lobby, Notre Dame, and related cases.


Jim, this is necessarily speculative, but I think that some religious 
traditionalists/conservatives view themselves as under attack from secularist 
forces. These forces are at play in the same-sex marriage context, but also 
GLBT non-discrimination laws, the contraception mandate, and others to boot. In 
the face of this (real or perceived) broad-based attack, as well as perhaps the 
sense that public sentiment is moving towards secularism in general (and GLBT 
rights in particular), they may be trying to plant their flag right here in 
places that they still have a majority. 


This could be called cynical, but it could also be called wise. After all, it 
is extremely difficult to repeal a religious accommodation clause once it is 
enacted, even if the majority comes to regret having enacted it.








On Wed, Feb 26, 2014 at 11:46 AM, James Oleske  wrote:


In light of the recent discussions of this issue on the list, and in light the 
various proposals percolating in the states, I've got a question for the group 
and a shameless plug.


First, the shameless plug -- I've just posted a new piece on the issue to SSRN 
(it won't be in print until next year, so comments and suggestions would be 
very welcome):


Interracial and Same-Sex Marriages: Similar ReligiousObjections, Very Different 
Responses
http://ssrn.com/abstract=2400100


The article addresses two major questions that havegone largely unexamined in 
the literature to date: First, why has the legal academy been sosolicitous of 
religious objections to same-sex marriage when it was neverreceptive to similar 
objections to interracial marriage? Second, if a statewere to adopt the leading 
academic proposal for religious exemptions—a proposalthat would allow 
for-profit businesses to discriminate against same-sexcouples—would the 
exemptions be vulnerable to an equal protection challenge?



The "leading academic proposal" I discuss is the Laycock/Berg/Garnett/Wilson 
proposal Chip mentions below, and the principal discussion of that proposal 
begins on page 35 of the draft. A more general discussion of exemptions for 
commercial businesses starts on page 27 of the draft.



Second, the question for the group: What explains the recent pivot from the 
"marriage specific" proposals (e.g., proposed amendment to Minnesota's 2012 
marriage recognition legislation; proposed amendment to Washington's 2012 
marriage recognition legislation; proposed 2014 ballot initiative in Oregon; 
2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to the 
"expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an effort to 
tie into what is expected to be a victory for Hobby Lobby under the federal 
RFRA?


- Jim



P.S. My understanding is the same as Chip's -- no state has yet adopted 
marriage exemptions that extend to commercial vendors. Speaking of Chip, his 
article with Bob on this topic is essential reading 
(http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp).



On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu  wrote:

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.



On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin  wrote:

Chip:


Thanks for the cite! I will take a look.


And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?





On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu  wrote:

Hillel:


The same sex marriage laws to which you refer do have "exceptions," for clergy, 
houses of worship, and (sometimes) for religious charities and social services. 
 Bob Tuttle and I analyze and collect some of that here: 
http://scholarlycommons.law.northwestern.edu/cgi/viewconte

Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses

[hamilton02]

No state has gone that far yet, because the civil rights groups  that were 
initially in favor of RFRA (plus gay rights groups) are now lobbying against 
these new bills.
As are many ministers, pastors, and business people who do not want to see the 
free market Balkanized or compartmentalized according to religion.   


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 
http://sol-reform.com





-Original Message-
From: James Oleske 
To: Law & Religion issues for Law Academics 
Sent: Wed, Feb 26, 2014 11:49 am
Subject: Same-Sex Marriage and Proposed Religious Exemptions for Businesses



In light of the recent discussions of this issue on the list, and in light the 
various proposals percolating in the states, I've got a question for the group 
and a shameless plug.


First, the shameless plug -- I've just posted a new piece on the issue to SSRN 
(it won't be in print until next year, so comments and suggestions would be 
very welcome):


Interracial and Same-Sex Marriages: Similar ReligiousObjections, Very Different 
Responses
http://ssrn.com/abstract=2400100


The article addresses two major questions that havegone largely unexamined in 
the literature to date: First, why has the legal academy been sosolicitous of 
religious objections to same-sex marriage when it was neverreceptive to similar 
objections to interracial marriage? Second, if a statewere to adopt the leading 
academic proposal for religious exemptions—a proposalthat would allow 
for-profit businesses to discriminate against same-sexcouples—would the 
exemptions be vulnerable to an equal protection challenge?



The "leading academic proposal" I discuss is the Laycock/Berg/Garnett/Wilson 
proposal Chip mentions below, and the principal discussion of that proposal 
begins on page 35 of the draft. A more general discussion of exemptions for 
commercial businesses starts on page 27 of the draft.



Second, the question for the group: What explains the recent pivot from the 
"marriage specific" proposals (e.g., proposed amendment to Minnesota's 2012 
marriage recognition legislation; proposed amendment to Washington's 2012 
marriage recognition legislation; proposed 2014 ballot initiative in Oregon; 
2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to the 
"expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an effort to 
tie into what is expected to be a victory for Hobby Lobby under the federal 
RFRA?


- Jim



P.S. My understanding is the same as Chip's -- no state has yet adopted 
marriage exemptions that extend to commercial vendors. Speaking of Chip, his 
article with Bob on this topic is essential reading 
(http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp).



On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu  wrote:

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.



On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin  wrote:

Chip:


Thanks for the cite! I will take a look.


And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?





On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu  wrote:

Hillel:


The same sex marriage laws to which you refer do have "exceptions," for clergy, 
houses of worship, and (sometimes) for religious charities and social services. 
 Bob Tuttle and I analyze and collect some of that here: 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp.
  There is plenty of other literature on the subject.


What has happened in other states since we wrote that piece is quite consistent 
with the pattern we described.  These laws do NOT contain exceptions for 
wedding vendors (bakers, caterers, etc.) or public employees like marriage 
license clerks.  Those are the efforts that have failed, over and over.


Chip (not Ira, please)





On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin  wrote:

Ira: 


You say that these bills have failed over and over again. If I'm not mistaken, 
several states that recognize same-sex marriage and/or have non-discrimination 
laws protecting gays and lesbians do have religious exceptions (as does the 
ENDA that passed the senate not long ago, only to die in the House). Am I 
mistaken? Do you (or anyone else here!) know of any literature that canvasses 
the laws in this context?


Many thanks.





On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu  wrote:

The Kansas bill is very sex/gender specific, and it is not limited to weddings 
in any way.  The rights it creates appear absolute -- no interest balancing.  
It would authorize all sincere religious objectors (persons and entities, 
including businesses) to treat same sex marriages/domestic partnerships, etc. 
as invalid, even if the 14th A required states to license and respect s

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

Have you read anything I've written for the last 20 years?


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 
http://sol-reform.com





-Original Message-
From: Michael Worley 
To: Law & Religion issues for Law Academics 
Sent: Tue, Feb 25, 2014 8:47 pm
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


Would you say the Federal RFRA is  egregious, Marci?



On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton  wrote:


I have read them and both are egregious.

Sent from my iPhone


On Feb 25, 2014, at 6:15 PM, "Scarberry, Mark"  
wrote:





The Arizona bill and the Kansas bill are very different. I don’t have time 
right now to discuss this further, but all you have to do is to read the bills. 
If you do, you will see that the arguments equating the two are simply and 
egregiously wrong. I hope no one will comment in any strong way without 
actually reading them. 
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
 
 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton
Sent: Tuesday, February 25, 2014 1:55 PM
To: mich...@californialaw.org; Law & Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

 
…and Alan has been championing this bill on the spot at the Arizona capitol. 
Sigh. I have fought him over it when he tried to push me into supporting the 
Idaho bill which was just as egregious as the Arizona bill, but perhaps more 
targeted.
 
Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.com
 



 
Championing Religious Freedom and Human Rights for All People of Faith
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Tuesday, February 25, 2014 1:38 PM
To: religionlaw@lists.ucla.edu
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
 

After reading the legislation, it's amazing how broadly it is drafted. It would 
seem to not only include permitting discrimination on the basis of sexual 
orientation or marital status, but also on the basis of religion.  It would 
make it very easy for any business with a religious inkling to refuse to 
accommodate the religious exercise of employees, or even terminate them on the 
basis of religious differences.

 

The Hobby Lobby case may go a long way in showing what rights employers have, 
and it seems to be part of a general strike against the application of the Bill 
of Rights to the states (14th Amendment).  

 

Any time the principle argument in favor of a potentially dangerous law is, 
"What's the worse that can happen?" I think there's reason to get really 
nervous.

 

There is probably an answer for those who don't want to violate their religious 
conscience by accommodating those members of protected classes that disagree 
with them, but this legislation is not it.

 

Michael D. Peabody, Esq.

Editor

ReligiousLiberty.TV

http://www.religiousliberty.tv

 

 

 




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-- 
Michael Worley
BYU Law School, Class of 2014


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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

These amendments to the state RFRAs will foment and permit discrimination based 
on race, gender, sexual orientation,
religion, and disability.  They are the beginning of true Balkanization in the 
United States if passed (even ministers are coming
out of the wordwork in opposition, so they still look politically problematic). 
  Those who would 
like to say that there are no religious believers who will do that, I would be 
happy to provide the list of religious groups
that have beliefs that would encourage discrimination in each of these 
categories.


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 
http://sol-reform.com





-Original Message-
From: Michael Peabody 
To: religionlaw 
Sent: Tue, Feb 25, 2014 4:46 pm
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


After reading the legislation, it's amazing how broadly it is drafted. It would 
seem to not only include permitting discrimination on the basis of sexual 
orientation or marital status, but also on the basis of religion.  It would 
make it very easy for any business with a religious inkling to refuse to 
accommodate the religious exercise of employees, or even terminate them on the 
basis of religious differences.


The Hobby Lobby case may go a long way in showing what rights employers have, 
and it seems to be part of a general strike against the application of the Bill 
of Rights to the states (14th Amendment).  


Any time the principle argument in favor of a potentially dangerous law is, 
"What's the worse that can happen?" I think there's reason to get really 
nervous.


There is probably an answer for those who don't want to violate their religious 
conscience by accommodating those members of protected classes that disagree 
with them, but this legislation is not it.


Michael D. Peabody, Esq.
Editor
ReligiousLiberty.TV
http://www.religiousliberty.tv








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Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

Michael-- Your assumptions and conclusions are wrong as a matter of empirical 
fact.   



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 
http://sol-reform.com





-Original Message-
From: Michael Worley 
To: Law & Religion issues for Law Academics 
Sent: Sat, Feb 22, 2014 3:00 pm
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


Not only are "religious believers [] inherently beneficial to society", but 
that public opinion on same-sex couples is evolving so rapidly that most people 
will not discriminate against gays and lesbians except in the context of 
marriage.  Just because something is legal doesn't mean people will use it.


As to the Westboro Baptist Churches of the world, the public will have societal 
pressure on them while respecting their rights in the first amendment.

And opposing same-sex marriage for religious reasons is not animus.




On Sat, Feb 22, 2014 at 11:34 AM,   wrote:

 I think we can all agree, as legal scholars, that religiously-based animus is 
still animus.  See Loving v. VA; Bob Jones Univ. v. US




The so-called "hysterical"  parade of horribles is squarely included in the 
language of the law, no?
Are we supposed to believe that religious believers will not use the law to the 
full extent of its language?  
What would be the reasoning behind that?  That religious believers are 
inherently beneficial to society and, therefore,
will always act in ways that are not hateful or dangerous or bad for society?


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 
http://sol-reform.com






-Original Message-
From: Michael Worley 
To: Law & Religion issues for Law Academics 


Sent: Sat, Feb 22, 2014 12:40 pm
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


The famous cases (Elane, etc.) which prompted this all involve same-sex 
ceremonies, not that parade of horribles Marci said.




I hope all can agree opposition to same-sex marriage is not "hatred of 
homosexuals."  

See this amicus brief: 
http://www.scribd.com/doc/206330147/13-4178-Amicus-Brief-of-Law-Professors






On Sat, Feb 22, 2014 at 10:08 AM,   wrote:

The "hysteria" involves the capacity of the bill to permit restaurants, hotels, 
and other places of public accommodation to refuse
service to homosexuals.   How is it different from a Jim Crow law in that way?  
 Don't forget the Jim Crow laws were supported
by religious principles and believers as well.   It was the entire southern 
society, including many clergy and believers, who were racist
and didn't want to have to eat near or be with blacks.


It is unconstitutional under the Romer reasoning, not because it is facially 
aimed at homosexuals, but rather because its only
justification is hatred of homosexuals.   As in the free exercise doctrine, 
facial neutrality is not enough to save a law that has
no justification other than animus.


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 
http://sol-reform.com






-Original Message-
From: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
Penalver, Eduardo 
Sent: Sat, Feb 22, 2014 10:14 am
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


You're not missing anything; you're failing to join in the hysteria. The 
Arizona 
bill leaves to the courts the questions whether assisting with a wedding you 
find sinful is a substantial burden and whether there is a compelling interest 
in making you do it anyway. It is in no way like the Kansas bill.

Instead, it amends the Arizona RFRA to resolve two issues that have become the 
subject of dispute -- are people covered with respect to things they do in 
their 
businesses, and can you use RFRA as a defense when sued by a private citizens 
-- 
and some other tweaks that address no live issue that I'm aware of and don't 
seem to make much difference.

On Sat, 22 Feb 2014 04:07:40 +
 "Penalver, Eduardo"  wrote:
>What's interesting about the Az bill is that it does not facially target same 
sex couples - it seems to just extend the state RFRA to disputes among private 
parties.  I don't think Romer would really apply.  On the other hand, it's not 
clear that it would accomplish what its proponents want.  Am I missing 
something?
>
>On Feb 21, 2014, at 9:18 PM, "Marty Lederman" 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>
>And a story out of Arizona . . .
>
>http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpw&rref=politics
>
>Here's the bill (likely to be vetoed):
>
>http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf
>
>
>On Sun, Feb

Re: Accommodation vs. the complicity theory

[hamilton02]

The state RFRAs and the First Amendment are raised in abuse and neglect cases 
ALL OF THE TIME.  
What is the "least restrictive means" of punishing a parent who lets a child 
die of a treatable ailment?  Here is what they argue:
civil penalties, rather than criminal.   So let's not put parents in jail who 
watch their children die.  Let them go home
and "care" for their other children.  


The principled line that protects children (and others at risk) was enunicated 
plainly in Employment Div. v. Smith.  


The Coalition's no-exemption policy described by Doug in the CLS brief led to 
children's advocates being ignored in the state
rfra proposals.  But children don't vote.  (Fortunately, it broke down in PA 
and they actually included a few exceptions, like
crimes against children, but that is the exception that proves the rule, and 
did not extend to all actions that harm children
in any event.)


 Finally, there are groups affected by the RFRAs that have political power, 
e.g., the gay rights/civil rights community
and women's rights groups.  Now, finally, the public is seeing these laws for 
what they are--extreme statutes that endanger the vulnerable.


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 
http://sol-reform.com





-Original Message-
From: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Sent: Sat, Feb 22, 2014 1:00 pm
Subject: Re: Accommodation vs. the complicity theory



I really have a hard time listening to a claim that RFRA supporters think that 
"being required to not abuse children [is] an invasion of religious liberty."


Mark


Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Feb 21, 2014, at 2:46 PM, "Steven Jamar"  wrote:


I was, early on, generally a support of RFRA and thought the Smith rule went 
too far.  I thought that the substantial burden would work out much as it has — 
courts have been reluctant to find a substantial burden very easily.


But in the last decade, and in particular with the response of some 
religionites to laws prohibiting discrimination against gays, and pharmacists 
refusing to dispense legal drugs, and others claiming to be exempt from 
straight-up commercial regulation like the ACA — well, I am starting (gag) to 
think Scalia’s approach was more right than RFRA after all.  Further proof, I 
guess, that even blind squirrels can find nuts sometimes.


We have shifted heavily to an accommodationist model, away from a separationist 
model, away from a same-rules-for-everyone model toward a unit veto by 
religionites. 


Since when is a tax on doing business a substantial burden?  Since when is 
paying a tax, some of which goes to fight wars, “complicity”?  Since when is 
being required to not abuse children an invasion of religious liberty?  Since 
when is requiring minimum wage compliance, OSHA compliance, environmental 
standards compliance causing “complicity”?  


Here’s hoping the complicity theory loses bigtime.


Accommodating practices is one thing — accommodating all sorts of religious 
beliefs under a “complicity” theory — well, I think that was properly rejected 
in Reynolds in 1878.


Steve




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




"Nonviolence means avoiding not only external physical violence but also 
internal violence of spirit. You not only refuse to shoot a man, but you refuse 
to hate him."


Martin Luther King, Jr.












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Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

 I think we can all agree, as legal scholars, that religiously-based animus is 
still animus.  See Loving v. VA; Bob Jones Univ. v. US




The so-called "hysterical"  parade of horribles is squarely included in the 
language of the law, no?
Are we supposed to believe that religious believers will not use the law to the 
full extent of its language?  
What would be the reasoning behind that?  That religious believers are 
inherently beneficial to society and, therefore,
will always act in ways that are not hateful or dangerous or bad for society?


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 
http://sol-reform.com





-Original Message-
From: Michael Worley 
To: Law & Religion issues for Law Academics 
Sent: Sat, Feb 22, 2014 12:40 pm
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


The famous cases (Elane, etc.) which prompted this all involve same-sex 
ceremonies, not that parade of horribles Marci said.




I hope all can agree opposition to same-sex marriage is not "hatred of 
homosexuals."  

See this amicus brief: 
http://www.scribd.com/doc/206330147/13-4178-Amicus-Brief-of-Law-Professors






On Sat, Feb 22, 2014 at 10:08 AM,   wrote:

The "hysteria" involves the capacity of the bill to permit restaurants, hotels, 
and other places of public accommodation to refuse
service to homosexuals.   How is it different from a Jim Crow law in that way?  
 Don't forget the Jim Crow laws were supported
by religious principles and believers as well.   It was the entire southern 
society, including many clergy and believers, who were racist
and didn't want to have to eat near or be with blacks.


It is unconstitutional under the Romer reasoning, not because it is facially 
aimed at homosexuals, but rather because its only
justification is hatred of homosexuals.   As in the free exercise doctrine, 
facial neutrality is not enough to save a law that has
no justification other than animus.


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 
http://sol-reform.com






-Original Message-
From: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
Penalver, Eduardo 
Sent: Sat, Feb 22, 2014 10:14 am
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


You're not missing anything; you're failing to join in the hysteria. The 
Arizona 
bill leaves to the courts the questions whether assisting with a wedding you 
find sinful is a substantial burden and whether there is a compelling interest 
in making you do it anyway. It is in no way like the Kansas bill.

Instead, it amends the Arizona RFRA to resolve two issues that have become the 
subject of dispute -- are people covered with respect to things they do in 
their 
businesses, and can you use RFRA as a defense when sued by a private citizens 
-- 
and some other tweaks that address no live issue that I'm aware of and don't 
seem to make much difference.

On Sat, 22 Feb 2014 04:07:40 +
 "Penalver, Eduardo"  wrote:
>What's interesting about the Az bill is that it does not facially target same 
sex couples - it seems to just extend the state RFRA to disputes among private 
parties.  I don't think Romer would really apply.  On the other hand, it's not 
clear that it would accomplish what its proponents want.  Am I missing 
something?
>
>On Feb 21, 2014, at 9:18 PM, "Marty Lederman" 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>
>And a story out of Arizona . . .
>
>http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpw&rref=politics
>
>Here's the bill (likely to be vetoed):
>
>http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf
>
>
>On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>Not so fast, Chip!
>
>The Kansas House passed it, but it appears that the Senate will not do so . . 
>. 
despite a 32-8 Republican majority!
>
>http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story
>
>Even in red states, it's incredible how fast hearts and minds are changing . . 
.
>
>
>On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu 
>mailto:icl...@law.gwu.edu>> 
wrote:
>Look at the new Kansas law on the right of individuals and religious entities 
to discriminate against those in same sex marriages, domestic partnerships, 
etc.: 
http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\
>
>Note the definitions in section 3 (a) which defines religious entity to 
>include 
"a privately-held business . . ."  (section 3(a)(3)).  Perhaps this is the 
unfortunate wave of the future in red states, preparing for a 14th Amendment 
obligation to rec

Re: Kansas/Arizona statutes protecting for-profit businesses

[hamilton02]

The "hysteria" involves the capacity of the bill to permit restaurants, hotels, 
and other places of public accommodation to refuse
service to homosexuals.   How is it different from a Jim Crow law in that way?  
 Don't forget the Jim Crow laws were supported
by religious principles and believers as well.   It was the entire southern 
society, including many clergy and believers, who were racist
and didn't want to have to eat near or be with blacks.


It is unconstitutional under the Romer reasoning, not because it is facially 
aimed at homosexuals, but rather because its only
justification is hatred of homosexuals.   As in the free exercise doctrine, 
facial neutrality is not enough to save a law that has
no justification other than animus.


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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
Penalver, Eduardo 
Sent: Sat, Feb 22, 2014 10:14 am
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


You're not missing anything; you're failing to join in the hysteria. The 
Arizona 
bill leaves to the courts the questions whether assisting with a wedding you 
find sinful is a substantial burden and whether there is a compelling interest 
in making you do it anyway. It is in no way like the Kansas bill.

Instead, it amends the Arizona RFRA to resolve two issues that have become the 
subject of dispute -- are people covered with respect to things they do in 
their 
businesses, and can you use RFRA as a defense when sued by a private citizens 
-- 
and some other tweaks that address no live issue that I'm aware of and don't 
seem to make much difference.

On Sat, 22 Feb 2014 04:07:40 +
 "Penalver, Eduardo"  wrote:
>What's interesting about the Az bill is that it does not facially target same 
sex couples - it seems to just extend the state RFRA to disputes among private 
parties.  I don't think Romer would really apply.  On the other hand, it's not 
clear that it would accomplish what its proponents want.  Am I missing 
something?
>
>On Feb 21, 2014, at 9:18 PM, "Marty Lederman" 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>
>And a story out of Arizona . . .
>
>http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpw&rref=politics
>
>Here's the bill (likely to be vetoed):
>
>http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf
>
>
>On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>Not so fast, Chip!
>
>The Kansas House passed it, but it appears that the Senate will not do so . . 
>. 
despite a 32-8 Republican majority!
>
>http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story
>
>Even in red states, it's incredible how fast hearts and minds are changing . . 
.
>
>
>On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu 
>mailto:icl...@law.gwu.edu>> 
wrote:
>Look at the new Kansas law on the right of individuals and religious entities 
to discriminate against those in same sex marriages, domestic partnerships, 
etc.: 
http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\
>
>Note the definitions in section 3 (a) which defines religious entity to 
>include 
"a privately-held business . . ."  (section 3(a)(3)).  Perhaps this is the 
unfortunate wave of the future in red states, preparing for a 14th Amendment 
obligation to recognize same sex marriage.
>
>
>On Sun, Feb 16, 2014 at 2:01 PM, Marty Lederman 
>mailto:lederman.ma...@gmail.com>> 
wrote:
>On a quick read, it appears that neither of the state assisted suicide 
>statutes 
is analogous, either.  They merely confirm that although entities can assist 
suicides, no one is under any obligation to do so.  No need for any exemption 
at 
all, since there's no duty in the first place.  And thus, not surprisingly, no 
reference to religion at all, far as I could see.
>
>___
>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.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change o

Re: Leaving room for counter-cultural communities on contraception

[hamilton02]

Greg:  I agree that views on contraception have nothing to do with the sexual 
culture at a school.  You wrote the following in which you suggest that a 
school that opposes contraception creates an "oasis" for male/female relations. 
 


Rather, they have seen the assumption that all women use (or should use) 
artificial contraception as serving to fuel the hyper-sexualized environment on 
college campuses, leading to the familiar “hook-up” culture and its devaluation 
of human sexuality and degradation of women.  Rather than seeing contraception 
as enhancing equality, these women have seen the presumption of contraceptive 
use as encouraging men to behave irresponsibly and to treat women as sexual 
conquests.  In sum, by resisting the contraception narrative, these women have 
set a different path for romantic relationships.  They believe they have 
achieved healthier relationships with men.

 

When these professional women marry, they engage in discourse and planning with 
their husbands about children, a dialogue that cannot be avoided because 
contraception is not used to make it possible to avoid the question.  Contrary 
to the absurd suggestion that women who do not use artificial contraception 
typically have ten to twenty children, these women know that family planning 
and artificial contraception are not synonymous, and they insist that modern 
women have not lost all capacity for self-control.  While they may choose to 
have larger families than the norm in some circles, the professional Catholic 
women that I know who joyfully follow Church teaching have families with 
children ranging in number from a single child to about half a dozen, with most 
in the two or three range.

 

Now let us suppose that a particular Catholic community—a Catholic university, 
let us say—wishes to build an oasis in which young men and women have an 
alternative to the contraception culture that dominates most of society.  This 
university builds single-sex dormitories and adopts what we’ll label 
“parietals” that call for person of the opposite sex to leave a student’s dorm 
room after a certain time each night.  Every student admitted to the university 
(and every faculty or staff member employed by the university) is well aware of 
the Church’s teaching and of the university’s considered policies in accordance 
with that teaching.




Patrick Henry College and Bob Jones University are right there with your 
hypothetical Catholic university on opposing contraception.  Neither is the 
oasis you describe.  Nor is
Notre Dame, as you know. I am all in favor of counter-cultural communities on a 
wide range of issues, but I do not think that your linkage between 
contraception beliefs and
"healthier relationships with men" holds water.


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 
http://sol-reform.com





-Original Message-
From: Sisk, Gregory C. 
To: 'Law & Religion issues for Law Academics' 
Sent: Thu, Feb 20, 2014 10:13 pm
Subject: RE: Leaving room for counter-cultural communities on contraception



I genuinely do appreciate the respect.  I have been gratified by the 
surprisingly large number of encouraging private messages I have received from 
people of different views politically and about the value of artificial 
contraception.
 
So I feel somewhat churlish in saying this, but I don’t see that Marci’s 
message is responsive to mine.  Surely she does not mean to suggest that a 
university’s track record of addressing sexual violence has an empirical 
correlation to its position on the use of artificial contraception.  And I 
don’t find any support for such a suggestion in the literature or her article.  
Indeed, reading Marci’s linked article, I find nothing that suggests an 
educational community’s decision to affirm young women and men in treating 
sexuality as a sacred gift and not to distribute contraception could somehow 
lead to sexual violence – indeed, the word “contraception” does not appear in 
her linked article at all.  Nor does she discuss any university or college that 
advances the Catholic Church’s integrated teachings about human dignity and 
sexuality, much less consider the distinctly feminist character of the voices 
of Catholic professional women that I described.
 
Moreover, as a leader in faculty governance and working directly on sexual 
assault policies on the university campus, I see nothing in the sobering 
statistics and episodes around the country supporting a policy conclusion that 
making contraception more available on a college campus is the answer to end 
sexual assaults.  We cannot so easily avoid engaging with that problem.  The 
problem of sexual violence on college campuses of all kinds and types – public 
and private, elite and regional, religious and non-religious, Catholic and 
secular – must be addressed directly and not avoide

RFRA/RLPA legislative history

[hamilton02]

Doug-- the floor debate on RLPA?   It was never passed. And I don't know 
what you mean by "both sides agreed."  Many members "agreed"
that it was a bad bill, which is why it didn't pass.  Bobby Scott was adamantly 
opposed from day one, and raised every argument available to halt it,
and succeeded.   This is the worst of post-enactment legislative history. 


But I at least respect your argument for not trying to argue that RFRA when 
enacted was obviously intended to cover for-profit organizations.
You need RLPA's legislative history to make the argument.  No doubt about it.   
If the conservative Justices abandon their disdain
for legislative history, not to mention, post-enactment legislative history in 
Hobby Lobby, it will be remarkable.




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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Thu, Feb 20, 2014 2:11 pm
Subject: RE: recommended Hobby Lobby posts



I assume that Marci wasn’t there for the floor debate. There were many 
statements, they were very explicit, both sides agreed. Corporations would be 
covered based on the religious views of their owners or senior management. What 
takes a tortured reading is not to take those statements at face value.
 

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 Marci Hamilton
Sent: Thursday, February 20, 2014 1:49 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: recommended Hobby Lobby posts

 

As someone who was involved in RLPA in Congress from day one through many 
hearings, only a tortured reading of history supports the notion that Congress 
believed that its proponents believed RFRA should apply to for-profit 
organizations let alone that they intended it to. 

 

 Given current deadlines I cannot add more , but I look forward to reading 
Jim's piece and will be doing something of my own closer to the argument.

 

Marci

 

 


Marci A. Hamilton

Verkuil Chair in Public Law

Benjamin N. Cardozo Law School

Yeshiva University

@Marci_Hamilton 

 

 



On Feb 20, 2014, at 12:34 PM, James Oleske  wrote:



I have a short essay coming out next month that offers a considerably different 
take than Doug on both the legislative history of RLPA and the text of the 1999 
version of RLPA as compared to RFRA. A draft of the essay is available here:

Obamacare, RFRA, and the Perils of Legislative History
http://ssrn.com/abstract=2398763


 

The relevant discussion can be found on pages 5-10 of the draft. My bottom-line 
conclusion is that "the 1998 and 1999 debates over RLPA fall far short of 
demonstrating an 'undisputed public understanding that the language in RFRA 
protected for-profit corporations and their owners.'" 

On the specific claim that the text of RFRA and RLPA were identical, I make the 
same point I see Marty has made in his separate response to Doug -- the 1999 
RLPA has a "broad construction" provision that was in neither the 1998 RLPA or 
RFRA. Thus, the more relevant RLPA legislative history is the 1998 debate, not 
the 1999 debate Doug relies upon in the CLS amicus brief and his SCOTUS Blog 
post. And the 1998 testimony casts considerable doubt on the claim that large 
for-profit businesses are protected by RFRA.  

 

On a different note, I want to second Marty's recommendation of the symposium 
over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip 
and Bob's piece, which makes an important argument calling for symmetry between 
the treatment of employee accommodations under Title VII and employer 
accommodations under RFRA (in both cases this avoids establishment concerns 
raised by exemptions that impose more than de minimis burdens on others). Chip 
and Bob's piece is available here: 
http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/


- Jim

 

On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock  wrote:


I have not gone back to review all the RLPA testimony, but yes we did predict 
that large commercial businesses seeking religious exemptions from civil rights 
laws would generally lose.
 
The context of that testimony was civil rights claims. And it was a prediction 
of what the courts would do in fact, not a judgment about what they should do. 
But I would probably be comfortable with most of the results we predicted.
 
The kinds of civil rights claims RLPA’s supporters wanted to preserve mostly 
did not arise in business situations. Religious discrimination by religious 
organizations setting their criteria for membership, as in CLS v. Martinez, 

Re: Leaving room for counter-cultural communities on contraception

[hamilton02]

I respect Greg's intent here.   But, from where I am sitting, facts are more 
important than lofty goals when it comes to the protection of women from sex 
abuse and assaults.  



To the extent that Greg's reasoning is intended to imply that universities 
opposed to contraception are oases of protection for female students, I offer 
my justia.com column today.


http://verdict.justia.com/2014/02/20/sex-assaults-evangelical-colleges-united-nations-vatican


Facts matter in religious liberty debates.




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 
http://sol-reform.com





-Original Message-
From: Sisk, Gregory C. 
To: 'religionlaw@lists.ucla.edu' 
Sent: Tue, Feb 18, 2014 8:55 pm
Subject: Leaving room for counter-cultural communities on contraception



Following up on yesterday’s conversation, let me approach the question of 
Catholic resistance to the contraception mandate as a plea for something more 
than grudging tolerance of different opinion but rather a request for a more 
“liberal” acceptance of a community with an alternative view of the good life.  
At the outset, I emphasize that my primary purpose here is not to persuade you 
that this alternative view is better.  I am not even arguing today that those 
who advocate for ready and cost-free access to artificial contraception should 
refrain from advancing that policy preference through political means.  My aim 
of the moment is much more modest, which is to contend that in a free and 
diverse society, public policy should leave ample breathing room for a 
community with a counter-cultural understanding on these important questions.
 
I appreciate that contraception is widely viewed throughout the academy as an 
unalloyed positive social good, even a “revolutionary” and necessary step for 
women’s equality.  Indeed, it would not be an exaggeration to describe the 
pro-contraception position as the privileged narrative in the academy.  The 
contrary view is seldom heard in the halls of the typical law school and not 
much respected on the irregular occasion that it is voiced.  Those who resist 
the use of artificial contraception are regarded at best as being quaint or in 
need of consciousness-raising and are seen at worst as retrograde believers in 
a subservient role for women as incessant baby-makers.  Through this post, I 
want to challenge this group of open-minded scholars to entertain the 
possibility that women and men of sound mind and good heart, many of “feminist” 
inclinations, can reasonably and even joyfully embrace an alternative worldview 
that embraces sexuality as a gift but excludes artificial contraception.
 
The perspective that I sketch here, inartfully, is that shared with me by many 
friends, colleagues, and former students—Catholic women who accept the Church’s 
teaching on sexuality and contraception, not as a rigid doctrinal imposition, 
but as a gift.  And these are successful professional women, who have 
satisfying careers as lawyers or law professors, which they have integrated 
with fulfilling personal and family lives.  For on-line examples of these 
voices, although I do not know these women personally, I suggest these links:  
http://catholicmoraltheology.com/catholics-contraception-and-feminisms/
http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception
 
For the orthodox Catholic women that I have known in professional settings, 
they have not experienced the ready availability of artificial contraception as 
liberating.  Rather, they have seen the assumption that all women use (or 
should use) artificial contraception as serving to fuel the hyper-sexualized 
environment on college campuses, leading to the familiar “hook-up” culture and 
its devaluation of human sexuality and degradation of women.  Rather than 
seeing contraception as enhancing equality, these women have seen the 
presumption of contraceptive use as encouraging men to behave irresponsibly and 
to treat women as sexual conquests.  In sum, by resisting the contraception 
narrative, these women have set a different path for romantic relationships.  
They believe they have achieved healthier relationships with men.
 
When these professional women marry, they engage in discourse and planning with 
their husbands about children, a dialogue that cannot be avoided because 
contraception is not used to make it possible to avoid the question.  Contrary 
to the absurd suggestion that women who do not use artificial contraception 
typically have ten to twenty children, these women know that family planning 
and artificial contraception are not synonymous, and they insist that modern 
women have not lost all capacity for self-control.  While they may choose to 
have larger families than the norm in some circles, the professional Catholic 
women that I know who joyfully fo

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[hamilton02]

With all due respect to those disputing the numbers, families of the size I 
mentioned were not uncommon before contraceptives were widely available, not 
just
among Catholic families, but also other families.  It was particularly common 
in Ireland, where the Catholic Church was part of the government.


Contraception was a revolution for women.   I will have nothing else to add on 
this issue.   


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 
http://sol-reform.com





-Original Message-
From: Richard Dougherty 
To: Law & Religion issues for Law Academics 
Sent: Sun, Feb 16, 2014 5:07 pm
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity


Two points of clarification that I think may be helpful:


1) One of the most important consequences of the HHS mandate is that a far 
greater number of Catholics now have a better idea of what the Church's 
teaching is on contraception and other life issues than they did before, which 
makes the imposition something of a mixed blessing.  (Think here of Kelo and 
the sudden awakening to property rights on the part of some.)  I don't know 
without looking it up the percentage of Catholics who know what the Church's 
teaching is on contraception, but it is quite low.  That may raise other 
questions, though.


2) The absence of the use of contraceptives does not automatically produce 
10-20 children in a marriage, even when the couple is open to that outcome.  
Almost never did before the introduction of contraceptives, and almost never 
does now.


Richard Dougherty
University of Dallas





On Sun, Feb 16, 2014 at 3:20 PM, Marci Hamilton  wrote:


There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.


Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.  


On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law

Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 







On Feb 16, 2014, at 3:45 PM, "Douglas Laycock"  wrote:



No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.
 
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: Notre Dame-- where's the complicit "participation"? Sincerity

[hamilton02]

I am aware of that, Mark.  I hope I have not offended Catholics on this list by 
raising this fact question.  I married into a Philadelphia Irish
Catholic family and have Catholic clergy on my father's side.  I was speaking 
based on my experience with Catholic family, friends, neighbors.


In the US, statistics about believers are indeed relevant, because religious 
belief belongs to the individual(s), not just the entities.


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 
http://sol-reform.com





-Original Message-
From: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Sent: Sun, Feb 16, 2014 6:32 pm
Subject: RE: Notre Dame-- where's the complicit "participation"? Sincerity



Let me add in response to Marci that the Catholic Church is not a democracy 
(let alone a New England style direct democracy), nor, of course, does the 1st 
Am. permit the government to treat it as a democracy. Statistics about beliefs 
of American Catholics are essentially irrelevant.


Mark Scarberry
Pepperdine University School of Law





Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Richard Dougherty 
Date:02/16/2014 2:07 PM (GMT-08:00) 
To: Law & Religion issues for Law Academics 
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity 


Two points of clarification that I think may be helpful:


1) One of the most important consequences of the HHS mandate is that a far 
greater number of Catholics now have a better idea of what the Church's 
teaching is on contraception and other life issues than they did before, which 
makes the imposition something of a mixed blessing.  (Think here of Kelo and 
the sudden awakening to property rights on the part of some.)  I don't know 
without looking it up the percentage of Catholics who know what the Church's 
teaching is on contraception, but it is quite low.  That may raise other 
questions, though.


2) The absence of the use of contraceptives does not automatically produce 
10-20 children in a marriage, even when the couple is open to that outcome.  
Almost never did before the introduction of contraceptives, and almost never 
does now.


Richard Dougherty
University of Dallas





On Sun, Feb 16, 2014 at 3:20 PM, Marci Hamilton  wrote:


There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.


Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.  


On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law

Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 







On Feb 16, 2014, at 3:45 PM, "Douglas Laycock"  wrote:



No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.
 
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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messages to others.

 
___
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Anyone can subscribe to th

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[hamilton02]

Is Doug correct as a legal matter that the bishops speak for Notre Dame, as 
opposed to its officials, and the officials' actions are irrelevant?  And that 
the actions of its co-religionist officials are irrelevant to  proof of the 
organization's beliefs?  Why don't the practices of Notre Dame's officials 
prove insincerity in this case?   (I'm assuming that they don't have the 10-20 
children
typically incident to not using birth control and that they follow the vast 
majority of American Catholics in rejecting the belief against contraception).  
How can they claim
a right not to provide contraception for their employees/students in their 
health plan because of complicity if they are using it themselves?


To provide an analogy:   In the prison cases, you can test a prisoner's 
sincerity when he demands kosher food (because it's better than the usual fare),
and claims a conversion to Judaism, but they find pork rinds in his cell, it is 
assumed he is not sincere and does not receive the accommodation (a state
prison general counsel provided this example for me)


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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Sat, Feb 15, 2014 1:45 pm
Subject: Notre Dame-- where's the complicit "participation"?  Sincerity



If any of the law professors who have been urging religious liberty protections 
in marriage bills had been involved in Kansas, it would have been a more 
sensible bill. The Kansas bill overreaches, in my view, most obviously by 
protecting businesses without regard to size or ownership and by providing no 
exception for cases of local monopolies.  And quite possibly in other ways if I 
had time to study it carefully.
 
In an ideal world, this academic would help them write a better bill. But there 
are only so many hours in a day, and it hasn’t happened.
 
Nor have I ever assumed universal sincerity or anything like it. Asking the 
owners of Hobby Lobby about their birth control practices would almost 
certainly prove nothing, because they object only to emergency contraception 
and IUDs. Notre Dame is a harder case; its administration may feel obligated to 
follow the bishop’s teaching institutionally even though they feel no such 
obligation in their personal lives. The bishops speak for the Catholic Church, 
even when the lay people overwhelmingly disagree.
 
I do think the Notre Dame lawyer overreached in his reading of Thomas v. Review 
Board. The wording of the opinion was strong, but it was in the context of a 
believer making an easily understandable distinction and a not very aggressive 
claim about the point at which his faith was burdened, and the state making 
silly arguments that could not withstand analysis. I don’t think the Court 
meant that no court can every question the existence or substantiality of a 
burden, and certainly lower courts have not read it that way, except possibly 
for a few of the opinions in the current round of litigation. Churches and 
believers explaining their faith and how it is burdened are entitled to some 
deference on that issue, but they are not entitled to judicial abdication. They 
have rarely gotten the abdication that Notre Dame seeks, and very often, they 
have gotten skepticism bordering on hostility instead of deference.
 
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 hamilto...@aol.com
Sent: Saturday, February 15, 2014 11:16 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity
 
Fair questions.  Legal academics do not operate in an isolated ivory tower, but 
rather in the public sphere.  Law professors, after all, are primarily 
responsible for crafting and supporting 

RFRA from an early stage until today, in their roles as professors and lawyers. 
 Witness the "law professor" briefs submitted to the Court.  And in fomenting 
the extreme RFRAs in the states that are now circulating, as evidenced by the 
letter submitted by professors as professors to the Texas legislature last year 
in support of a RFRA without "substantial" modifying "burden."  I have not yet 
investigated which law professors, if any, support the pending Kansas RFRA that 
will make it possible for businesses to reject homosexuals' business, but we 
shall see.  

 

We don't just discuss things, we directly affect public policy. As such, we 
have moral obligations to the larger society, which are rightly judged by 
history and the larger society.

It is my view that religious liberty specialists tend to debate some issues 
while accepting taboos, like not q

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[hamilton02]

Fair questions.  Legal academics do not operate in an isolated ivory tower, but 
rather in the public sphere.  Law professors, after all, are primarily 
responsible for crafting and supporting
RFRA from an early stage until today, in their roles as professors and lawyers. 
 Witness the "law professor" briefs submitted to the Court.  And in fomenting 
the extreme RFRAs in the states that are now circulating, as evidenced by the 
letter submitted by professors as professors to the Texas legislature last year 
in support of a RFRA without "substantial" modifying "burden."  I have not yet 
investigated which law professors, if any, support the pending Kansas RFRA that 
will make it possible for businesses to reject homosexuals' business, but we 
shall see.  


We don't just discuss things, we directly affect public policy. As such, we 
have moral obligations to the larger society, which are rightly judged by 
history and the larger society.
It is my view that religious liberty specialists tend to debate some issues 
while accepting taboos, like not questioning sincerity.  That gives cover to 
disingenuous religious claimants and, again in my view, undermines the 
authenticity of their legal analysis, which rests on empirical assumptions that 
are counterfactual. 


By complicity here I mean that if academics are buying into and perpetuating 
the taboos on which religious lobbyists and leaders insist, they are partially 
responsible for the harm done.  It is our job, in my view, to examine these 
issues with our intellects and to tell the public what our intellectual 
analysis yields.  There are many Americans who would take a different view of a 
professor's work and public arguments if he or she were to disclose that she is 
assuming sincerity by all religious actors.  


I think I've made myself pretty clear that I think HL's and ND's positions are 
harmful to women and the larger society.  




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 
http://sol-reform.com





-Original Message-
From: Marc DeGirolami 
To: Law & Religion issues for Law Academics 
Cc: kurtlash2 
Sent: Sat, Feb 15, 2014 10:45 am
Subject: Re: Notre Dame-- where's the complicit "participation"?  Sincerity



With respect, I do not understand the comment below about the “complicity” of 
legal academics in the legal wrongs perpetrated by religious institutions, or 
any institutions, that they study and think about. I am assuming that the 
institutions are engaged in legal wrongs in the cases we are now talking about 
(Notre Dame and Hobby Lobby), which is the assumption from which I’ll proceed 
for purposes of this comment. 


First, what is the meaning of “complicity” in this context? Is it a meaning 
like the meaning being pressed in the lawsuits—a religious meaning? Is it a 
meaning derived from criminal law—as in accomplice liability? I am not 
suggesting that anybody believes that law professors are criminally complicit; 
probably the statement refers to moral complicity. But that still leaves the 
problem of understanding the meaning of the word here. In criminal law, 
complicity generally requires sharing the purpose of the wrongdoer, or perhaps 
taking a view with the intention that it will enable or encourage the wrongdoer 
to continue doing wrong. If it is another meaning, what is it?


Second, assuming the meaning is something approaching shared purpose, I do not 
understand how legal academics, by discussing various issues on a listserv or 
elsewhere and thinking through them, and (so far as I can see) disagreeing with 
one another, are complicit in the wrongdoing of the subjects that they study. 
It would be very unusual (and certainly not reflective of the ethos on the 
criminal law listserv to which I also subscribe) to describe a scholar of 
criminal law as complicit in the wrongdoing of a criminal defendant by taking 
positions that are protective of his rights under, e.g., the Fourth Amendment 
or the Sixth Amendment or a statute, notwithstanding overwhelming evidence of 
his guilt. Similarly, in evidence, there are all sorts of presumptions and 
privileges that work to protect people’s rights, sometimes at the expense of 
other values related to the question of liability or culpability. In other 
areas of law, legal scholars understand that evidence of guilt or liability is 
not the only thing that matters, and that there are limits beyond which a 
civilized society is not prepared to go because to do so would sacrifice other 
important values. This area should not be different. And law professors, in 
order to do what they have professional obligations to do (which does not 
include being "original"), need to be able to talk about and work through 
positions without the fear of being branded as themselves perpetrators of civil 
or criminal wrongs whose culpability is derived from the posit

Re: Posner on oral advocacy in religion caseesri

[hamilton02]

I think women do have a right here, which is the right not to be discriminated 
against on the basis of gender.   We are way outside the bounds of 
Hosanna-Tabor, so
the right not to be discriminated against based on gender stands.  Marty's 
point is correct that there is global equal treatment here, which undermines 
ND's arguments based on 
precedent and common sense.   But there is also a more specific equality 
argument.  This is an attempt to force women to pay for their medical care, 
which is specific to women,
 while men are covered.  As everyone knows, it's not simply medical care to 
avoid pregnancy, but also medical care for many ailments (some very painful), 
which require hormonal treatment.   
Whether it is $5/year or $2,000/year, misses the point.  The govt's interest in 
ensuring that women, as a class, are not shortchanged in the health care system 
to their medical 
detriment must trump the de minimis burden on ND.   



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 
http://sol-reform.com





-Original Message-
From: Marty Lederman 
To: David Bernstein ; Law & Religion issues for Law 
Academics 
Cc: conlawprof ; zentner 
Sent: Fri, Feb 14, 2014 5:34 pm
Subject: Re: Posner on oral advocacy in religion caseesri



Who's talking about a deprivation of liberty, and why should that matter?  If 
you didn't receive social security benefits because your employer had a 
religious reason for refusing to pay into the system, would you not be injured, 
since social security is now something to which everyone is entitled?  
Likewise, under the ACA, virtually all Americans are now entitled to obtain 
affordable insurance, without regard to preexisting conditions, etc.  And that 
new universal benefit is the right to obtain an insurance plan that must 
include certain services that you can receive without cost (e.g., no co-pay), 
such as immunizations, colorectal cancer screening, pediatric preventive care, 
and contraceptive services (as well as many others).


You obtain these benefits regardless of the source of your insurance plan -- 
whether it be through Medicare, or Medicaid, or through a plan on an exchange . 
. . or via an employer-provided plan.  No employer is required to provide a 
plan, but if you do provide one, it must include cost-free reimbursement for 
such services, just as virtually every other plan must. 


Notre Dame, then, is endeavoring to deny its employees and students what all 
other employees and students are entitled to, namely, an affordable plan that 
includes reimbursement for the whole array of required services. 




On Fri, Feb 14, 2014 at 5:12 PM,   wrote:

Allow me to point out, given the tenor of some recent comments, that regardless 
of the outcome of this case, Notre Dame can't and won't stop anyone from buying 
and using contraceptives--they just wouldn't be covered by their health 
insurance.  And given that no one is forced to work for or be a student at 
Notre Dame, all this would really means is that when one is deciding whether to 
be a student at or work for Notre Dame, one would do so with the knowledge that 
contraceptive coverage isn't available.  If you're contraceptives are going to 
cots, say, $400 a year, you just add that in to the cost of your tuition or 
deduct that from your expected salary. I'm not seeing any great deprivation of 
liberty under those circumstances.




 

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Re: courts and lawmaking

[hamilton02]

That is a fact.  I was told by a member of Congress during RLPA's hearings that 
he knew full well it would be unconstitutional, but he would vote for it
regardless.  They game play constitutionality both ways, actually.  Just this 
year, two members of the PA legislature (who are not lawyers) have insisted
that under the PA Constitution, statute of limitations reform for child sex 
abuse is unconstitutional.  That is unsupported by a single case, but they are 
using constitutional arguments to cover for the Catholic bishops.  


These kinds of games counsel in favor of observing the structural limitations 
of the branches, and not just results.  They need to be reminded of their
role on a regular basis, because they are all willing, if given the 
opportunity, to take the power others have if they can get it.  That is the 
principle at work
when Justice O'Connor stated in NY v US that just because the states acquisced 
in an unconstitutional takeover of their power did not make that federal
takeover constitutional.


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 
http://sol-reform.com





-Original Message-
From: Graber, Mark 
To: Law & Religion issues for Law Academics 
Sent: Sun, Dec 29, 2013 4:00 pm
Subject: RE: courts and lawmaking


Probably worth noting that there is an entire literature in political science, 
both with respect to American courts and foreign tribunals, on the political 
construction of judicial review.  The general thesis, drastically 
oversimplified 
(and articulated differently by different people), is that constitutional 
review 
exists because most elected officials most of the time think that having courts 
declare laws unconstitutional serves a variety of political interests.

MAG

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On 
Behalf Of Paul Horwitz [phorw...@hotmail.com]
Sent: Sunday, December 29, 2013 3:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: courts and lawmaking


Subject: Re: courts and lawmaking
From: phorw...@hotmail.com
Date: Sat, 28 Dec 2013 23:17:10 -0500
To: religionlaw@lists.ucla.edu
CC: religionlaw@lists.ucla.edu

Although I don't share this orientation, this is certainly an interesting 
discussion. I'm wondering how New York Times v. Sullivan and Roe v. Wade would 
fare under this standard, and possibly Baker v. Carr or Miranda.

On Dec 28, 2013, at 10:51 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> 
wrote:

Eugene-  I take it you would not have overturned the Lochner line of cases?
Your defense of unaccountable, robust policy making by judges would revive the 
federal court's role in those cases and reverse the reasoning of, eg, 
Williamson 
v lee optical.You have also failed to articulate any meaningful limit on 
federal court policy making.
Perhaps you think there should be no limit, but that is not consistent w the 
separation of powers cases or the Framers' belief that all entities holding 
power must be limited and that one means of limitation is to assign different 
primary roles to each branch.

also--It is not enough to say that Congress can fix a bad decision to excuse a 
violation of a branch's structural role.

I also question your broad generalizations in describing purported federal 
judicial policy making .   As you have to and do concede, federal common law is 
forbidden, so generally you are talking about cases where the federal courts 
are 
engaging in statutory interpretation.  As such, they are not making law in the 
first instance, but rather according to canons of statutory construction.

I think you have fundamentally confused the role of the courts with the results 
of particular decisions.   I also think the state and federal courts cannot be 
equated in terms of their roles, so I am focussing on federal courts.

You also have not responded to any of my concrete examples of how courts have 
gone wrong in religion cases because they lack critical facts where the fact 
record is manufactured by self-interested parties.   Given the incontrovertible 
record of harm religious entities have inflicted on
vulnerable populations, and the fact courts cannot pierce their self-serving 
crafting of the record in most circumstances, the role of the courts you 
describe is likely to harm minorities, children, the disabled, and women.
Not 
to mention employees generally in light of Hosanna Tabor (remember employees 
are 
almost always vulnerable to employer acts unless protected by statute).

For all of these reasons, I am not persuaded that your "description" of federal 
court lawmaking is accurate, and  I continue to believe that RFRA puts federal 
courts in a role where they are institutionally incompetent.Their 
incompetence was clear in the Lochner cases.  The religion cases

Re: Courts and lawmaking

[hamilton02]

Eugene-- I am very familiar with your common law reasoning, which I do find 
persuasive in terms of explaining to students the incremental developments of
constitutional law over time.  I don't find it persuasive, however, in 
explaining institutional competence.  I also don't find persuasive the idea 
that because the
courts hve made rules in the past regarding judicial practice and procedure 
that they are therefore  competent to decide broad-ranging public policy 
issues.  I made
the argument below in God vs. the Gavel in 2005, and will soon be publishing a 
follow-up to it, so I welcome responses.


Courts are constrained by the records manufactured by the parties, and 
constrained from the broad-ranging fact and policy inquiry that legislators can 
do.
In free exercise cases, in particular, the record typically excludes facts and 
policies that should be taken into account when exemptions are being considered.
The federal courts are constrained from considering that larger public policy 
beyond the facts and parties of the case under the Case and Controversy
Clause, which means that the courts are literally creating public policy 
without reference to the parameters necessary reach the correct decision.  A 
great example
of this is Yoder, where the Court was uninformed of the impact on Amish 
children who are under-educated, the number of children who later choose not to 
follow
the religion, and, therefore for whom the agri-education is likely inadequate, 
and a background set of blind assumptions about the necessary goodness of Amish
practices and traditions.   The Court merriily embraced a halcyon vision of the 
beauty of the Amish way of life without reference to facts that would have 
clashed with
the Court's uninformed assumptions.


This extreme involvement by the courts in policy-making under RFRA, with the 
inadequate fact records developed (in part because the religious group demanding
the exemption is the entity with the most knowledge regarding the negative 
aspects of the practice and with the strongest incentive to hide those negative 
realities) is also dangerous
for the vulnerable.  For example, the O Centro decision was decided with no 
consideration whether children are given the drugs, a fact confirmed to me by 
the group's leader in an email exchange, after I wrote critically of the 
decision.   Had there been congressional hearings on the issue, rather than 
federal courts jumping in, we might have learned the realities
of their practices, rather than the spruced-up version presented in court.  


Another recent example of the failure of judicial fact-finding to reach 
informed religious decisions is the hollywood-style polygamy case being 
litigated in Utah, where the court recently defanged the polygamy laws, because 
the facts of the case did not develop the reality of polygamy for most of the 
women and children in polygamous communities.  It was not in the interest of a 
reality show polygamy family to disclose to the court precisely what happens in 
these communities, and the state completely fell down on the job.   






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 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Sat, Dec 28, 2013 4:50 pm
Subject: Courts and lawmaking


I also used to think that RFRA calls for improper judicial lawmaking (though 
not 
unconstitutional lawmaking).  But I then changed my views, for reasons I 
described in more detail in my "Common-Law Model for Religious Exemptions" 
piece, http://www.law.ucla.edu/volokh/relfree.pdf.

Here's the short version:  The problem with the Lochner line of cases isn't 
that 
courts were lawmakers.  Most of American law -- tort law, contract law, 
evidence 
law, criminal law, and more -- was initially made by courts.  (To be sure, they 
were mostly state courts, but federal courts created the federal law of 
evidence 
and civil procedure, developed federal admiralty law, developed and still 
develop criminal law defenses, and so on.)  To this day, this judicial 
lawmaking 
continues.  And sometimes Congress specifically authorizes courts to continue 
engaging in such lawmaking, most prominently in the federal law of evidentiary 
privileges, but also in fair use and some other areas.  The key difference 
between this and Lochner is that courts are entitled to make the law, including 
by developing exceptions from statutory duties (e.g., criminal law defenses, 
testimonial privileges, and the like), but *with the possibility of legislative 
override*.

RFRAs, federal and state, fit well within this mold.  They involve a 
legislature's decision that, while the legislature is happy creating some 
generally applicable obligations, they want to leave it to courts to develop 
certain exceptions from those obligations -- m

Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[hamilton02]

I meant inevitable that groups like the Satanists would start pushing hard 
against the current wave of Christians trying to take the public square back.
Not that they won't get it. ...   The 11th Cir. ruled Judge Roy Moore's 10 
Commandments in the state courthouse unconstitutional.   Federal courts
are largely boxed in on these issues at this point.








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 
http://sol-reform.com





-Original Message-----
From: hamilton02 
To: religionlaw 
Sent: Sun, Dec 8, 2013 9:44 pm
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature


Inevitable.   


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 
http://sol-reform.com





-Original Message-
From: Joel Sogol 
To: Religionlaw 
Sent: Sun, Dec 8, 2013 9:24 pm
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature



Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
 
http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite
 
 
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
 
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts.
 


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Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[hamilton02]

Inevitable.   


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 
http://sol-reform.com





-Original Message-
From: Joel Sogol 
To: Religionlaw 
Sent: Sun, Dec 8, 2013 9:24 pm
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature



Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
 
http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite
 
 
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
 
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts.
 


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

[hamilton02]

With all due respect to this entire thread, how many people have actually read 
the state cases involving the priest-penitent privilege?  There is a level of 
abstraction
to this discussion that indicates to me probably not.  As someone who has 
actively been involved in arguing the issue in court in the last year, I'd 
suggest that the law is
more reticulated and specific. state-by-state, than the speculation going on 
here.  It is state law, which means 50 states plus DC law, and it is a 
privilege that is not constitutionally required,
particularly when the issue is whether the religious confessor or confessee 
engaged in illegal behavior.  




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 
http://sol-reform.com





-Original Message-
From: Christopher Lund 
To: 'Law & Religion issues for Law Academics' 
Sent: Fri, Dec 6, 2013 10:06 am
Subject: RE: The clergy-penitent privilege and burdens on third parties



Again, I’m late—sorry about that.  But honestly people, it’s shocking how many 
posts are written between the hours of 9 p.m. and 7 a.m.  Who can keep up?
 
So this may backtrack, but I’ve been thinking about the earlier posts in this 
thread.  Say there are no secular analogies to the priest-penitent privilege.  
Does that, in itself, justify the conclusion that it is favoritism for 
religion?   
 
I don’t think so, or at least I’m not convinced of that right now.  Some people 
are religious; some people are not.  Some people feel a need to confess and 
receive absolution in return; others do not.  The priest-penitent privilege 
only helps those in the former group.  But that need not be favoritism.  Sure, 
it’s differential treatment, but it might be justified because the people 
aren’t similarly situated in the first place.  (And here this ties in to Greg 
Sisk’s earlier posts.)
 
I think it helps that there are secular analogues, but I think it’s a mistake 
to require the secular analogues to match up perfectly with the religious one.  
I think it’s a mistake because it denies the reasons why we want to accommodate 
religion in the first place: Religion is different than other human needs.  It 
may be analogous to them, but it’s never perfectly analogous; it inevitably 
differs in ways that require tailored treatment.  The equality approach means 
that religious activities never get protection when there’s no exact secular 
parallel to them.  If there’s no exact secular parallel to confession—and of 
course there isn’t!—then confession doesn’t get protected.  More generally, I 
take this to be the central weakness of Smith (even for those who think Smith 
rightly decided).  It is also why—to pick up Sandy’s train of thought 
below—Widmar ends up turning into Bronx Household.
 
In Trammel, the Court goes through all the privileges in a sensible and 
attractive way.  The attorney-client privilege helps you secure legal help; the 
physician privilege helps you secure medical help; later on, the 
psychotherapist privilege will help you secure emotional help; the clergy 
privilege helps you secure spiritual help.  True enough that some don’t believe 
in spiritual help, because they think it’s bs.  But some think psychotherapy is 
bs.  
 
If the priest-penitent privilege is conceptualized the way Sandy phrases it—as 
a “desire [of people] to unburden themselves to sympathetic listeners”—then the 
priest-penitent privilege looks terribly underinclusive.  But that phrases the 
priest-penitent privilege at a high level of generality.  And at that level of 
generality, all the other privileges become terribly underinclusive as well.  
The spousal privilege discriminates against the unmarried and against me if I 
confide in my best friend more than my wife.  The psychotherapist privilege 
discriminates against sympathetic mothers, fathers, siblings, and bartenders.  
(This is one way Justice Scalia goes after the privilege in Redmond.)  
 
There’s also the spectre of discrimination against religion arising if, say, 
psychotherapists got a privilege and clergy didn’t.  But I really think we 
might be better off not always thinking about this in terms of discrimination.  
Religion seems sui generis, and unique things must be treated in unique ways.
 
Best,
Chris
 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 05, 2013 5:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

 
My sense is that I (as someone who is irreligious) would get 
relatively little solace or even wise counsel from speaking to an average 
Catholic priest about my troubles and misdeeds, at least unless I was at least 
contemplating converting to Catholicism.  Unsurprisingly, the priest would 
respond in a way that fits well the beliefs o

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

[hamilton02]

No question.  They can be helped just as believers might not be!   But that is 
separate from whether, as a legal matter, a privilege attaches.


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 
http://sol-reform.com





-Original Message-
From: Steven Jamar 
To: Law Religion & Law List 
Sent: Thu, Dec 5, 2013 10:09 pm
Subject: Re: The clergy-penitent privilege and burdens on third parties


Sandy and Marci,


I agree my conversations were not and should not have been privileged.  But it 
is not the case that non-believers cannot be helped by priests either in a 
priest/pentitent setting or less formally.  


Steve



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



“There are no wrong notes in jazz: only notes in the wrong places.”
Miles Davis


On Dec 5, 2013, at 5:44 PM, Volokh, Eugene  wrote:



I’m sure there are some such situations, perhaps even quite a 
few.  But I imagine there are quite a few situations where the priest would 
quite rightly not give me the advice that works for me given my philosophical 
worldview.  The benefit of the clergy-penitent privilege to the religious is 
that they can generally get such advice, tailored to the particular religious 
belief system they follow.  The irreligious, I think, don’t have that benefit, 
though they might get some second-best option for those situations where their 
worldview overlaps with a clergyman’s.
 
Eugene
 
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfSisk, Gregory C.
Sent: Thursday, December 05, 2013 2:31 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The clergy-penitent privilege and burdens on third parties

 
Actually, I think non-Catholics mostly would be pleasantly surprised, both on 
the receptivity of the priest-confessor and the wisdom of the response.  To be 
sure, there are some misdeeds that are shared in confession that are understood 
to be such solely from the perspective of the Catholic believer (e.g., failed 
to attend mass, took the Lord’s name in vain, etc.), but most of what is shared 
with a priest are the kinds of faults to which all of us are prone and which 
all (or nearly all) of us regard as faults.  And, following the confession, a 
good priest (which is to say, most priests) responds both in religious terms by 
pronouncing absolution and reconciliation with God, but also speaking about 
reconciliation with one’s neighbors and future personal growth.  Indeed, in my 
own experience – and I do not go to confession nearly as often as I should (one 
more thing to confess, I guess) – is that the priest usually engages me in a 
common-sense and real-world dialogue about why I have fallen short, what are 
the obstacles in my path, and what steps I should take to overcome those 
obstacles.  Penance may include prayer (the traditional, “say, ten ‘Our 
Father’s) but more and more often will include steps to compensate for harm to 
others, efforts to assist others in a similar situation, charitable activities, 
etc.
 

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfVolokh, Eugene
Sent: Thursday, December 05, 2013 4:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

 
My sense is that I (as someone who is irreligious) would get 
relatively little solace or even wise counsel from speaking to an average 
Catholic priest about my troubles and misdeeds, at least unless I was at least 
contemplating converting to Catholicism.  Unsurprisingly, the priest would 
respond in a way that fits well the beliefs of Catholics, but not my own.  
(There might be some priests who are inclined to speak to the secular in 
secular philosophical terms, but I assume they aren’t the norm.)
 
Religious people, then, have the ability to speak 
confidentially to those moral advisors whose belief systems they share.  
Secular people do not.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfPaul Horwitz
Sent: Thursday, December 05, 2013 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

 

Is that accurate? It may vary, but I thought the privilege 

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

[hamilton02]

That is now how the courts have read it.


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 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) 

Sent: Thu, Dec 5, 2013 10:17 pm
Subject: The clergy-penitent privilege and burdens on third parties



I don’t know how it is in other states, but Cal. Evid Code 
1030-1034 absolutely covers any “communication made in confidence, in the 
presence of no third person so far as the penitent is aware, to a member of the 
clergy who, in the course of the discipline or practice of the clergy member's 
church, denomination, or organization, is authorized or accustomed to hear 
those communications and, under the discipline or tenets of his or her church, 
denomination, or organization, has a duty to keep those communications secret.” 
 So the question isn’t whether it’s “for salvation or other religious goal” as 
such; rather, it’s whether the clergy member “has a duty to keep those 
communications secret” under his religious denomination’s tenets.
 
Eugene
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, December 05, 2013 6:59 PM
To: religionlaw@lists.ucla.edu
Subject: Re: The clergy-penitent privilege and burdens on third parties
 
Steve-- That may be true in your experience, but it doesn't make those 
discussions "confessional" for purposes of the clergy-penitent privilege.  It 
typically requires a showing that the 

discussion was not counseling, therapy, or simply an exchange of information.  
Rather, it must be for salvation or other religious goal.  

 

Even discussions between co-religionists, however, may not qualify as 
confessions for purposes of the privilege.  For example, a conversation between 
a bishop

and a pedophile priest about his abuse of children and his next placement is 
not a confession, despite the elements of counseling involved.   No privilege 
attaches to such

conversations.

 

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 






___
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messages to others.

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

[hamilton02]

Steve-- That may be true in your experience, but it doesn't make those 
discussions "confessional" for purposes of the clergy-penitent privilege.  It 
typically requires a showing that the
discussion was not counseling, therapy, or simply an exchange of information.  
Rather, it must be for salvation or other religious goal.  


Even discussions between co-religionists, however, may not qualify as 
confessions for purposes of the privilege.  For example, a conversation between 
a bishop
and a pedophile priest about his abuse of children and his next placement is 
not a confession, despite the elements of counseling involved.   No privilege 
attaches to such
conversations.


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 
http://sol-reform.com





-Original Message-
From: Steven Jamar 
To: Law Religion & Law List 
Sent: Thu, Dec 5, 2013 9:39 pm
Subject: Re: The clergy-penitent privilege and burdens on third parties


I disagree with Eugene on this — as a non-religious athiest, I have met many 
ministers and priests with whom I have had excellent conversations, some even 
“confessional” or at least very candid and have been given advice, even by 
priests, which was insightful and helpful and respectful of me.  They did not 
try to get me to do “hail Marys” or whatevers and did not speak to me in 
“religious” speech.  I have dealt with others whose only aim was indeed to 
convert me.





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




"The aim of education must be the training of independently acting and thinking 
individuals who, however, see in the service to the community their highest 
life achievement."



Albert Einstein









On Dec 5, 2013, at 5:16 PM, Volokh, Eugene  wrote:



My sense is that I (as someone who is irreligious) would get 
relatively little solace or even wise counsel from speaking to an average 
Catholic priest about my troubles and misdeeds, at least unless I was at least 
contemplating converting to Catholicism.  Unsurprisingly, the priest would 
respond in a way that fits well the beliefs of Catholics, but not my own.  
(There might be some priests who are inclined to speak to the secular in 
secular philosophical terms, but I assume they aren’t the norm.)
 
Religious people, then, have the ability to speak 
confidentially to those moral advisors whose belief systems they share.  
Secular people do not.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, December 05, 2013 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

 

Is that accurate? It may vary, but I thought the privilege could be claimed for 
any confidential communication made to a clergy member in his/her professional 
capacity as a spiritual advisor. The person seeking that counsel need not 
necessarily be a co-communicant. I don't think this is just hair-splitting. 
It's not analogous to a statement that men as well as women can seek medical 
care for pregnancy. 


On Dec 4, 2013, at 10:56 PM, "Levinson, Sanford V"  
wrote:

Free speech doctrine, for better or worse, presumably protects (almost) 
everyone.  What is distinctive about the “clergy-penitent privilege” is that it 
protects only a particular subset of people, i.e., those who claim some 
religious identity, as against secularists who have the same desire to unburden 
themselves to sympathetic listeners but can’t assume that it is protected in 
the same way.  Aren’t we back to the conundra involving “conscientious 
objection” and the Seeger and Welch cases.  There the Court could adopt Paul 
Tillich and say that secularists, too, have “ultimate concerns” equivalent to 
religious commitments.  Can one imagine a similar move with regard to clergy 
privileges?  I support such cases as Rosenberger (assuming, at least, one 
version of the facts in that case, which may or may not be entirely correct) 
and Widmar v. Vincent on “equality” grounds, i.e., those who are religious 
should not be selected out for worse treatment than those who are secular.  If 
I can use a facility for meetings of my philosophy club, then I think that 
others should be free to use the facility for meetings of the “Good News Club.” 
 But it is telling that we’re talking about a “privilege” that is denied to 
each and every secular person (unless they can afford a shrink, though even 
there the privilege is significantly more constrained than is the case with a 
priest), and “equality” arguments go by the boards. 
 
sandy
 

From: religion

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

[hamilton02]

I apologize for being MIA for this discussion, which interests me a great deal, 
but I am snowed with the last week of classes, a book proposal to be finished, 
and several cases at the same moment.


All I can say for now is that the clergy-penitent privilege is not in fact 
required by the Free Exercise Clause and, therefore, is an accommodation the 
wisdom of which needs to be weighed by a rigorous public policy analysis.  
Also, it is quite different from state to state; some states have exemptions; 
and some states have relatively high barriers to invoking it (California 
actually); and some states don't recognize it at all.  


And it is very bad public policy when the issue involves serious crimes, e.g., 
murder and child sex abuse.  Doug's pointing to the priest that solved the 
problem is the exception that proves the rule.  Frankly, who cares if a 
penitent confesses his crimes to clergy, when what we need to protect the 
vulnerable is for clergy to report crimes to the authorities?  
It has been proven beyond dispute that keeping criminal behavior within a 
religious organization, whether through privileges or intentional secrecy, 
perpetuates the crimes and endangers society.   Thus, I question his general 
defense of the privilege.   


I look forward to catching up with this thread once classes end on Friday.


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 
http://sol-reform.com





-Original Message-
From: Alan Brownstein 
To: Law & Religion issues for Law Academics 
Sent: Wed, Dec 4, 2013 5:07 pm
Subject: RE: The clergy-penitent privilege and burdens on third parties



I wonder if one factor that distinguishes the clergy-penitent privilege from 
some other accommodations of religion that go too far and violate the 
Establishment Clause is that the burden created by this accommodation will be 
shared by persons who are of the same faith as the penitent and the member of 
the clergy to whom he is confiding information. For example, Catholics are as 
likely to be burdened by a Priest’s refusal to testify in a court case as are 
members of other faiths or non-religious persons. If one of the concerns about 
accommodations burdening third parties is that the accommodated religion gets 
the full benefit of the accommodation without having to share any of its costs 
(which are borne entirely by third parties), the clergy-penitent privilege does 
not fall into that category. Conversely, the accommodation for Sabbath 
observers in Thornton benefitted members of religions observing the Sabbath who 
would not bear any of the cost of the accommodation. (Presumably, an employer 
who observed the Sabbath would close his or her business and would not be 
burdened by the challenged statute.)
 
I don’t suggest that this is a controlling factor. But it might be relevant to 
the analysis of these cases.
 
Alan  
 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Tuesday, December 03, 2013 8:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

 
I don’t think that’s right.  First, recall that the employer 
mandate exemption is supposed to be one of at least a few such exemptions 
(grandfathered plans and under-50-person plans being the other ones); fewer 
than the privileges, but not by that much.
 
Second, as I mentioned, the clergy-penitent privilege is 
unusually strong -- in California, as I understand it, it has no exemptions, 
while the others have some pretty big ones (e.g., the doctor-patient privilege 
doesn’t apply at all to criminal cases, Cal. Evid. Code 998, and there are many 
exceptions to the spousal privilege and the lawyer-client privilege).  It is 
also unusually easy to get:  Unlike with doctors, lawyers, psychotherapists, 
there is no requirement of government licensure or extended professional 
training (though of course some but not all religions do require extended 
training as a matter of their own practice).  Perhaps because of this, for many 
people a clergyman is the only person whose sympathetic ear and helpful counsel 
they can get for free, which doubtless makes it easier for the clergy to spread 
their own messages as part of such counsel.
 
In that sense, the closer analogy isn’tWalz but, I would think, 
Texas Monthly.  There too there were doubtless many products that were exempt 
from sales tax (most food items being the classic example in most states).  But 
this wasn’t enough:  “The fact that Texas grants other sales tax exemptions (e. 
g., for sales of food, agricultural items, and property used in the manufacture 
of articles for ultimate sale) for different purposes does not rescue the 
exemption for religious periodicals from invalidation. What is cruci

Contraceptives objected to by claimants in contraception mandate claims

[hamilton02]

For those interested, the following is what I have been able to figure out with 
respect to what medications
each of the challengers to the contraception mandate object to.  Korte's 
objections are the broadest.
Hobby Lobby and Conestoga Woods' objections are medications solely for females. 
 


Hobby Lobby (10th Cir), cert granted
Plan B
Ella
IUDs


Conestoga Wood (3d Cir), cert granted
Plan B
Ella


Korte (7th Cir)
Plan B
Ella
"All FDA-approved contraceptive methods, sterilization procedures, and patient 
education and counseling related to 
such procedures.”








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 
http://sol-reform.com


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

The WIs bill was never passed to my knowledge, but if it went through under the 
radar, I would be interested.  
Conn did not include the term in one of the earliest bills, but the Conn 
Supreme Court read it in.  To my knowledge, only
KY passed such a bill, and only over the Governor's veto.


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 
http://sol-reform.com





-Original Message-
From: Saperstein, David 
To: Law & Religion issues for Law Academics 
Cc: religionlaw 
Sent: Mon, Dec 2, 2013 10:39 am
Subject: Re: Letter of 16 law professors in support of removing "substantial"   
as modifier of "burden" in state RFRAs



Just FY (forgive me if I missed an earlier reference)I believe there is 
such a bill in Wisconsin as well ?  

Sent from my iPhone

On Dec 2, 2013, at 10:18 AM, "hamilto...@aol.com"  wrote:



Thanks, Doug.  The letter in support of the new TRFRA amendment bill, which 
would have omitted "substantial" as a modifier, does not mention the removal of 
"substantial," but is in support of the bill.  


 If there is anyone who signed it who opposes removal of "substantial," please 
let me know.  Otherwise, I will assume all
signatories have endorsed the removal of "substantial" as a modifier for 
"burden."  No need to respond if you support the bill as worded.


Thanks all


  


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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
hamilton02 
Sent: Sun, Dec 1, 2013 11:37 am
Subject: Re: Letter of 16 law professors in support of removing "substantial" 
as modifier of "burden" in state RFRAs


The presence or absence of the word "substantial" was briefly addressed in a 
follow-up letter here:

http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf

I defended the word's omission. I also suggested that the Committee add it if 
they thought it mattered. 

My apologies for the delay. There was an initial miscommunication with our tech 
people, and by the time they got this posted, I was caught up in Town of Greece 
and completely forgot to go back to this.

On Sun, 1 Dec 2013 11:00:33 -0500 (EST)
 hamilto...@aol.com wrote:
>Thanks Marty!  
>
>
>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 
>http://sol-reform.com
>
>
>
>
>
>-Original Message-
>From: Marty Lederman 
>To: Law & Religion issues for Law Academics 
>Sent: Sun, Dec 1, 2013 9:44 am
>Subject: Re: Letter of 16 law professors in support of removing "substantial" 
as modifier of "burden" in state RFRAs
>
>
>I assume this is the letter, although it does not specifically address the 
removal of "substantial":
>
>http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf
>
>
>
>
>On Sun, Dec 1, 2013 at 9:03 AM,   wrote:
>
>When a new TRFRA was introduced in Texas earlier this year, I was told that 
there was a letter submitted signed by approximately 16 law professors
>who supported the removal of "substantial" from the typical RFRA analysis.   
Doug had said on this list that he would send it to me several months ago, but
>I have never received it.   I assume several on this list signed it.  Could 
someone please forward it to me?  It is, essentially, a public document, having 
been distributed
>to Texas legislators.
>
>
>KY actually did pass such a law so I assume this is a new trend.   I am 
>hearing 
from many civil rights groups who are deeply concerned about such a law, and I 
would like
>to explain to them the reasoning behing making a de minimis burden the trigger 
for strict scrutiny.
>
>
>Thanks--  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 
>http://sol-reform.com
>
>
>
>
>___
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private. 
> 
Anyone can subscribe to the list and read messages that are posted; people can 
read t

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

Thanks, Doug.  The letter in support of the new TRFRA amendment bill, which 
would have omitted "substantial" as a modifier, does not mention the removal of 
"substantial," but is in support of the bill.  


 If there is anyone who signed it who opposes removal of "substantial," please 
let me know.  Otherwise, I will assume all
signatories have endorsed the removal of "substantial" as a modifier for 
"burden."  No need to respond if you support the bill as worded.


Thanks all


  


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 
http://sol-reform.com





-Original Message-
From: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
hamilton02 
Sent: Sun, Dec 1, 2013 11:37 am
Subject: Re: Letter of 16 law professors in support of removing "substantial"   
as modifier of "burden" in state RFRAs


The presence or absence of the word "substantial" was briefly addressed in a 
follow-up letter here:

http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf

I defended the word's omission. I also suggested that the Committee add it if 
they thought it mattered. 

My apologies for the delay. There was an initial miscommunication with our tech 
people, and by the time they got this posted, I was caught up in Town of Greece 
and completely forgot to go back to this.

On Sun, 1 Dec 2013 11:00:33 -0500 (EST)
 hamilto...@aol.com wrote:
>Thanks Marty!  
>
>
>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 
>http://sol-reform.com
>
>
>
>
>
>-Original Message-
>From: Marty Lederman 
>To: Law & Religion issues for Law Academics 
>Sent: Sun, Dec 1, 2013 9:44 am
>Subject: Re: Letter of 16 law professors in support of removing "substantial" 
as modifier of "burden" in state RFRAs
>
>
>I assume this is the letter, although it does not specifically address the 
removal of "substantial":
>
>http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf
>
>
>
>
>On Sun, Dec 1, 2013 at 9:03 AM,   wrote:
>
>When a new TRFRA was introduced in Texas earlier this year, I was told that 
there was a letter submitted signed by approximately 16 law professors
>who supported the removal of "substantial" from the typical RFRA analysis.   
Doug had said on this list that he would send it to me several months ago, but
>I have never received it.   I assume several on this list signed it.  Could 
someone please forward it to me?  It is, essentially, a public document, having 
been distributed
>to Texas legislators.
>
>
>KY actually did pass such a law so I assume this is a new trend.   I am 
>hearing 
from many civil rights groups who are deeply concerned about such a law, and I 
would like
>to explain to them the reasoning behing making a de minimis burden the trigger 
for strict scrutiny.
>
>
>Thanks--  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 
>http://sol-reform.com
>
>
>
>
>___
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private. 
> 
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
>
>
>
>
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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: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

Thanks Marty!  


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 
http://sol-reform.com





-Original Message-
From: Marty Lederman 
To: Law & Religion issues for Law Academics 
Sent: Sun, Dec 1, 2013 9:44 am
Subject: Re: Letter of 16 law professors in support of removing "substantial" 
as modifier of "burden" in state RFRAs


I assume this is the letter, although it does not specifically address the 
removal of "substantial":

http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf




On Sun, Dec 1, 2013 at 9:03 AM,   wrote:

When a new TRFRA was introduced in Texas earlier this year, I was told that 
there was a letter submitted signed by approximately 16 law professors
who supported the removal of "substantial" from the typical RFRA analysis.   
Doug had said on this list that he would send it to me several months ago, but
I have never received it.   I assume several on this list signed it.  Could 
someone please forward it to me?  It is, essentially, a public document, having 
been distributed
to Texas legislators.


KY actually did pass such a law so I assume this is a new trend.   I am hearing 
from many civil rights groups who are deeply concerned about such a law, and I 
would like
to explain to them the reasoning behing making a de minimis burden the trigger 
for strict scrutiny.


Thanks--  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 
http://sol-reform.com




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Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

[hamilton02]

When a new TRFRA was introduced in Texas earlier this year, I was told that 
there was a letter submitted signed by approximately 16 law professors
who supported the removal of "substantial" from the typical RFRA analysis.   
Doug had said on this list that he would send it to me several months ago, but
I have never received it.   I assume several on this list signed it.  Could 
someone please forward it to me?  It is, essentially, a public document, having 
been distributed
to Texas legislators.


KY actually did pass such a law so I assume this is a new trend.   I am hearing 
from many civil rights groups who are deeply concerned about such a law, and I 
would like
to explain to them the reasoning behing making a de minimis burden the trigger 
for strict scrutiny.


Thanks--  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 
http://sol-reform.com



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Discrimination under Title VII and RFRA (was "Patently Frivolous")

[hamilton02]

The Court has not drawn such a line, in part because it hasn't thought about it 
carefully.  Citizens United brings the possibilities to the forefront.


In any event, the for-profit/nonprofit difference makes a meaningful difference 
in this case, because it is in the ACA's women's reproductive care mandate,
and it is in Title VII, which protects women.All of my postings have been 
in this arena, and given the pressures of this holiday week, I didn't want to 
lose
track of that focus with the lunch hypo Eugene suggested.  It is undoubtedly 
interesting, but I don't think very illuminating given there is no federal 
civil rights
or constitutional right to lunch or food generally.  I noticed on NCR that 
there is some talk by the bishops in light of the Pope's welcome focus
on the poor, about the fundamental right to food, but that takes us far afield 
from Hobby Lobby with all due respect to Eugene.


I  had posed some on-point hypotheticals I am deeply interested in knowing 
folks' views on, yet it was lost in the fascinating topics up for discussion.  


Here are a few modifications and additions to those.


1.  Can employers successfully invoke RFRA to follow their religious beliefs to 
impose headscarves on every woman in a for-profit corporation of over 50 
employees (Mandate +
Title VII at play)?


2.  Can employers successfully invoke RFRA to follow their religious beliefs 
against contraception to bar women from using contraception to stop a woman's 
constant
bleeding due to hormone imablances?   Or to halt monthly debilitating cramps?


3.  Can employers successfully invoke RFRA to follow their religious beliefs 
against contraception to bar families from providing oral contraceptives to 
girls with
disfiguring acne triggered by hormonal shifts?


4.  Can employers successfully invoke RFRA to follow their religious beliefs 
against women working outside the home, and 
therefore scale salaries to deincentivize women and drive them from the 
workplace. 


5.  Can an employer successfully invoke RFRA to follow their religious beliefs 
and fire any female employee who obtains an abortion  (which is consistent w 
her religious beliefs)?


 All thoughts on these hypotheticals would be greatly appreciated as we work 
through this important issue for religious business owners and women.


Happy Thanksgiving all--


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 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Wed, Nov 27, 2013 12:20 am
Subject: RE: "Patently Frivolous" and discrimination



But why would that turn a serious argument into a “patently 
frivolous” one?  Both nonprofits and for-profits are engaged in monetary 
transactions.  (U.S. v. Lee talked of people “enter[ing] into commercial 
activity as a matter of choice,” but education, as we all know, is a commercial 
activity whether carried on by non-profit institutions or for-profit ones.)  
Both choose to participate in such transactions.  When either discriminates, 
this has an effect on third parties whom the law is trying to protect.  
 
Also, as Chip pointed out, Braunfeld v. Brown involved 
for-profit businesses, and no-one on the Court thought a free exercise claim 
brought by them was patently frivolous.  And I should also add that the 
unemployment compensation claimants were also engaged in the commercial 
marketplace, selling their own labor for profit.  The Court has never drawn a 
for-profit vs. nonprofit line when it comes to religious freedom claims, and 
though Lee hinted at a marketplace transaction vs. other conduct line, the 
Court hasn’t generally followed such a line (and in any event Lee ultimately 
applied the strict scrutiny test, rather than concluding that the marketplace 
transactions kept that test from being applicable).  Likewise, to my knowledge 
lower courts have not drawn such a line.
 
Eugene
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, November 26, 2013 6:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: "Patently Frivolous" and discrimination
 

But Bob Jones University is a nonprofit, which the Supreme Court noted at the 
beginning of its opinion, and we're talking about the Court's treatment of 
religious exemption claims by for-profit businesses. 

 

 

On Tue, Nov 26, 2013 at 4:59 PM, Volokh, Eugene  wrote:

I appreciate the point, but when the Court confronted the issue 
more squarely, in Bob Jones, it didn’t treat the university’s claim as patently 
frivolous, but did apply strict scrutiny (though upholding the law, of course). 
 Likewise, the 1990s lower court cases involving marital status discrimination 
in housing, some of whic

Re: Contraception Mandate

[hamilton02]

Tom--


The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or 
gender).   


Amos is irrelevant as a religious organization has an exemption that a 
for-profit corporation does not have under 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 
http://sol-reform.com





-Original Message-
From: Berg, Thomas C. 
To: religionlaw 
Sent: Tue, Nov 26, 2013 5:27 pm
Subject: RE: Contraception Mandate



Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:
 
1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something "off the wall" that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the "it's 
radical" pitch seemed simply to be preaching to the choir.
 
2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why wecan countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience—a unique limit on such claims and not on others—isn’t that a reason 
to bemore confident that in this context society would reach an accommodation 
that takes both important interests seriously?
 
  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, "though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms."  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the “encroachment on 
religious freedom”—an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
"effect on third parties" is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?
 
  Second, you quote Thornton v. Caldor's statement that “[t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities” 
(a principle that you say "matters here in a particularly powerful way").  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees “must conform their conduct to his own religious necessities.”  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)
 
There are significant questions here about the baselines from which we 
determine or measure “effects on others”: who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah’s Witness example that Marci raises, for example).  But I 
don’t think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-
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   

Re: Contraception Mandate

[hamilton02]

I'll wait for others to weigh in on the first, but with respect to the second, 


I thought the argument was that the employer can't be part of a system that 
involves acts by others that violate his religious beliefs.  
How does the cheap supplementary plan for transfusions solve the Jehovahs 
Witness's being part of a system that 
involves acts that violate his religious beliefs?  Is Hobby Lobby willing to 
provide a supplementary, inexpensive plan for contraception?  




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 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate




  I’m not Brad, but I thought I’d put my two cents’ worth in:
 
Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender, 

can tailor their salary and benefit plans according to religious beliefs and 
gender?   
 
  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

 

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  
 
  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions). 
 
  Eugene



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Re: Contraception Mandate

[hamilton02]

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?   


Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  




Thanks 


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 
http://sol-reform.com





-Original Message-
From: Brad Pardee 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Nov 26, 2013 4:57 pm
Subject: RE: Contraception Mandate


There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.

Brad Pardee

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 

Nelson Tebbe
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Re: RLUIPA and hair length in prison

[hamilton02]

I am on deadline here, so can't really pursue this, but I have to say that I do 
find it troubling that the fact question of penological interest is now being 
decided based on what another state does.   It appears to me that RLUIPA has 
nationalized state prison system administration.  Those representing the 
prisoners I'm sure find no problem with this as a result, but for me, the 
constitutional structural issues call out for more nuanced treatment.  The 
Cutter court essentially says that the federal courts are to take penological 
interest seriously, as it is advanced by the administrators.  Every prison 
system has its own issues and difficulties, ranging from age and quality of 
prisons, to types of prisoners, to types of gangs and terrorists behind bars, 
to state budgets.  To say that if one (or several) prison systems has a 
permissive hair length policy means that every other system now bears a heavier 
burden on showing its penological interests strikes me as a large incursion 
into state authority over prisons.  It makes me question Congress's power to 
enact RLUIPA on the prison side more than I have before.  The operation of 
state prisons is part of the sovereign capacity of the state, and RLUIPA does 
not require those prisons to follow constitutional guarantees, which are either 
much more lax (Smith) or significantly more lax (Turner v. Safley) than 
RLUIPA's strict scrutiny, but rather imposes a much heavier burden.


Apologies for my inability to jump back in very quickly, but will try to as my 
schedule permits this week.


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 
http://sol-reform.com





-Original Message-
From: Dawinder S. Sidhu 
To: Law & Religion issues for Law Academics 
Sent: Mon, Aug 5, 2013 2:02 pm
Subject: Re: RLUIPA and hair length in prison



Please forgive me for being late to the party here -- I drafted an amicus brief 
on behalf of the National Congress of American Indians in this case.  Our 
argument was quite simple: that Alabama could restrict the right of the 
prisoners to grow their hair in accordance with their religious principles 
provided that they had individualized evidence that the prisoners in question 
gave rise to the penological concerns (e.g., need to ensure proper hygiene, 
need for easy identification in case of escape) justifying the restrictions.  

We pointed out how most prison systems, including the Federal Bureau of 
Prisons, do not have such restrictions, or make exceptions for medical and/or 
religious reasons, which we thought put the onus on Alabama to explain why the 
restrictions were necessary despite having penological interests identical to 
those of other jurisdictions.  That is precisely what the Ninth Circuit did in 
Warsoldier, asking why prison systems with permissive grooming policies "are 
able to meet their indistinguishable interests without infringing on their 
inmates' right to freely exercise their religious beliefs."   The Justice 
Department has made this point as well.  The Eleventh Circuit dismissed other 
jurisdictions' practices as effectively irrelevant, and found that the 
restrictions could be sustained by the general assertions of the prison 
authorities that the restrictions were necessary.   


In the end, I'm disappointed in, but not surprised by, the result in this case. 
 The Eleventh Circuit precedent is quite clear in this context, and the panel 
here was unwilling to depart from the court's prior rulings despite what is 
taking place elsewhere.  Perhaps the Supreme Court may be interested in 
weighing in: there is arguably tension between Warsoldier and Knight, the Court 
was uncomfortable with deference to institutions where heightened review is 
required (e.g., Fisher; though schools are different than prisons), and the 
Justice Department has been actively involved in these cases, perhaps 
highlighting their importance. 

 

Best,
Dave

--
Dawinder "Dave" S. Sidhu
* Selected research: http://www.ssrn.com/Author_id=688955



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Re: Contraception mandate

[hamilton02]

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.


Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.  
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.   
What is the missing piece that explains how Doug and Marc have explained the 
history?




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 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate



Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.
 
But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.
 
And I agree that we should discuss facts on the listserv without stooping to 
namecalling.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

 
Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts 

on the listserv without having to stoop to such namecalling.

 

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 
http://sol-reform.com



 

-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 






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messages to others.

Re: Contraception mandate

[hamilton02]

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.


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 
http://sol-reform.com





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate


Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton"  wrote:



I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.


Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start. 

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 






On Aug 1, 2013, at 5:39 PM, James Oleske  wrote:




Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.


But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).





On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock  wrote:


Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”
 

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 Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

 
Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.
 
Supporters didnot say that for-profit businesses would not have a RLPA defense. 
This whole issue with respect to RLPA was triggered by a series of cases about 
for-profit landlords and unmarried opposite-sex couples, especiallyThomas v. 
Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later 
vacated on other grounds, but the opinion is still on Westlaw.
 
If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.
 
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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate
 


[snip]
 


One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA a

Re: Contraception mandate

[hamilton02]

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have "chairs").  The two sides were not in the same 
rooms at the same time, obviously.  


Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.


Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?


I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be "compelling interests," 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.






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 
http://sol-reform.com





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:29 pm
Subject: Re: Contraception mandate


Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together  when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
 One can disagree with that position, but it is flat out wrong to accuse Doug 
of misleading anyone. 
Marc Stern


 

From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.


I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my Justia.com 
column on the Hobby Lobby decision, had the members been informed that RFRA 
would open doors for Wal-Mart to get around laws, RFRA would have taken a very 
different path.


Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.   


Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.  


All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.


Marci




Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 






On Aug 1, 2013, at 2:35 PM, James Oleske  wrote:




A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.


First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words: 



"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"



Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about relig

Re: Marriage -- the Alito dissent

[hamilton02]

I am not sure what Paul's reservation is with the concept that for First 
Amendment purposes, a belief is the belief being held right now by the 
believer, regardless of tradition or history.  I had thought the courts had 
settled on that concept, and its adjunct theory, which is that no court
can tell a religious believer that their belief is not religious or that it is 
not true.  



In any event, the opposition to same sex marriage has to be treated as 
sectarian, because it is.  There are vanishingly few conservative Burkeans on 
this issue and an overwhelming majority of religious believers.  While we can 
conjure up the secular monogamist, or two, this is a religious movement against 
gay marriage, as the history of Prop 8 so ably demonstrates.  Not to mention 
that the criticism of the Court's decisions this week was loudest from Cardinal 
Dolan and Tony Perkins, among other religious leaders.   


It would be helpful for political scientists to add up the dollars spent on 
lobbying and by whom against gay marriage, because I suspect that would 
underscore my point.


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 
http://sol-reform.com





-Original Message-
From: Paul Horwitz 
To: Marci Hamilton 
Cc: Law & Religion issues for Law Academics ; 
conlawprof 
Sent: Sat, Jun 29, 2013 6:14 pm
Subject: Re: Marriage -- the Alito dissent


I'm not sure that the second sentence of Marci's comment below is correct for 
all constitutional purposes. But I think the first part of the first sentence 
can be true. A standard part of the story of religion and science as dual 
magisteria is that the domain of factual claims made by religion tends to 
recede 
as the domain of scientific explanatory claims expands. So a factual claim that 
was once generally accepted, such as claims about the origin of life or the age 
of the universe, can effectively move from non-sectarian acceptance to solely 
sectarian acceptance. Claims about male-female complementarity *might* fall 
into 
that category.

That said, I don't think that renders all anti-SSM claims impermissibly 
sectarian. A Burkean conservative might plausibly believe that changing the 
scope of marriage in the face of what he believes to be a well-established and 
well-proven tradition is unwise, and that resistance to this change is prudent 
and rational. Or one might believe as a factual matter, rightly or wrongly (the 
latter, in my view), that children and society fare better under heterosexual 
family arrangements. These views might be wrong, but I don't see why they must 
be treated as sectarian, if that is even constitutionally relevant, just 
because 
the outcome they suggest is consistent with a prominent sectarian view.

Paul Horwitz 

Sent from my iPhone 

On Jun 29, 2013, at 2:18 PM, "Marci Hamilton"  wrote:

> Of course history (people) can make sectarian views nonsectarian and vice 
versa.   A religious belief under the Constitution is what the religious 
believer says it is right now,
> not what history said it was or should be.   Alito is following Vatican 
(religious) dogma.   In current US society, the push against gay marriage is 
based on religious believers who believe it is sinful for same sex couples to 
marry.  That is the discourse regardless of the source of their current beliefs.
> 
> Marci
> 
> 

 


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To post, send message to Religionlaw@lists.ucla.edu
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Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[hamilton02]

Actually, Doug, you might want to reread Thomas. He worked in the roll foundry, 
which closed.
So he then asked to work in any other department.  All of those departments 
involved parts for weapons.  He could not do that he said,
But he said that he would have been willing to create materials that then later 
were built into weapons.


In the opinion's  words:


He testified that he could, in good conscience, engage indirectly in the 
production of materials that might be used ultimately to fabricate arms -- for 
example, as an employee of a raw material supplier or of a roll foundry.


So it is not nearly the complicity-with-evil case others have said it is.  
Thomas was objecting to having to work directly on weapons parts, not doing 
something that might ultimately produce something he disagrees with.  I think 
Thomas could have sent his money into a fungible stream...  The HHS regs 
situation is different.  The employer has no belief against paying for health 
care.  What he objects to is sterilization and contraception.  He says he can't 
give money so that someone else might use it to do something he disagrees with. 
 Yet, any use of the fungible funds is made completely independently of the 
employer -- under patient-doctor confidentiality and by a woman.   On her side 
is Griswold, Title VII on gender discrimination, and doctor-patient 
confidentiality.




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: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
hamilton02 
Sent: Thu, Oct 4, 2012 12:09 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA  
Mandate--interpreting "substantial burden"


Marci, you are arbitarily singling out different steps in a parallel sequence 
of 
events. 

Thomas was asked to help assemble tank turrets. Others would put the turrets 
into tanks. Still others, maybe, would use the tanks to kill people. Or maybe 
not. 

The bishops' view is that they are being asked to contract for and pay for 
policies that cover contraception and very early abortifacients. That is what 
they object to, whether or not anything happens thereafter. Other people will 
use those policies to pay for medical care. Maybe some of them will pay for 
contraception or emergency contraception. Or maybe not, although here the odds 
seem higher than with the tanks. But it doesn't matter. The objection is to 
contracting for and paying for the coverage.


On Thu, 4 Oct 2012 11:44:49 -0400 (EDT)
 hamilto...@aol.com wrote:
>First, let me applaud Marty's memory.  I am certain I could not tell you what 
was discussed on this list in 1999!  I'm not sure I was even reading it then.
>
>
>In any event, this is not the Thomas case.  In Thomas, the objection was based 
on the believer avoiding taking action that he would find in conflict with his 
faith.
>He could not, consistent with his faith, participate in the manufacture of 
materials used in arms.  In this case, the alleged violation is in the 
financial 
support of a system
>in which others engage in acts that conflict with his religion.  That is a 
>step 
farther.  That is what makes me most uncomfortable about this (along with the 
fact it singles out women's health).
>
>
>I understand that the argument is that the payment into the fund itself is a 
burden, but that cannot be a winning argument after Lee, or after Zelman or the 
4-person plurality in Mitchell v. Helms, either.  Under the Religion Clauses, 
money is fungible, and the entity/person sending money into a stream no longer 
has power/say/responsibility for how the money is used by independent actors 
who 
pluck it from that stream.   So we are back to the question whether there is a 
free exercise right for a for-profit company to deter employees from engaging 
in 
acts that conflict with the employer's religion.  
>
>
>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
>
>
>
>

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[hamilton02]

First, let me applaud Marty's memory.  I am certain I could not tell you what 
was discussed on this list in 1999!  I'm not sure I was even reading it then.


In any event, this is not the Thomas case.  In Thomas, the objection was based 
on the believer avoiding taking action that he would find in conflict with his 
faith.
He could not, consistent with his faith, participate in the manufacture of 
materials used in arms.  In this case, the alleged violation is in the 
financial support of a system
in which others engage in acts that conflict with his religion.  That is a step 
farther.  That is what makes me most uncomfortable about this (along with the 
fact it singles out women's health).


I understand that the argument is that the payment into the fund itself is a 
burden, but that cannot be a winning argument after Lee, or after Zelman or the 
4-person plurality in Mitchell v. Helms, either.  Under the Religion Clauses, 
money is fungible, and the entity/person sending money into a stream no longer 
has power/say/responsibility for how the money is used by independent actors 
who pluck it from that stream.   So we are back to the question whether there 
is a free exercise right for a for-profit company to deter employees from 
engaging in acts that conflict with the employer's religion.  


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: Marty Lederman 
To: Law & Religion issues for Law Academics 
Sent: Thu, Oct 4, 2012 11:25 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"


Marci:  As this thread has demonstrated, I certainly have concerns about the 
nature of the "cooperation with evil" theory of substantial burden being 
asserted here.  But the theory is anything but new.  It is also not based on 
the notion that others' use of contraception would violate the employers' 
religious liberty--indeed, I think most of these employers likely assume that 
their employees will continue to use contraception regularly in any event, 
albeit at a greater cost to the employees.

The claim here is that the employer's involvement in allegedly facilitating the 
employees' conduct implicates the employers themselves in wrongdoing.  As I've 
explained, I think this theory raises serious, difficult questions.  But it's 
hardly novel.  It was the theory in Thomas (he wasn't the one using the tanks 
to shot enemy soldiers).  It's the theory we discussed on this list back in 
1999-2000, when confronted by cases of landlords who didn't want to rent to 
unmarrieds.  It's the theory raised in the Posner and related cases about 
police protection of abortion facilities.  And it's the theory underlying the 
current disputes about proprietors -- B&Bs, florists, photographers, caterers, 
etc. -- who wish to discriminate against gay couples. 

Indeed, what makes it interesting and important is precisely that, post-Thomas, 
so many different religious liberty claims take this form.


On Thu, Oct 4, 2012 at 11:08 AM,   wrote:

Actually, this free exercise theory is new.  It is the first time that a 
religious believer has made a free exercise claim because they
don't want others (with different beliefs) to potentially violate the 
believer's religious rules for conduct.  The company owner and family won't use 
the plan for women's health benefits involving contraception or sterilization, 
and are not required to.  The owner will not even know if the plan ever covers 
these services because
of the doctor-patient privilege.  It is a potential event, over which the owner 
has no control or right to control and will have no knowledge, and the conduct 
is the employee's conduct, not the employer's.  The purported violation is that 
a for-profit company, which is not permitted to discriminate on the basis of 
religion, must pay health insurance that includes coverage for independent acts 
obtained solely for health reasons that differ from the employer's religious 
beliefs.  


The approach taken in the HHS regs also is not new.  States have routinely 
required insurance companies to include in their plans various services, e.g., 
Pap smears, and physicals, etc.  That means that the employer buying a plan can 
only buy plans that include the mandatory coverage.  The HHS regs follow this 
model of including the health protection that reduces health costs and 
increases health -- particularly for women, whose health issues historically 
have seemed to be easier to exclude than men's.  So the approach taken in the 
regs is actually not a new approach to keeping health care costs down and 
achieving the greatest health for the largest number.


What is new is this attempt to avoid cost and health-driven decisions about 
coverage by interposing personal religious requirements on others.  It is a 
weaker
cla

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

[hamilton02]

Actually, this free exercise theory is new.  It is the first time that a 
religious believer has made a free exercise claim because they
don't want others (with different beliefs) to potentially violate the 
believer's religious rules for conduct.  The company owner and family won't use 
the plan for women's health benefits involving contraception or sterilization, 
and are not required to.  The owner will not even know if the plan ever covers 
these services because
of the doctor-patient privilege.  It is a potential event, over which the owner 
has no control or right to control and will have no knowledge, and the conduct 
is the employee's conduct, not the employer's.  The purported violation is that 
a for-profit company, which is not permitted to discriminate on the basis of 
religion, must pay health insurance that includes coverage for independent acts 
obtained solely for health reasons that differ from the employer's religious 
beliefs.  


The approach taken in the HHS regs also is not new.  States have routinely 
required insurance companies to include in their plans various services, e.g., 
Pap smears, and physicals, etc.  That means that the employer buying a plan can 
only buy plans that include the mandatory coverage.  The HHS regs follow this 
model of including the health protection that reduces health costs and 
increases health -- particularly for women, whose health issues historically 
have seemed to be easier to exclude than men's.  So the approach taken in the 
regs is actually not a new approach to keeping health care costs down and 
achieving the greatest health for the largest number.


What is new is this attempt to avoid cost and health-driven decisions about 
coverage by interposing personal religious requirements on others.  It is a 
weaker
claim than any yet brought against government regulations on free exercise 
grounds.  






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: Gaubatz, Derek 
To: religionlaw 
Sent: Wed, Oct 3, 2012 2:47 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"



Dear Marci,
 
The substantial burden theory here is not new, it’s merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.  
 
I’m not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can’t use the machinery of the state to compel the 
believing employer to put up the money to pay for them.
 
Blessings,
Derek
 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

 
The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system 

so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is t

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

[hamilton02]

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.  


>From a philosophical perspective, it is the classic Nietzschean will to power. 
> That doesn't mean the belief is not sincere, but rather that the asserted 
>beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.


On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:


The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.




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: Marty Lederman 
To: Law & Religion issues for Law Academics 
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"


Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contraception.  
Seems to me that, too, would significantly undermine the substantial burden 
claim, and not because of any governmental disagreement on the nature of 
religious obligations.


On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock  wrote:


The burden on religion in these cases is not the amount of money. It is 
arranging for, contracting for, and paying for services the employer believes 
to be deeply immoral. From the believer’s perspective, it doesn’t matter 
whether it costs money or saves money.

 

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 b...@jmcenter.org
Sent: Tuesday, October 02, 2012 11:36 PM

To: Law & Religion issues for Law Academics

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


 

Doug, 


  

Would your view -- expressed in the third paragraph of your post -- be 
different if the HHS mandated contraceptive coverage, preventive care, etc. 
actually saved the employer money rather than cost the employer money? Would 
saving money (i.e., reduced insurance premium) be a substantial burden even if 
the saving resulted a government mandate to provide health care that the 
employer found religiously objectionable? 

  

Bob Ritter 

  

Jefferson Madison Center for Religious Liberty 

A Project of the Law Office of Robert V. Ritter 

Falls Church, VA 22042 

703-533-0236 

  


On October 1, 2012 at 8:01 PM Douglas Laycock  wrote: 
> My post on the analogy between exemption from military service and exemption 
> from abortion was addressed to Marci's claim that there should be nothing 
> special about objection to abortion. That is a much broader claim than just 
> the ACA issue. And there are people in the pro-choice movement pushing 
> against conscience protections for medical providers. 
> 
> As to ACA, I do not think there is a burden when an employer pays salary, and 
> the employee then uses the money for purposes the employer considers immoral. 
> The salary payments could have been used for anything. 
> 
> I think the burden on the taxpayer who pays taxes, knowing that the 
> government will use the money for purposes the taxpayer considers immoral, is 
> highly attenuated, and uniformly outweighed by the government's compelling 
> interest in paying taxes. 
> 
> The ACA looks different to those objecting, and plausibly so, because the 
> money is not paid to the employ

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

[hamilton02]

Doug--Are you suggesting that Bowen would have come down differently, under the 
substantial burden analysis, depending on whether they, as the case started,
had to apply for a number, or, as the trial indicated, they had to live with 
one?   Why?


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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Oct 2, 2012 12:50 pm
Subject: FW: Court Rejects Religious LibertyChallenges  To  ACA 
Mandate--interpreting "substantial burden"



In Bowen, they discovered at trial that she already had a social security 
number By the time the case got to the Supreme Court, the claim was that the 
government could not use that social security number to maintain its records on 
the child.  Plaintiffs said that the government’s use of the number would sap 
the child’s spirit.
 
In Lyng, the government proposed to make noise that would disrupt religious 
mediation.
 
Neither case was about regulating the  religious believer’s behavior.  The ACA 
cases are about regulating the believer’s behavior.
 
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 hamilto...@aol.com
Sent: Tuesday, October 02, 2012 12:12 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

 
Doug--The government in Bowen required the applicant to obtain a social 
security number to obtain benefits.   They did not want to obtain it, because 
it would sacrifice their child's soul.  Looks like forced "complicity with evil 
to me."   How does that work under your distinction? 


I have to say it looks like a distinction without a difference to me.

 

Lyng is certainly relevant re: whether the subjective sense of the burden is 
relevant.  It is not.

 

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

 



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

[hamilton02]

Derek--   You don't mention, though, that the legislative history of RLUIPA is 
explicit that "substantial burden" means what it meant in the free exercise 
doctrine.
You can't use the definition of "religious exercise" (which I view as 
reflecting Smith's dictum on the same) to alter the definition of "substantial."


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: Gaubatz, Derek 
To: Religionlaw 
Sent: Tue, Oct 2, 2012 12:42 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"



Dear Chip,
 
Thomas is not mentioned in the findings of RFRA, but it’s holding is certainly 
incorporated into the definition of religious exercise in RFRA (and RLUIPA).
 In fact, it seems to me that much of the discussion on this list and in the 
O’Brien case of whether there is a substantial burden in these 
contraception/abortifacient cases has failed to focus in on RFRA’s definition 
of religious exercise.   Obviously, it is an important threshold issue to 
identify the precise religious exercise at issue before determining whether 
there is a substantial burden on that religious exercise.
 
RFRA defines religious exercise (consistent with Thomas) as “any 
exercise of religion, whether or not compelled by, or central to, a system of 
religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5
 
There are three noteworthy things about this definition.   First, like the text 
of the Free Exercise Clause itself, which does not limit the range or types of 
religious exercise eligible for protection, the Act's definition makes clear 
that “any” discrete instance of religious exercise is covered by the Act. 
 
Second, not only does RFRA’s definition of “religious exercise” provide that 
“any” religious exercise is protected, it also makes explicit that this 
protection is not limited to practices that are compelled by the individual's 
religion. Thus, religious exercise that some might claim is discretionary on 
the part of the believer--e.g., a Catholic's desire to pray the rosary, a 
Muslim's desire to utilize prayer oils during daily prayers, or a Jewish 
believer's decision to wear a yarmulke--is also protected and may not be 
substantially burdened.   This aversion to adopting a requirement that 
religious exercise be mandated by a faith in order to be protected flows 
directly from the Supreme Court's holding in Thomas that “[c]ourts are not 
arbiters of scriptural interpretation.” To require a court to inquire into 
whether a particular religious practice is compelled by the believer's faith is 
to force a court into a role “not within the judicial function and judicial 
competence,” because it necessitates a judgment as to what a religion requires 
of its believers. If compulsion were a prerequisite, courts would soon be in 
the theological thicket as the state would seek to defeat a believer's claim of 
substantial burden by introducing testimony of another member of the believer's 
faith who opines that the particular practice is not mandated.
 
Finally, RFRA’s definition of religious exercise also makes explicit that 
consideration of whether the religious exercise at issue in the case is 
“central” (or fundamental) to a particular religion is irrelevant. Accordingly, 
particular acts of religious exercise are protected from being substantially 
burdened under RFRA, regardless of whether a judge (or government official or 
law professor or anybody else) feels they are not of sufficient importance to a 
religion to be worthy of protection. 
 
With RFRA’s definition of “religious exercise” in mind, what is the precise 
religious exercise involved in O’Brien and in other cases challenging the 
contraception/abortifacient mandate?   As I understand it, the religious 
exercise at issue is that the religious adherent (i.e., the employers in these 
cases) believes that it morally wrong to purchase a health care plan (in the 
case of a non-self insured employer) that includes 
contraceptives/abortifacients or to be forced to pay for 
contraceptives/abortifacients (in the case of an employer with a self-insured 
plan) As I understand it, there is no question in O’Brien (or any of the 
other cases) about the sincerity of this belief or that it is religiously 
based.  
 
Once the focus is placed on the actual religious belief that is being exercised 
here, the question is then whether the mandate substantially burdens this 
religious exercise.   As I understand the mandate’s operation, it says either 
you comply with the mandate and pay for a plan (or provide coverage in the case 
of a self-insured plan) that includes contraceptives/abortifacients or pay a 
penalty.   In other words, if the religious adherents here exercise their 
beliefs, they pay a penalty.   I agree that the e

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

[hamilton02]

Chip-- With respect to RFRA, "substantial burden" was adopted from the case 
law.
Are you suggesting that it has evolved into a different standard?   


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: Ira Lupu 
To: Law & Religion issues for Law Academics 
Sent: Tue, Oct 2, 2012 1:02 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"


I think Marci's distinction between substantial and incidental burdens goes to 
the question of the weight of the burden's materiality (penalty for 
noncompliance with government-imposed norms -- though sometimes financial harm 
is enough -- see Sherbert).  I take her question in this regard to be a 
friendly addition to my own and to Marc's.

I think the either/or choices I attributed to others on the list 
(self-declaration of burden vs. objective adjudication) go to the question of 
the religious character and significance of the burden (e.g., degree of 
complicity in evil from cooperation with the mandate).  That's a different 
question.  But I think RFRA is stunningly ambiguous on the issue of whether its 
focus is materiality, religious character, or some combination of the two.  


On Tue, Oct 2, 2012 at 12:08 PM,   wrote:

Actually, I do not recognize my position under either of Chip's either/or 
choices.  Rather, I would look to the cases, which have dealt with interpreting 
"substantial burden" repeatedly.  Courts have held in the vast majority of 
cases that cost and convenience are not "substantial."   That weighs heavily 
against the ACA plaintiffs, to the extent they are complaining about having to 
pay for insurance.  
"Substantial" means that the religious practice has become "impracticable" or 
severely curtailed.   


The ACA case creates a new, more extreme, demand, which is not that the 
religious believer is being forced or prohibited from taking a particular act, 
beyond purchasing an omnibus health care plan.  Rather, it is that the 
religious believer does not want to pay for a health insurance plan that 
permits employees potentially to obtain health care with which the employer 
disagrees.  The employee (who, under Title VII or state anti-discrimination law 
could not be hired or fired based on religious belief, and who has the benefit 
of doctor/patient confidentiality) may well be fine, on religious grounds, in 
obtaining the contraception and/or abortion (indeed, their religious beliefs 
may actually require or encourage such medical care), but the employer's 
objection is that someone may use a health benefit in a way the religious 
employer doesn't want it used.  Under existing case law, this is an attenuated 
argument that induces an "incidental" burden, not a substantial burden, for 
purposes of free exercise analysis.   


Moreover, the slippery slope is steep.  Jehovah's witnesses and blood 
transfusion; Scientologists and mental health care; Catholics and evangelicals 
and palliative care for the terminal, elderly patientetc., etc.


I am not persuaded by Mark's distinction between the voucher cases, where 
private decisions wash government money of its Establishment Clause 
restrictions, and the ACA situation, where, again, a private actor, is acting 
in an independent way that cannot be attributed reasonably to the provider of 
the benefit.


Marci




On the other side, the government lawyers and courts get to second-guess and 
decide what someone's religion really requires, and what kind of burden on that 
is presumptively too great to force the claimant to endure.  That seems 
unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause 
limits on the state's resolving internal religious questions).

 

 Chip

 






 

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: Tue, Oct 2, 2012 11:45 am
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"



Chip raises a problem I’ve been having a hard time understanding too.  A 
“burden” does seem to imply the willingness to suffer to some unspecified 
degree (rising to the level of being “substantial”) on behalf of the claimed 
belief.  On the specific question of whether one should interpret the adjective 
“substantial” to require some sort of “material burden,” I believe that this is 
what the ED of Missouri court means when it says that the claimant must be 
willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” 
(though I do not believe that the cases cited for this proposition support the 
view that this is a necessary 

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

[hamilton02]

Doug-- What is wrong, with all due respect, is treating the religious 
believer's characterization of the act as the legal characterization of it.
The religious believer's belief that it is a "killing" does not make it one for 
purposes of legal analysis.  That was my very simple point.


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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Oct 2, 2012 10:43 am
Subject: RE: Court Rejects Religious Liberty Challenges To  ACA 
Mandate--interpreting "substantial burden"



One does not have to believe that early abortions kill human beings to 
recognize the profound significance of performing, assisting, or procuring an 
abortion to those who believe it is a killing of a human being. 
 
If we all took the same view of every issue, we would not need a regime of 
religious liberty. Religious liberty is a response to disagreement on issues 
that some people on both sides find non-compromisable. It is never an adequate 
response to a religious liberty claim to say that the claimant is just wrong in 
how he views the disputed issue.
 
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 hamilto...@aol.com
Sent: Tuesday, October 02, 2012 8:16 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

 
A characterization of abortion as "a killing," is a religious assessment, not a 
medical or constitutional category.   

A fetus is not a "person" for constitutional purposes.  Even abortion foe 
Justice Scalia has publicly acknowledged that.

Therefore, analyzing the cases as though abortion fits into "killing" cases is 
weaker than Doug has conceded.

 


Moreover, in the conscientious objection cases, the religious objection on the 
part of Quakers is in favor of peaceful

resolution of conflict, which is different from an objection to killing per se, 
and many COs are not objecting to war in general but rather

a particular war.  

 

There is no justification for treating those who oppose the medical procedure 
of abortion on religious

grounds any differently than any other religious objector to another medical 
procedure.  For all the reasons that Native Americans

cannot avoid the social security number requirement in the welfare context, the 
Amish cannot avoid Social Security taxes (absent an

exemption), and Native Americans cannot force the federal government to use its 
property according to their beliefs, religiously affiliated employers

cannot avoid a neutral, generally applicable requirement that medical insurance 
include the option, that is triggered solely the patient's 

decision in consultation with her doctor, of reproductive medical care.  

 

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

 

 
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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 
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messages to others.

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

[hamilton02]

Doug--The government in Bowen required the applicant to obtain a social 
security number to obtain benefits.   They did not want to obtain it, because 
it would sacrifice their child's soul.  Looks like forced "complicity with evil 
to me."   How does that work under your distinction?

I have to say it looks like a distinction without a difference to me.



Lyng is certainly relevant re: whether the subjective sense of the burden is 
relevant.  It is not.


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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Oct 2, 2012 10:42 am
Subject: RE: Court Rejects Religious Liberty Challenges To  ACA 
Mandate--interpreting "substantial burden"



Marci, read what you quoted. Read the passages I have boldfaced below. Bowen 
and Lyng were explicitly about government actions that required nothing of the 
plaintiffs. Those plaintiffs were not required to take any action at all.  The 
government caused problems for plaintiffs’ religion, but it did not require 
them to do anything that violated their own understanding of their religion. A 
lot of people don’t like that distinction, but that’s what it was.  
 
The ACA plaintiffs are required to take action that violates their own 
understanding of their religious obligations. Many arguments remain beyond that 
point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were 
cases that did not reach that first step.
 
 
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 hamilto...@aol.com
Sent: Tuesday, October 02, 2012 9:44 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

 
I think Lyng (which explicitly relies on Bowen) is indeed relevan to a 
substantial burden analysis, because it states that even a potentially 
disastrous burden is not the sort of burden that supports a finding of a free 
exercise violation.  It supports the view that a subjective view of burden does 
not establish burden, and that an incidental 

burden is insufficient.  The possibility that an employee who does not share 
the faith will use, in conjunction with a doctor's advice, contraception

and abortion medical services is a classic incidental burden.  The employer has 
not been foreclosed from preaching against contraception and abortion in 

every conceivable context, and need never purchase it for an employee, and in 
fact cannot even know if the employee is using it given doctor-patient 
privilege.  (Honestly, as others have implied, if parochial schools are going 
to rely on the intervening actor theory to avoid an Establishment Clause 
violation, they have real problems here.)  

 

This is from the Lyng syllabus, which I'm including because it is more compact 
than the full language of the opinion:

 

In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring 
States to use Social Security numbers in administering certain welfare programs 
did not violate Indian religious rights under the Free Exercise Clause -- this 
Court rejected the same kind of challenge that respondents assert. Just as 
inRoy, the affected individuals here would not be coerced by the Government's 
action into violating their religious beliefs; nor would the governmental 
action penalize the exercise of religious rights by denying religious adherents 
an equal share of the rights, benefits, and privileges enjoyed by other 
citizens. Incidental effects of government programs, which may interfere with 
the practice of certain religions, but which have no tendency to coerce 
individuals into acting contrary to their religious beliefs, do not require 
government to bring forward a compelling justification for its otherwise lawful 
actions. The Free Exercise Clause is written in terms of what the government 
cannot do to the individual, not in terms of what the individual can exact from 
the government. Even assuming that the Government's actions here will virtually 
destroy the Indians' ability to practice their religion, the Constitution 
simply does not provide a principle that could justify upholding respondents' 
legal claims. 

 

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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Mon, Oct 1, 2012 12:38 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "s

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

[hamilton02]

Actually, I do not recognize my position under either of Chip's either/or 
choices.  Rather, I would look to the cases, which have dealt with interpreting 
"substantial burden" repeatedly.  Courts have held in the vast majority of 
cases that cost and convenience are not "substantial."   That weighs heavily 
against the ACA plaintiffs, to the extent they are complaining about having to 
pay for insurance.  
"Substantial" means that the religious practice has become "impracticable" or 
severely curtailed.   


The ACA case creates a new, more extreme, demand, which is not that the 
religious believer is being forced or prohibited from taking a particular act, 
beyond purchasing an omnibus health care plan.  Rather, it is that the 
religious believer does not want to pay for a health insurance plan that 
permits employees potentially to obtain health care with which the employer 
disagrees.  The employee (who, under Title VII or state anti-discrimination law 
could not be hired or fired based on religious belief, and who has the benefit 
of doctor/patient confidentiality) may well be fine, on religious grounds, in 
obtaining the contraception and/or abortion (indeed, their religious beliefs 
may actually require or encourage such medical care), but the employer's 
objection is that someone may use a health benefit in a way the religious 
employer doesn't want it used.  Under existing case law, this is an attenuated 
argument that induces an "incidental" burden, not a substantial burden, for 
purposes of free exercise analysis.   


Moreover, the slippery slope is steep.  Jehovah's witnesses and blood 
transfusion; Scientologists and mental health care; Catholics and evangelicals 
and palliative care for the terminal, elderly patientetc., etc.


I am not persuaded by Mark's distinction between the voucher cases, where 
private decisions wash government money of its Establishment Clause 
restrictions, and the ACA situation, where, again, a private actor, is acting 
in an independent way that cannot be attributed reasonably to the provider of 
the benefit.


Marci




On the other side, the government lawyers and courts get to second-guess and 
decide what someone's religion really requires, and what kind of burden on that 
is presumptively too great to force the claimant to endure.  That seems 
unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause 
limits on the state's resolving internal religious questions).

 

 Chip

 





 
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: Tue, Oct 2, 2012 11:45 am
Subject: RE: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"



Chip raises a problem I’ve been having a hard time understanding too.  A 
“burden” does seem to imply the willingness to suffer to some unspecified 
degree (rising to the level of being “substantial”) on behalf of the claimed 
belief.  On the specific question of whether one should interpret the adjective 
“substantial” to require some sort of “material burden,” I believe that this is 
what the ED of Missouri court means when it says that the claimant must be 
willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” 
(though I do not believe that the cases cited for this proposition support the 
view that this is a necessary condition).  One might interpret this statement 
as a requirement that the plaintiff must be willing to suffer *at least* one of 
these three kinds of penalties in order for the burden to be substantial, or 
maybe to suffer at least some sort of penalty period (again provided that the 
penalty is substantial).  It’s difficult for me to see that we would want to 
test the religious liberty claim in all cases against a willingness to go to 
prison, for example (Chip writes about a related issue in his “Failure of RFRA” 
piece, I think).  
 
But even if we thought that willingness to pay a fine would be a good test for 
substantiality (which I’ll admit doesn’t seem unreasonable to me, in some 
cases), I wonder about how this would work in practice.  That is, how would we 
know that the plaintiff was really willing to pay a fine rather than be forced 
to do something alleged to violate religious conscience?  What would be the 
proof?  
 
I’ll add that I am genuinely confused about the issue of substantiality of the 
burden, because it does seem to me to require more than something like 
subjective sincerity, but also to forbid courts from inquiring into the 
importance of the belief, or the degree to which the belief has been ratified 
by other religious adherents.  If that is right, then what is left to determine 
the substantiality of the burden other than the degree to which the claimant is 
willing to suf

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

[hamilton02]

I think Lyng (which explicitly relies on Bowen) is indeed relevan to a 
substantial burden analysis, because it states that even a potentially 
disastrous burden is not the sort of burden that supports a finding of a free 
exercise violation.  It supports the view that a subjective view of burden does 
not establish burden, and that an incidental
burden is insufficient.  The possibility that an employee who does not share 
the faith will use, in conjunction with a doctor's advice, contraception
and abortion medical services is a classic incidental burden.  The employer has 
not been foreclosed from preaching against contraception and abortion in 
every conceivable context, and need never purchase it for an employee, and in 
fact cannot even know if the employee is using it given doctor-patient 
privilege.  (Honestly, as others have implied, if parochial schools are going 
to rely on the intervening actor theory to avoid an Establishment Clause 
violation, they have real problems here.)  


This is from the Lyng syllabus, which I'm including because it is more compact 
than the full language of the opinion:


In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring 
States to use Social Security numbers in administering certain welfare programs 
did not violate Indian religious rights under the Free Exercise Clause -- this 
Court rejected the same kind of challenge that respondents assert. Just as 
inRoy, the affected individuals here would not be coerced by the Government's 
action into violating their religious beliefs; nor would the governmental 
action penalize the exercise of religious rights by denying religious adherents 
an equal share of the rights, benefits, and privileges enjoyed by other 
citizens. Incidental effects of government programs, which may interfere with 
the practice of certain religions, but which have no tendency to coerce 
individuals into acting contrary to their religious beliefs, do not require 
government to bring forward a compelling justification for its otherwise lawful 
actions. The Free Exercise Clause is written in terms of what the government 
cannot do to the individual, not in terms of what the individual can exact from 
the government. Even assuming that the Government's actions here will virtually 
destroy the Indians' ability to practice their religion, the Constitution 
simply does not provide a principle that could justify upholding respondents' 
legal claims. 


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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Mon, Oct 1, 2012 12:38 pm
Subject: RE: Court Rejects Religious Liberty Challenges To  ACA 
Mandate--interpreting "substantial burden"



Oops. Writing too fast.
 
What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a 
no-burden holding in the ACA cases.  Lyng and Bowen do indeed appear 
irrelevant. But Lee is not irrelevant; it supports a holding of substantial 
burden. The Court accepted the Amish claim that payment of social security 
taxes was forbidden by their faith, and concluded that requiring this payment 
“interferes with their free exercise rights.” But “not all burdens are 
unconstitutional. That state may justify a limitation on religious liberty . . 
.” And it went on to find a compelling interest in collecting taxes, including 
social security taxes.
 
So in Lee, the Court said that payment of funds to the government, for a stated 
purpose that is religiously objectionable, is a constitutionally cognizable 
burden on free exercise. 
 

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 Douglas Laycock
Sent: Monday, October 01, 2012 10:55 AM
To: 'Law & Religion issues for Law Academics'
Subject: FW: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

 
Lyng and Bowen involved no regulation of religious behavior. Lee expressly 
found a burden on free exercise (455 U.S. at 257); the case was decided on 
compelling interest grounds. None of these cases have any relevance to the 
burden issue in the ACA cases.
 
And by the way, I think that all three were rightly decided.
 
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 hamilto...@aol.com
Sent: Monday, October 01, 2012 8:34 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial b

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

[hamilton02]

Rick- Are you saying that RFRA stands for the proposition that there is a 
rebuttable presumption in favor of 
feasible accommodations?  I hadn't heard it characterized in that way before.  


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: Rick Garnett 
To: Law & Religion issues for Law Academics 
Sent: Tue, Oct 2, 2012 8:19 am
Subject: RE: Court Rejects Religious Liberty Challenges To  ACA 
Mandate--interpreting "substantial burden"


Dear Marty,

For what it's worth, Doug states succinctly and well what is also my view 
(though, with respect to religious institutions, I believe that the mandate 
burdens religious freedom in the additional, integrity-compromising way that 
has 
been mentioned).  I do not believe that our commitment to religious freedom 
means that we need to treat as "burdens" on that freedom (a) requirements that 
employers pay salaries to employees who might use the funds in ways to which 
the 
employer objects or (b) requirements that citizens pay taxes to governments who 
might use the funds in ways to which the taxpayer objects.  (So, the whole "it 
burdens the religious freedom of objectors for governments to provide 
scholarships to kids attending parochial schools" line is, I think, misguided.) 
 
But, as others have pointed out, the compelled-insurance-coverage context is 
(the district court's ruling notwithstanding) at least distinguishable and, it 
seems to me, rises to the level of a "substantial burden!
 " -- even if, ultimately, one concludes that complying with the mandate does 
not amount to culpable "cooperation with evil" and even if, ultimately, one 
concludes that it is a justifiable and unavoidable (given the "compelling 
interest", etc.) one.  

True, if one believes that, as a general rule, we should not accommodate 
religious believers and institutions who object to complying with duly enacted 
laws and promulgated regulations (at least some of the plaintiffs in the ACA 
cases have challenged the mandate on administrative-law grounds), then one is 
not going to think the argument for a broader exemption from the mandate is 
very 
strong.   But, if one does believe that our commitments translate into at least 
a rebuttable presumption in favor of feasible accommodations, this strikes me 
as 
a good case for one.

Best,

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 


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock
Sent: Monday, October 01, 2012 8:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

My post on the analogy between exemption from military service and exemption 
from abortion was addressed to Marci's claim that there should be nothing 
special about objection to abortion. That is a much broader claim than just the 
ACA issue.  And there are people in the pro-choice movement pushing against 
conscience protections for medical providers.

As to ACA, I do not think there is a burden when an employer pays salary, and 
the employee then uses the money for purposes the employer considers immoral. 
The salary payments could have been used for anything.

I think the burden on the taxpayer who pays taxes, knowing that the government 
will use the money for purposes the taxpayer considers immoral, is highly 
attenuated, and uniformly outweighed by the government's compelling interest in 
paying taxes.

The ACA looks different to those objecting, and plausibly so, because the money 
is not paid to the employees or to the government. The employer buys a package 
of services that includes the services the employer believes to be immoral, 
including the morning-after and week-after pills that the employer believes 
sometimes kill human beings. The employer contracts for those services and pays 
for those services, and these employers say they cannot in conscience do those 
things.

On Mon, 1 Oct 2012 19:46:50 -0400
 Marty Lederman  wrote:
>Fortunately, the question here is far, far removed from whether the 
>state can or should require anyone to perform an abortion, or to kill in 
battle.
>It is, instead, whether the state can require employers to take some of 
>the money they would have used to pay employee salaries, or taxes -- 
>some of which would foreseeably have been used to pay for contraception 
>(or even abortions, in the case of salaries), anyway -- and instead use 
>it to partially subsidize an insurance plan that, like salaries and 
>taxes, is used to pay for countless goods and services, some of which 
>involve 

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

[hamilton02]

A characterization of abortion as "a killing," is a religious assessment, not a 
medical or constitutional category.  
A fetus is not a "person" for constitutional purposes.  Even abortion foe 
Justice Scalia has publicly acknowledged that.
Therefore, analyzing the cases as though abortion fits into "killing" cases is 
weaker than Doug has conceded.



Moreover, in the conscientious objection cases, the religious objection on the 
part of Quakers is in favor of peaceful
resolution of conflict, which is different from an objection to killing per se, 
and many COs are not objecting to war in general but rather
a particular war.  


There is no justification for treating those who oppose the medical procedure 
of abortion on religious
grounds any differently than any other religious objector to another medical 
procedure.  For all the reasons that Native Americans
cannot avoid the social security number requirement in the welfare context, the 
Amish cannot avoid Social Security taxes (absent an
exemption), and Native Americans cannot force the federal government to use its 
property according to their beliefs, religiously affiliated employers
cannot avoid a neutral, generally applicable requirement that medical insurance 
include the option, that is triggered solely the patient's 
decision in consultation with her doctor, of reproductive medical care.  


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: Douglas Laycock 
To: Law & Religion issues for Law Academics 
Sent: Mon, Oct 1, 2012 7:30 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA  
Mandate--interpreting "substantial burden"


We have a long political tradition of treating objections to killing as a 
special claim, deserving special protection. We have exempted conscientious 
objectors in all our wars, even when national existence was on the line, and 
notwithstanding powerful incentives to dubious conversions or false claims. 

This protection has not been as broad as objectors would like; it is not immune 
to limitation when government chooses to assert its compelling interests. But 
it 
received very strong protection that grew stronger over time. 

In the war case, we all agree that draftees may be asked to kill other human 
beings, but the majority says these are lawful killings, and the minority says 
they are killings prohibited by God. 

In the abortion case, the majority believes it is not a killing of a human 
being; the conscientious objector believes it is. The disagreement over the 
nature of the killing comes at a slightly different point; I do not claim that 
the cases are identical. 

I do believe that there are sound reasons, reflected in our legal and political 
tradition, to give special deference to what the conscientious objector 
believes 
is a refusal to kill another human being.

The cases also differ in the weight of the government's interest; it is almost 
never essential that an abortion be performed or assisted by a particular 
medical provider.

On Mon, 1 Oct 2012 17:16:55 -0400 (EDT)
 hamilto...@aol.com wrote:
>In response to Rick, the answer to the question from my perspective is that a 
religiously affiliated organization (not a church) could be required to provide
>insurance that includes all possible medically feasible and advisable 
treatments.  That is a classic, neutral, generally applicable law.
>
>
>Obviously, abortion is at times a medically feasible and medically advisable 
treatment.  The employer buys an ombnibus insurance plan, and employers, 
consistent with medical advice and their own religious and personal views, 
choose what treatments they obtain.  That seems to me constitutional.  This is 
not distinguishable
>from the objections raised by Quakers having to pay taxes that support war or 
the Amish having to pay into social security that supports a set of 
relationships
>they believe are religiously wrong.
>
>
>I'm glad you asked this question, because it seems to indicate that the 
argument against the ACA at base appears to be that the belief against abortion 
is somehow more important than other beliefs.  I don't see how the 
Establishment 
Clause permits that kind of religious belief prioritizing, or any of the free 
exercise cases either.
>
>
>No employer should be able to exclude blood transfusions, which are abhorrent 
to Jehovahs Witnesses, from medical coverage. I haven't heard anyone
>get behind such an exemption.But those opposing the ACA's reproductive 
health care provisions seem to be suggesting that somehow abortion opposition 
is 
a superior belief that deserves extra constitutional protection.  
>
>
> 
>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
>
>
>
>
>

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

[hamilton02]

In response to Rick, the answer to the question from my perspective is that a 
religiously affiliated organization (not a church) could be required to provide
insurance that includes all possible medically feasible and advisable 
treatments.  That is a classic, neutral, generally applicable law.


Obviously, abortion is at times a medically feasible and medically advisable 
treatment.  The employer buys an ombnibus insurance plan, and employers, 
consistent with medical advice and their own religious and personal views, 
choose what treatments they obtain.  That seems to me constitutional.  This is 
not distinguishable
from the objections raised by Quakers having to pay taxes that support war or 
the Amish having to pay into social security that supports a set of 
relationships
they believe are religiously wrong.


I'm glad you asked this question, because it seems to indicate that the 
argument against the ACA at base appears to be that the belief against abortion 
is somehow more important than other beliefs.  I don't see how the 
Establishment Clause permits that kind of religious belief prioritizing, or any 
of the free exercise cases either.


No employer should be able to exclude blood transfusions, which are abhorrent 
to Jehovahs Witnesses, from medical coverage. I haven't heard anyone
get behind such an exemption.But those opposing the ACA's reproductive 
health care provisions seem to be suggesting that somehow abortion opposition 
is a superior belief that deserves extra constitutional protection.  


 
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: Marty Lederman 
To: Law & Religion issues for Law Academics 
Sent: Mon, Oct 1, 2012 1:49 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"


Rob's thoughts are well worth reading -- he puts his finger on a bunch of 
questions that are sure to be central to these cases going forward.

One caveat on the "equivalence" point raised by Rob and Rick:

To the extent the court is rejecting a "proximate cooperation with evil" theory 
of substantial burden here, then yes, that same theory would presumably be 
subject to the same objections if the case involved a diocese and elective 
abortion coverage.  But the diocese would have a much stronger substantial 
burden argument on a different theory -- one of the "institutional autonomy" 
theories that Rick referred to earlier.  In particular, assuming the diocese 
exercises its title VII exemption, and prefers coreligionists in employment, 
then I'd assume one of its principal functions -- unlike that of the 
ceramics-processing O'Brien Industrial Company -- is to create and nurture a 
particular kind of religious community, one in which its employees are expected 
to advance its Catholic mission, and to adhere to Catholic tenets in their own 
conduct.  The HHS rule would arguably have a significant impact on the ability 
of the diocese to so shape its community and to ensure that its employees act 
in accordance with Catholic precepts.  In that respect, the diocese is very 
differently situated for RFRA purposes from the O'Brien Industrial Company, 
which hires many non-Catholics and that does not endeavor to require its 
employees to conform their conduct to Catholic precepts.


On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett  wrote:


Dear colleagues,
 
Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the 
decision’s many flaws -- to the decision we’re discussing, at the “Mirror of 
Justice” blog:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html
 
As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial 
burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an 
exemption-less requirement that the diocese provide insurance coverage for 
elective abortions.  Do those who have been welcoming this decision agree that 
RFRA would not / should not protect the diocese in such a case?
 
Best, R
 

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 

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock

Sent: Monday, October 01, 2012 10:55 AM
To: 'Law & Religion issues for Law Academics'

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



 
Lyng and Bowen involved no regulation of religious behavior. Lee expressly 
found a burden on free exercise (455 U.S. at 257); the case was decided on 
compelling interest grounds. None of these cas

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

[hamilton02]

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 
To: Law & Religion issues for Law Academics 
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--interpreting "substantial burden"

[hamilton02]

Religious groups and their supporters have been trying to water down 
"substantial"
for years.   The Alabama rfra doesn't include "substantial" and neither did the 
failed North Dakota or Colorado
initiatives.  One of the reasons the latter failed is overreaching, though it 
is also attributable to the fact
that the Rutherford Institute and others lobbying for rfras have met their 
match in a number of opposing groups.


The court in the ACA case did little more than apply existing law on the 
interpretation of "substantial."  Those arguing
the case was wrongly decided on this issue are arguing for a new standard.  
That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate
"substantial burden" was to be interpreted according to existing precedents (as 
of 1993 and 2000).  In other words, Lyng, Bowen, and Lee are the
governing interpretations for RFRA.  Subjective views of burden are not part of 
the doctrine.  It would take the Supreme Court to overturn these
decisions to grant a win to the religiously affiliated institutions.


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: Steven Jamar 
Cc: Law & Religion issues for Law Academics 
Sent: Sun, Sep 30, 2012 10:16 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate



On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote:

> Steve's second point -- the difference between historic exclusion of 
> Catholics 
as such and contemporary exclusion of those who adhere too strictly to certain 
Catholic teachings -- is just Smith's holding about generally applicable laws. 
The whole point of RFRA was to create statutory protection not restricted to 
that holding.

Agreed.  But that doesn't make the history of status-based exclusion 
controlling 
for what is and is not a substantial burden, or even particularly relevant.  
They are different types of exclusion.  There are reasons to protect 
pure-belief-based actions even in the commercial secular marketplace, but that 
history is not one of them.


> The ACA and the contraceptive mandate also have exceptions that cover rens of 
millions of people, so it is far from clear that this is a neutral and 
generally 
applicable law. The no-burden holding also saves the court from having to 
address that issue.

I am not overly fond of a number of substantial burden results.  But the test 
is 
substantial burden, not merely burden, and the term "substantial" should mean 
something.  I think it should mean something quite substantial and be something 
that really effectively prohibits the exercise of religion or really makes it 
so 
hard to practice one's beliefs that one has a hard time practicing them.  I 
understand others think it should be subjective and controlled by the adherent 
and that we should take his or her word for the substantiality of the effect.

You may believe that OSHA is the work of the devil.  But that doesn't relieve 
you from compliance if you choose to engage in the sort of commerce that OSHA 
regulates.  No one is making you do that sort of work.  You have alternatives.  

Do we really want to say the subjective burden as felt by the adherent gets 
past 
the first hurdle and then have courts start expanding "compelling state 
interest" to uphold the myriad regulations on commercial establishments?  That 
seems to me to be a greater mischief.

Perhaps RFRA should be revisited to address the back-end standard to make the 
balancing more like EP intermediate scrutiny.  Or to consider the 
substantiality 
of the burden, the importance of the state's interest, the effect on third 
parties (e.g. employees in an employer setting), and the effect of ruling one 
way or the other on all three -- what options are available for the religious 
adherent employer; what costs are there to society and the government in 
interests of equality, equity, administration of the laws; what options are 
there to the employee.  But that opens quite another can of worms and gives 
huge 
discretionary power to the courts.

Is that really what we want here?

Or do we really want the unit veto for any and all government regulations short 
of human sacrifice and child abuse as compelling interests?

Are we going to revisit the social security cases and now say they don't need 
to 
pay the tax?

I think the judge got it right here and that the alternatives are not 
necessarily good for free exercise in the bigger picture.

Steve

> 
> On Sun, 30 Sep 2012 21:32:10 -0400
> Steven Jamar  wrote:
>> I was quite clearly talking about religious employers in secular commerce.   
The religious institutions engaging in secular/religious endeavors like 
religious schools and hospitals are different from someone making and selling 
widgets.
>> 
>> There is also quite a difference between pure status exclusion of the type 
Doug re

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[hamilton02]

Steve's point, I believe, was simply that there is no constitutional right to 
hold a particular job or conduct a particular business, or business at all.
That has been settled for decades, has it not?  Religious believers sometimes 
have to make life choices that are narrower than others might choose,
because of their faith.  Is the point here that there is a constitutional right 
to avoid making such choices?




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: Arthur Spitzer 
To: Law & Religion issues for Law Academics 
Sent: Sun, Sep 30, 2012 10:11 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate


I find Steve Jamar's post ("No one needs to be an employer") puzzling.  Could 
Congress enact a statute providing "observant Roman Catholics (or Moslems, or 
Jews, or Seventh Day Adventists, or Mormons) may not be employers"?  

Would such a statute be different, in its burden on such people, from a statute 
saying "all employers must do X, when X is something that observant Roman 
Catholics (or Moslems, or Jews, or Seventh Day Adventists, or Mormons) cannot 
do?

I'm not saying such a statute would be unconstitutional. I'm just asking if the 
burden would be different.

Art Spitzer



On Sun, Sep 30, 2012 at 9:50 PM, Steven Jamar  wrote:

How about an employer being exempt from buying insurance, but then paying a tax 
that goes into a pool for the government to buy group insurance for those 
employees.  How is that substantively different from just requiring the 
insurance benefit in the first place?  And yet this sort of tax seemed ok to 
Mark.  I don't see how this really insulates the employer from the complicity 
in evil through paying for it.  Is the "agreement" (coerced agreement is 
agreement?) that different?


Isn't the proper agreement the one between the employer and society that lets 
the employer exploit the economic system and all of its supports in exchange 
for doing business within the rules of commerce to be followed by everyone?  
That agreement may be one with the devil, but no one is making the person agree 
to it.  No one needs to be an employer.


Steve






-- 
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/




"The aim of education must be the training of independently acting and thinking 
individuals who, however, see in the service to the community their highest 
life achievement."



Albert Einstein








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Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[hamilton02]

Alan--  These are public policy questions in my view, not constitutional or 
RFRA-related.  


As a policy matter, I would object to all 3.  The first is an unreasonable 
life-and-death limitation to put on anyone's health insurance coverage.  (Even 
Jehovah's Witnesses, who have in some cases, accepted the transfusion when 
faced with certain death.)   I do not think employers, whether religiously 
affiliated or not, (other than religious institutions) should be able to use 
their religious beliefs to craft health benefits, which should be shaped by 
medical science instead.


The second is pushing the cost of the employer's religious faith onto 
taxpayers, who don't necessarily share the faith.  The third is yet another 
iteration of permitting the employer to shape the world according to his or her 
particular religious viewpoint.  


As a policy matter, I think we are playing with fire when we encourage 
religious believers to use government programs to impose their faith on others. 
 Note that I did not say imposing their faith on "non-believers"--the issue 
here is one set of religious believers (employers) using their power in the 
marketplace to impose costs on other religious believers (employees).That 
is the path to Balkanization, civil war, and religiously- motivated violence.  
This issue is all about respecting the distance and difference between 
believers with different faiths, while encouraging peaceful coexistence. 
For-profit employers may not discriminate on the basis of religion, and that 
has led to a workplace where Christians, Muslims, and Jews can work together 
peacefully.  It also has led to a system where employees are chosen based on 
their skills, as opposed to their faith.  That is good for the marketplace and 
productivity, and for a peaceful society of diverse religious believers.  


But, as I say, these are policy judgments, not constitutional doctrinal 
analysis.   


Marci


1.  It exempted the religious employer from a regulation requiring employers to 
pay for health insurance that covered blood transfusions.
 
2.  It provided insurance coverage for employees working for exempt religious 
employers at the government’s expense so that no employee lost any insurance 
coverage as a result of the exemption.
 
3.  It determined whether and to what extent the religious employer saved money 
as a result of the exemption from the health insurance coverage mandate and 
directed the employer to contribute that amount to a separate fund used by the 
government to further public purposes that are consistent with the employer’s 
faith – say providing food to hungry children.
 




 
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: Alan Brownstein 
To: Law & Religion issues for Law Academics 
Sent: Sun, Sep 30, 2012 9:30 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate



Marci,
 
Would you object if the government created an exemption package that did three 
things.
 
It exempted the religious employer from a regulation requiring employers to pay 
for health insurance that covered blood transfusions.
 
It provided insurance coverage for employees working for exempt religious 
employers at the government’s expense so that no employee lost any insurance 
coverage as a result of the exemption.
 
It determined whether and to what extent the religious employer saved money as 
a result of the exemption from the health insurance coverage mandate and 
directed the employer to contribute that amount to a separate fund used by the 
government to further public purposes that are consistent with the employer’s 
faith – say providing food to hungry children.
 
Alan
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of hamilto...@aol.com
Sent: Sunday, September 30, 2012 6:03 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate
 
Mark--  Should it matter whether we are talking about blood transfusions or 
abortion?  If Catholic institutions can win in the ACA cases on abortion, then

Jehovahs Witnesses should be able to not pay for coverage for blood 
transfusions for their employees.  There is no persuasive distinction between 
the two

that  I've heard yet, but no one has made the foray beyond 
abortion/contraception on the list yet other than my earlier suggestion.

 

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

 

 


 
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Please note that m

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[hamilton02]

Mark--  Should it matter whether we are talking about blood transfusions or 
abortion?  If Catholic institutions can win in the ACA cases on abortion, then
Jehovahs Witnesses should be able to not pay for coverage for blood 
transfusions for their employees.  There is no persuasive distinction between 
the two
that  I've heard yet, but no one has made the foray beyond 
abortion/contraception on the list yet other than my earlier suggestion.


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: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Sent: Sun, Sep 30, 2012 4:55 pm
Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate



In case this was confusing to list members, my quick comment to which Marty 
replied was bounced by the list (because it had too many addressees). Obviously 
it got through to Marty.
 
Perhaps someone who has more information about insurance policies will know 
whether they list particular matters that they cover, such as contraception. 
The point remains that to require someone to enter into a transaction by which 
the person agrees to pay for an action makes the person more complicit in the 
action than if the govt extracts the funds from the person and pays for the 
action itself. At least, it is quite reasonable to consider the entering into 
an agreement to subsidize an action to be a fairly direct connection to the 
action.
 
I will also say that the shift from abortion to contraception, as Marty has 
shifted it, may affect our analysis emotionally. Conceptually, there is no 
difference in whether there is a substantial burden, whether the issue is 
agreement to subsidize contraception or agreement to subsidize abortion. That 
is, there is no difference unless we think that abortion should be a bigger 
matter for a religious person than contraception, and that the stronger 
objection to abortion is relevant to the analysis. Now in fact abortion is a 
bigger matter than contraception for Catholics and for just about everyone who 
has a problem with being required to subsidize contraception. [In case anyone 
cares, I don’t have a problem with my being required to subsidize 
contraception; I do have a problem with requiring people to subsidize it who 
have a sincere religious objection (which I do not have) to contraception.] But 
the law does not permit us to rely on the strength of the person’s religious 
objection – for example, an objection to the taking of human life that is 
stronger than an objection to sexual immorality – to decide whether there is a 
substantial burden. We know that centrality, which is a very similar concept, 
is not to be considered in determining whether there is a substantial burden, 
so there can be a substantial burden even if the issue is not at the top of the 
religious person’s list of religious moral concerns. 
 
It shouldn’t matter whether we are talking about abortions or contraception, 
but to the extent someone thinks it matters, some forms of contraception are 
considered by some religious persons to cause abortions by terminating rather 
than preventing pregnancies. Lots of us may disagree with that 
characterization, but even if the difference between abortion and contraception 
matters, our disagreement about whether  particular conduct causes abortions is 
irrelevant.
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Sunday, September 30, 2012 10:22 AM
To: Scarberry, Mark
Cc: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate
 
I'm not sure why the existence of a contract would fundamentally alter the 
religious obligation question.  But even if it did, the employer is not 
required to enter into a contract to provide contraception.  It is required to 
offer its employees access to a health-insurance plan.  To be sure, that 
obligation might, as a practical matter, mean that an employer might have to 
enter into a contract with an insurance company . . . but that contract would 
typically not mention contraception at all, let alone include a promise by the 
employer to provide reimbursement for contraception.  The employer merely 
promises the insurance company that it will offer participation in the group 
plan to its employees, and perhaps also promises the insurance company that it 
will pick up a percentage of the premiums (not tied to whether any or all 
employees use contraception).

On Sun, Sep 30, 2012 at 1:10 PM, Scarberry, Mark 
 wrote:

A very quick comment as I’m running out the door. There is a difference between 
a law that takes money from a person to pay for something and a law that 
requires the person to enter into a contract for provision of that thing. 
Imagine a Quaker being re

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[hamilton02]

So long as an organization is hiring outside the faith, I think these cases 
should not go in favor of the religious organization.
These arguments are religious liberty-creep arguments in that the argument is 
not that the believer will be forced to engage in conduct
that violates his or her beliefs, or be stopped from advocating for his/her 
beliefs.  The argument is that the religious believer feels burdened
when others exercise their religious beliefs with the money or benefits 
obtained from the employer.  This is an alarming slippery slope
in my view.  If there is a constitutionally cognizable burden on religious 
belief/conduct when a nonbeliever uses the employer's money
according to the believer's own principle, the employer is obtaining a right to 
deter and burden (economically) differing believer employees.


Lyng, Lee, and Bowen were not popular among legal scholars when decided, 
generally, but they have not been overturned, and their
reversal is highly unlikely. (I agree with Sandy that is very hard to 
distinguish between the pacifist cases and the ACA case(s).)
I do think they are as close to on-point as you can get, and with the believers 
losing in those cases,
it is very hard to permit the believer to win in these cases.  


The key here in my view is that the religious believers lost the political 
battle
and are trying to use the courts to obtain the exemptions they could not 
persuade Congress to include.  They are not constitutionally
mandated, nor are they cognizable under RFRA for lack of a substantial burden.  
 


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: Douglas Laycock 
To: Law & Religion issues for Law Academics 
Sent: Sun, Sep 30, 2012 4:17 pm
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?
>
>
>

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[hamilton02]

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 if the court does not?  How should 
one measure the standard for seriousness?
 
The standard that RFRA sets is not whether a court believes that the argument 
raised by the objecting religious claimant is “serious.”  It is whether the 
claimant has alleged a substantial burden.  Alleging a substantial burden does 
not require that the court gauge the seriousness of the objector, or his or her 
objection, or the degree to which the argument has achieved theological 
consensus, or its importance or centrality within the overarching system of 
belief.  It does not demand the assent of a selection of theologians.  After 
all, other theologians, at other conferences, surely would disagree with the 
conclusions of the theologians at Marty’s conference, but I take it that their 
feelings are also not the gauge by which we measure whether a burden is 
substantial. 
 
One possibility is to demand some sort of pain threshold, as the Missouri court 
intimates, going so far as to suggest (in what I believe is a misreading of 
Wisconsin v. Yoder) that suffering a substantial burden may even require a 
willingness to suffer criminal prosecution.  Putting aside the objection that 
there is of course a difference between a necessary condition and a sufficient 
condition, would the argument become a “serious” argument if the owner of the 
company would prefer to be prosecuted rather than to comply?  Or to prefer to 
pay a fine?  Or does the “seriousness” of the argument not depend at all on the 
degree of suffering that the claimant is willing to endure?
 
Marc
 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, September 30, 2012 12:57 PM
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  
wrote:
For what it's worth, at our Georgetown Conference on this issue last wee

Re: What religion is an 8-day-old?

[hamilton02]

Where is the factual fallacy in "the presumption of religion as good is folly 
for the vulnerable"?  It is rock solid.
Honestly-- please provide the empirical refutation of this.



The First Amendment is not a refuge for scoundrels...  Nothing in the 
Constitution demands that judges and the 
government assume religious is good .  The text protects the "free exercise" of 
religion, but according to history 
and case law, that does not mean religious organizations can engage in bad 
acts.  In act, at the time of the framing,
it was assumed that "licentiousness" would never be protected under free 
exercise.  SSP--I wrote an article saying
as much in the William and Mary BIll of Rights Journal.  


What kind of system demands judges assume a counterfactual as the basis of a 
constitutional right?  




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: Arthur Spitzer 
To: Law & Religion issues for Law Academics 
Sent: Tue, Jul 10, 2012 10:41 am
Subject: Re: What religion is an 8-day-old?


As an empirical matter, that ("the presumption of religion as good is folly for 
the vulnerable") may or may not be true.  But when acting in the legal world, 
isn't it a presumption mandated by the Constitution?  The presumption of 
freedom of speech as good may also be folly for the vulnerable, but the 
Constitution instructs judges to assume it to be true.  No?

Art Spitzer




On Tue, Jul 10, 2012 at 10:27 AM, Marci Hamilton  wrote:

As long as it is a case-by-case analysis, I am on board.  But I think the 
presumption of religion as good is folly for the vulnerable.

Marci


On Jul 10, 2012, at 10:10 AM, Andrew M M Koppelman 
 wrote:

> I said that the value of religion sometimes outweighs other considerations.  
> I didn't say it always does so.  Marci has compiled some mighty persuasive 
> horror stories showing that the balance is often struck with excessive 
> deference to religion.  But that doesn't answer the circumcision question.  
> In that context, it's doubtful whether the child is harmed at all, and the 
> religious values on the other side are substantial.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of hamilto...@aol.com [hamilto...@aol.com]
> Sent: Monday, July 09, 2012 10:36 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: What religion is an 8-day-old?
>
> With all due respect to Andrew, but in complete seriousness, religion is 
> often not a good thing even under the law, and often a deadly and permanently
> disfiguring or disabling thing for children, the disabled, and emotionally 
> disabled adults.  A focus on religion as a "good thing" rather
> than a focus on the best interest of the child is precisely what has led to 
> the deep suffering of far too many children.   I find it
> astonishing that anyone would still be  talking in this era in these 
> generalities to protect religion when it is harming children.
>
> Now, if one wants to argue that religion is good when it is not harming the 
> vulnerable, that is a different topic, but it has nothing
> to do with the circumcision debate that has gone on on this thread, which has 
> revolved basically around a fact question: is it
> harmful, even though a fair amount of theory has surrounded this fact 
> discussion.
>
> Having said that, I also agree that much of this discussion has had an unreal 
> quality to it, but mainly because of my original
> point that these issues are best described and analyzed under a best interest 
> of the child analysis, case-by-case, and simply
> not amenable to these theoretical generalities.  And under our pre-existing 
> criminal and tort laws.  Those are the laws that have
> held religious organizations and leaders (e.g., Msgr. Lynn) to account for 
> the cover up of serial child predators to protect religious
> identity, wealth, and power.  These civil laws are the main reason we have 
> any justice in this field.  This law has not treated religion
> as "valuable" or "good" but rather as a no-good defense to harm.  (Except in 
> a diminishing number of states.)   And it is no
> argument in response that no religious groups believe in child sex abuse.  
> That is not true, e.g., Tony Alamo (yes, it's a cult, still a religion);
> FLDS, and the many religious organizations who have theological tenets 
> requiring the cover up of abuse which then multiplies the
> number of victims by enabling predators.
>
> There are some legal areans where religion has been treated as "good," e.g., 
> NY state law on land use.  But it is dangerous
> to legal analysis to take them at face value.  As religious land use has 
> changed and expanded, however, this presumption has become
> increasingly difficult to defend.
>
> Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Ch

Re: What religion is an 8-day-old?

[hamilton02]

With all due respect to Andrew, but in complete seriousness, religion is often 
not a good thing even under the law, and often a deadly and permanently 
disfiguring or disabling thing for children, the disabled, and emotionally 
disabled adults.  A focus on religion as a "good thing" rather
than a focus on the best interest of the child is precisely what has led to the 
deep suffering of far too many children.   I find it
astonishing that anyone would still be  talking in this era in these 
generalities to protect religion when it is harming children.  


Now, if one wants to argue that religion is good when it is not harming the 
vulnerable, that is a different topic, but it has nothing
to do with the circumcision debate that has gone on on this thread, which has 
revolved basically around a fact question: is it
harmful, even though a fair amount of theory has surrounded this fact 
discussion.   


Having said that, I also agree that much of this discussion has had an unreal 
quality to it, but mainly because of my original
point that these issues are best described and analyzed under a best interest 
of the child analysis, case-by-case, and simply
not amenable to these theoretical generalities.  And under our pre-existing 
criminal and tort laws.  Those are the laws that have
held religious organizations and leaders (e.g., Msgr. Lynn) to account for the 
cover up of serial child predators to protect religious
 identity, wealth, and power.  These civil laws are the main reason we have any 
justice in this field.  This law has not treated religion 
as "valuable" or "good" but rather as a no-good defense to harm.  (Except in a 
diminishing number of states.)   And it is no 
argument in response that no religious groups believe in child sex abuse.  That 
is not true, e.g., Tony Alamo (yes, it's a cult, still a religion); 
FLDS, and the many religious organizations who have theological tenets 
requiring the cover up of abuse which then multiplies the 
number of victims by enabling predators.


There are some legal areans where religion has been treated as "good," e.g., NY 
state law on land use.  But it is dangerous
to legal analysis to take them at face value.  As religious land use has 
changed and expanded, however, this presumption has become
 increasingly difficult to defend.


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: Andrew M M Koppelman 
To: Law & Religion issues for Law Academics 
Sent: Mon, Jul 9, 2012 10:42 am
Subject: RE: What religion is an 8-day-old?


This discussion is fascinating, but it has a curiously unreal quality, because 
everyone seems to want, in typically lawyerly fashion, to subsume under some 
broad and generally applicable principle a practice that is in fact unique and 
exceedingly unlikely to generate analogous cases.  This is another case where I 
think it's helpful to recognize that American law treats religion as valuable, 
in a way that sometimes outweighs other considerations.  I elaborate in my 
forthcoming book:  http://www.hup.harvard.edu/catalog.php?isbn=9780674066465.  
If religion is a good thing, and two of the major religions of America practice 
circumcision, then we have a strong reason not to interfere.  This, I think, is 
what is actually going on, not the application of some Wechslerian neutral 
principle about parental rights or individual religious rights or whatever.  
This discussion has made clear that neither of those principles fits the 
practice in question very well.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, July 09, 2012 9:12 AM
To: Law & Religion issues for Law Academics
Subject: What religion is an 8-day-old?




The theoretical principle behind my claim that, “As to ‘the 
sons' own interest in conforming to their religion,’ I don't think it's ‘their 
religion’ at age 8 days, at least under what should be the secular legal 
system's understanding of religion (the subject's own belief system),” is 
simply that, under the First Amendment and under equal protection principles, 
any special treatment of people based on their religion must stem from their 
religious beliefs – their own understanding of God’s commands – and not because 
of their bloodlines. 
 
First, the justifications for religious freedom have generally stemmed from the 
burden that is imposed on people when they are ordered by secular law to do 
something and feel ordered by their religious beliefs to do the opposite.  And 
it is the individual’s beliefs that are important, not to the beliefs of the 
group to which society says he “belongs.” See, e.g., Thomas v.  Review Bd.  
Second, claims that we should treat some people’s interests differently because 
of the ethnic group to which t

Re: Parental rights and physical conduct

[hamilton02]

Courts routinely rule that such an environment is in the best interests of the 
child.  But specific practices need to be vetted under the standard.  It is a
fact question.  


Shared values and age-old historic traditions do not cut it, however.  The 
Muslims who engage in genital mutilation satisfy that criterion;
as do the FLDS who engage in widespread rape of girls and abandonment of boys; 
and the ultra-Orthodox rabbis who tell their believers not to go the 
authorities about child sex abuse.  


Many would argue that it is in the "best interest of the child" to welcome him 
into a supportive, religious community with shared values and age-old historic 
traditions-- 
The question is what is in the interest of this child today.


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: Friedman, Howard M. 
To: Law & Religion issues for Law Academics 
Sent: Thu, Jul 5, 2012 3:47 pm
Subject: RE: Parental rights and physical conduct


Many would argue that it is in the "best interest of the child" to welcome him 
into a supportive, religious community with shared values and age-old historic 
traditions-- that include circumcision or full immersion baptism or some other 
ritual that might create some small risk of injury (just as almost any activity 
might).  The problem is, how do you decide whether or not this is in the 
child's "best interest" without a prior value judgment about the religious 
tradition involved? There is no reason to believe that it is in the best 
interest of the child to raise him or her in a cultural or moral vacuum, or 
devoid of traditions which can give structure to his or her life, until the 
child reaches 18.  Of course there are some rituals that create an undue risk 
of harm-- and isn't the question one of how to identify those without imposing 
our own cultural or religious bias on the question of risk?

Howard


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton
Sent: Thu 7/5/2012 2:59 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct

I would like some clarification from those relying on purported "parental 
rights." The use of the term "parental right"  is freighted w social and 
cultural value but very little legal value.   

Pierce v Society of Sisters is balanced by Prince.  So the use of "right" in 
this context is a dead end in my view.

The best interest of the child is not in the context of parental rights as much 
as it is intended to treat the child as a separate person who deserves 
protection and respect even in opposition to a parent's demands or needs.

Marci

On Jul 5, 2012, at 12:42 PM, Eric Rassbach  wrote:

>
> Eugene --
>
> I don't think this makes sense because it posits an impossible universe of 
> zero-risk parenting. It is far riskier to drive your child on the freeway 
> (not to mention take him/her skiing, or letting him/her play soccer, or play 
> football (esp. in Texas)) than it is to baptize him/her. All those risks are 
> well within the set of risks that parents take in the normal course of 
> parenting. Indeed, for the state to interfere with the ability of parents to 
> expose children to those risks would be a gross interference with parental 
> rights. And I imagine that the danger to infants from either circumcision or 
> full immersion baptism is far lower than driving them around town, though I 
> claim no actuarial expertise on the matter.
>
> Eric
>
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Thursday, July 05, 2012 12:31 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Parental rights and physical conduct
>
>I appreciate Howard's point, but the question is:  Why should 
> some children who by definition do not share a religious belief drown - or 
> otherwise be injured - for the sake of the beliefs of the adults who do have 
> that belief (and even for the sake of those children who, later in life, will 
> wish that they had been so baptized)?  I have great sympathy for people's 
> rights to risk their own lives (in the baptism example) or alter their own 
> bodies (in the circumcision example) for the sake of their religious beliefs, 
> or for that matter for the sake of their secular beliefs.  But why does it 
> follow that they should have the right to impose such risks on others, even 
> others to whom they are genetically linked?
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
> Sent: Thursday, July 05, 2012 8:52 AM
> To: Law & Religion issues for Law Academics
>

Re: Parental rights and physical conduct

[hamilton02]

This kind of act-specific discussion on this thread misses the point in my 
view.  There is a universe of existing law already can protect children and 
should be capable of being brought to bear against parents or guardians who 
negligently/recklessly/intentionally/knowingly harm/injure/kill their children, 
even if it happens for religious purposes.  Criminal law and tort law and 
statutory law on abuse and neglect.  So the parent who starves the infant for 
religious reasons should be capable of being prosecuted; same for the parents 
who permit their child to have oral suction in an Orthodox circumcision; and 
same for the parent who hits/sexually abuses the child for religious reasons.  
Ditto for civil claims.


So why is harm to children in religious settings even an issue?  (1) In part 
because Christian Scientists in the Nixon Administration fomented medical 
neglect exemptions in the states as a condition for federal funding and a 
number of states still have them.  Medical neglect exemptions are not 
constitutionally required.  


(2) Christian Scientists and other religious lobbyists continue to lobby for 
the endangerment of children from medical neglect and even abuse.  At one time, 
when children were treated as parental property and few children's groups had 
traction, legislators gave such religious lobbyists what they requested in a 
knee-jerk fashion.  The rise in children's advocates and a greater sense of 
children as persons has changed that somewhat.   But plenty of states still 
handcuff prosecutors when the child died or suffered for religious reasons.


(3) Religious parents and their lawyers argue that the First Amendment and any 
rfra available protects the parent who harmed their child.  Such defenses (even 
though meritless in my view) can dissuade prosecutors from investing resources, 
and give judges who are sympathetic to religion (or their religion) an opening 
to put roadblocks in the way of justice.  


(4)  A romantic approach to religion in American culture.  


So the solution is the repeal of such exemptions, and apply the existing law to 
religious parents.  I believe that is what Chip is suggesting, but this may go 
farther than he would.


So how does this apply to circumcision?  There should be no blanket exemption, 
and parents and religious leaders need to avoid 
negligent/reckless/wilful/knowing actions that harm a child.  As research into 
the longterm effects of circumcision continues, the judgment on this may well 
change in particular cases.  And if the evidence of harm becomes overwhelming 
(e.g., genital mutilation and polygamy), a blanket ban makes sense.  If 
religious groups want to continue doing it, they will have to justify it.  


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Cardozo School of Law
Yeshiva University






I agree that the danger to infants from full immersion baptism is very low and 
perhaps zero; the hypothetical was that it happened in "a handful of cases," 
but 
I think that's just a hypothetical.  As to what burdens the government imposes 
to avoid "a handful" of deaths of infants, I think that varies from context to 
context.  My sense is that there are quite a few safety regulations -- though 
generally not total bans -- that are indeed justified by the desire to avoid 
just a handful of deaths. 

On the other hand, circumcision involves not a very low risk of death, 
but a 
certainty of loss of part of the body, which in turn involves an uncertain 
possible health benefit and an unknown (and likely very hard to quantify) 
possibility of loss of some sexual function.  That might well be a materially 
higher aggregate loss of utility, to borrow the economic term, than the loss of 
utility from playing football, even in Texas.  Or it might not; again, much 
depends on the facts.

Eugene




 
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: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Thu, Jul 5, 2012 11:28 pm
Subject: RE: Parental rights and physical conduct


I agree that the danger to infants from full immersion baptism is very 
low and 
perhaps zero; the hypothetical was that it happened in "a handful of cases," 
but 
I think that's just a hypothetical.  As to what burdens the government imposes 
to avoid "a handful" of deaths of infants, I think that varies from context to 
context.  My sense is that there are quite a few safety regulations -- though 
generally not total bans -- that are indeed justified by the desire to avoid 
just a handful of deaths. 

On the other hand, circumcision involves not a very low risk of death, 
but a 
certainty of loss of part of the body, which in turn involves an uncertain 
possible health benefit and an unknown (and likely very hard to quantify) 
possibility

Re: Religious exemptions in ND

[hamilton02]

Religious institutions are creating the conditions for abuse in MANY 
circumstances.  That is the reality,
and the notion they should be less culpable than the perpetrators in the 
endangerment of children does them
and children no favors.  Religious institutions should not have one iota more 
latitude to endanger children than
anyone else.  And any RFRA or First Amendment decision that decreases 
deterrents to abuse or lets off
those responsible for endangering children is a mistake in my view. 


Not one other person on this listserv has endorsed exempting child safety from 
a RFRA.  Rather, I've heard 
that the rfras don't affect these cases.  As someone involved in dozens, and at 
times hundreds of these cases at once, I can tell you the rfras and First 
Amendment do affect these cases.  For the record, I oppose any religious 
liberty decision or rfra that affects the safety of children.  


For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in 
California this week, and the jury served
up 21 million in punitive damages.  The evidence included a letter ordering 
keeping the abuse secret.  Just one
case out of thousands.


Best to all--  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 Stern 
To: 'religionlaw@lists.ucla.edu' ; 
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND


Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage. 
Marc
 

From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Friday, June 15, 2012 07:30 AM
To: lawyer2...@aol.com ; religionlaw@lists.ucla.edu 

Subject: Re: Religious exemptions in ND
 

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where 
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.




So do a lot of secular and individuals, but they are not capable of wrapping 
themselves 
in the mantle of claims for religious liberty or freedom.   




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: lawyer2974 
To: Law & Religion issues for Law Academics 
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which 
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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_

Re: Religious exemptions in ND

[hamilton02]

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where 
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.




So do a lot of secular and individuals, but they are not capable of wrapping 
themselves 
in the mantle of claims for religious liberty or freedom.   




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: lawyer2974 
To: Law & Religion issues for Law Academics 
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which 
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

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Re: Religious exemptions in ND

[hamilton02]

Other than Conn and Alabama, I'm not aware of another state that eliminated 
"substantial" from the formulation.
Are there others?





I don't know that all bets would need to be off in any case, since other state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.





 
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 
To: Law & Religion issues for Law Academics ; bob 

Sent: Thu, Jun 14, 2012 9:26 pm
Subject: RE: Religious exemptions in ND




I don't know that all bets would need to be off in any case, since other state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On 
Behalf Of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, June 14, 2012 9:15 PM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>>

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: Religious exemptions in ND

[hamilton02]

Presumably the federal Establishment Clause would limit the reach of Measure 3.





 
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: Douglas Laycock 
To: bob ; Law & Religion issues for Law Academics 

Sent: Thu, Jun 14, 2012 9:17 pm
Subject: Re: Religious exemptions in ND


The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>> 

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: Defeat of RFRA constitutional amendment in North Dakota

[hamilton02]

In 3 states, the courts continue to give religious groups First Amendment 
protection from abuse claims.
Missouri, Wisconsin, and Utah.  A majority of states have rejected such 
arguments.  A number have not
yet ruled.  The three states to embrace such a theory have misread the First 
Amendment, as I discuss
in (shameless plug) my article on The Licentiousness in Religious 
Organizations...  


RFRA, as we all know, does not mirror the First Amendment, and the North Dakota 
RFRA would have triggered
strict scrutiny even without a showing that the burden was "substantial" -- so 
we can be certain that it could
be more problematic in child sex abuse and medical neglect cases.




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: Arthur Spitzer 
To: Law & Religion issues for Law Academics 
Sent: Wed, Jun 13, 2012 10:40 pm
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota


"Their lawyers embrace the First Amendment ... to avoid responsiblity for child 
sex abuse all the time."  So should we repeal the First Amendment?  Do courts 
accept these arguments?

Art Spitzer



On Wed, Jun 13, 2012 at 9:28 PM,   wrote:

It opens the door to churches using RFRA as a defense to discovery, liability, 
and penalties in chid sex abuse
cases.  And that means less deterrence.   Their lawyers embrace the First 
Amendment and RFRAs to avoid responsiblity for child sex abuse all the time.


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: Lawyer2974 
To: religionlaw 
Sent: Wed, Jun 13, 2012 5:21 pm
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota


RFRA opens the door to child sex abuse or medical neglect?  Really?!
 
--Don Clark
  Nationwide Special Counsel
  United Church of Christ
 

In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, 
hamilto...@aol.com writes:
  
The truth is that gay rights and child protection communities went all   out in 
North Dakota.  Most Americans when they understand that a RFRA   opens the door 
to discrimination or child sex abuse or medical neglect quickly   cool on the 
extremism of a RFRA.   The difference is public   education
  


  
Marci

On Jun 13, 2012, at 4:39 PM, "Douglas Laycock"wrote:


  
  



NARAL and Planned Parenthood spent a lot of money in a small market to 
defeat this. They did not spend that kind of money in Alabama, so far as I 
know. There have been shrill opponents in of state RFRAs in various 
legislatures, but I am not aware of this kind of effort by NARAL or Planned 
Parenthood.

 

Why now and not before? The polarization over sexual morality is the larger 
cause, and the pending religious liberty claims specifically about 
contraception and emergency contraception are the most immediate and obvious
 cause. NARAL and Planned Parenthood now view religious liberty as a bad 
thing, because it empowers the enemy and puts outside limits on their 
agenda. 

 

Shameless plug: I wrote about this in general terms, pre North Dakota, in 
Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. 
Rev. 407 (2011):

 

http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88&id=417&collection=usjournals&index=journals/udetmr

 

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 Vance R. Koven
Sent: Wednesday, June 13, 2012 4:23 PM
To: Law & Religion issues for Law Academics
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota

 

Behind NARAL's many inaccuracies lies a hint of what I believe may be the 
sociological basis for answering Eugene's question. What follows is purely 
speculative on my part, so just treat it as a hypothesis.

The initial RFRA push was, speaking broadly, in line with a sense by 
evangelical Christians that their agendas, of various types, were 
threatened by secularists ascendant in Washington and among other political 
elites.That was then and this is now. 

Apart from liberal Connecticut and Catholic-dominated Rhode Island, most of 
the state RFRA enactments were in fairly conservative, heartland states. 
Since a lot of other states have achieved the same effect by judicial 
decision or existing constitutional provisions, the leftovers have to be 
looked at as a discrete groupi

Re: Defeat of RFRA constitutional amendment in North Dakota

[hamilton02]

I used to think that religious groups using the First Amendment as a defense in 
child sex abuse cases 
was breathtaking.  It is just a fact.  


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: Lawyer2974 
To: religionlaw 
Sent: Wed, Jun 13, 2012 10:27 pm
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota


The sweeping generalities of these statements are breathtaking
 
-Don Clark
 Nationwide Special Counsel
 United Church of Christ
 

In a message dated 6/13/2012 8:30:15 P.M. Central Daylight Time, 
hamilto...@aol.com writes:
It opens the door to churches using RFRA as a   defense to discovery, 
liability, and penalties in chid sex abuse   
cases.  And that means less deterrence.   Their lawyers embrace   the First 
Amendment and RFRAs to avoid responsiblity for child sex abuse all   the time.
  


  
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: Lawyer2974 
To: religionlaw   
Sent: Wed, Jun 13, 2012 5:21   pm
Subject: Re: Defeat of RFRA constitutional amendment in North   Dakota

  
  
RFRA opens the door to child sex abuse or medical   neglect?  Really?!
  
 
  
--Don Clark
  
  Nationwide Special Counsel
  
  United Church of Christ
  
 
  
  
In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, 
hamilto...@aol.com writes:
  

The truth is that gay rights and child protection communities went all out 
in North Dakota.  Most Americans when they understand that a RFRA opens the 
door to discrimination or child sex abuse or medical neglect quickly cool 
on the extremism of a RFRA.   The difference is public education




Marci

On Jun 13, 2012, at 4:39 PM, "Douglas Laycock"  
wrote:




  

  
NARAL   and Planned Parenthood spent a lot of money in a small market to 
defeat   this. They did not spend that kind of money in Alabama, so far as 
I know.   There have been shrill opponents in of state RFRAs in various 
  legislatures, but I am not aware of this kind of effort by NARAL or   
Planned Parenthood.
  
 
  
Why   now and not before? The polarization over sexual morality is the 
larger   cause, and the pending religious liberty claims specifically about 
  contraception and emergency contraception are the most immediate and  
 obvious cause. NARAL and Planned Parenthood now view religious liberty as  
 a bad thing, because it empowers the enemy and puts outside limits on   
their agenda. 
  
 
  
Shameless   plug: I wrote about this in general terms, pre North Dakota, in 
Sex,   Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. 
Rev.   407 (2011):
  
 
  
http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88&id=417&collection=usjournals&index=journals/udetmr
  
 
  
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 Vance R. Koven
Sent: Wednesday, June 13,   2012 4:23 PM
To: Law & Religion issues for Law   Academics
Subject: Re: Defeat of RFRA constitutional amendment   in North Dakota
  
 
  
Behind NARAL's many   inaccuracies lies a hint of what I believe may be the 
sociological basis   for answering Eugene's question. What follows is 
purely speculative on my   part, so just treat it as a hypothesis.

The initial RFRA push was,   speaking broadly, in line with a sense by 
evangelical Christians that   their agendas, of various types, were 
threatened by secularists ascendant   in Washington and among other 
political elites.That was then and this is   now. 

Apart from liberal Connecticut and Catholic-dominated Rhode   Island, most 
of the state RFRA enactments were in fairly conservative,   heartland 
states. Since a lot of other states have achieved the same   effect by 
judicial decision or existing constitutional provisions, the   leftovers 
have to be looked at as a discrete grouping. The cross-hatched   states, 
with the exception of New Hampshire, are all liberal, secularist   places 
where you would expect Smith to be popular among   policy-makers and not 
totally anathema to voters.

The remaining   states without any RFRA-like policies but that haven't 
firmly declared   themselves as following Smith, with the exception

Re: Defeat of RFRA constitutional amendment in North Dakota

[hamilton02]

It opens the door to churches using RFRA as a defense to discovery, liability, 
and penalties in chid sex abuse
cases.  And that means less deterrence.   Their lawyers embrace the First 
Amendment and RFRAs to avoid responsiblity for child sex abuse all the time.


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: Lawyer2974 
To: religionlaw 
Sent: Wed, Jun 13, 2012 5:21 pm
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota


RFRA opens the door to child sex abuse or medical neglect?  Really?!
 
--Don Clark
  Nationwide Special Counsel
  United Church of Christ
 

In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, 
hamilto...@aol.com writes:
  
The truth is that gay rights and child protection communities went all   out in 
North Dakota.  Most Americans when they understand that a RFRA   opens the door 
to discrimination or child sex abuse or medical neglect quickly   cool on the 
extremism of a RFRA.   The difference is public   education
  


  
Marci

On Jun 13, 2012, at 4:39 PM, "Douglas Laycock"wrote:


  
  



NARAL and Planned Parenthood spent a lot of money in a small market to 
defeat this. They did not spend that kind of money in Alabama, so far as I 
know. There have been shrill opponents in of state RFRAs in various 
legislatures, but I am not aware of this kind of effort by NARAL or Planned 
Parenthood.

 

Why now and not before? The polarization over sexual morality is the larger 
cause, and the pending religious liberty claims specifically about 
contraception and emergency contraception are the most immediate and obvious
 cause. NARAL and Planned Parenthood now view religious liberty as a bad 
thing, because it empowers the enemy and puts outside limits on their 
agenda. 

 

Shameless plug: I wrote about this in general terms, pre North Dakota, in 
Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. 
Rev. 407 (2011):

 

http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88&id=417&collection=usjournals&index=journals/udetmr

 

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 Vance R. Koven
Sent: Wednesday, June 13, 2012 4:23 PM
To: Law & Religion issues for Law Academics
Subject: Re: Defeat of RFRA constitutional amendment in North Dakota

 

Behind NARAL's many inaccuracies lies a hint of what I believe may be the 
sociological basis for answering Eugene's question. What follows is purely 
speculative on my part, so just treat it as a hypothesis.

The initial RFRA push was, speaking broadly, in line with a sense by 
evangelical Christians that their agendas, of various types, were 
threatened by secularists ascendant in Washington and among other political 
elites.That was then and this is now. 

Apart from liberal Connecticut and Catholic-dominated Rhode Island, most of 
the state RFRA enactments were in fairly conservative, heartland states. 
Since a lot of other states have achieved the same effect by judicial 
decision or existing constitutional provisions, the leftovers have to be 
looked at as a discrete grouping. The cross-hatched states, with the 
exception of New Hampshire, are all liberal, secularist places where you 
would expect Smith to be popular among policy-makers and not totally 
anathema to voters.

The remaining states without any RFRA-like policies but that haven't firmly 
declared themselves as following Smith, with the exceptions of California, 
Hawaii and Vermont, are also mostly conservative heartland states, but they 
now have a different actuating fear, which I think is the fear (rational or 
not) of Islamic demands for religious-cultural exceptions from generally 
applicable laws. This fear directly offsets the fears of evangelical 
Christians, and is probably shared by a good number of them. NARAL's 
reference to domestic violence and child abuse look, in that context, like 
code words for the domestic-relations aspects of Sharia. Obviously, no RFRA 
statute immunizes domestic violence, but if NARAL said in so many words 
what it thought the voters really wanted to hear, its anti-Islamic thrust 
would be too obvious.

  

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Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota

[hamilton02]

Eugene's division of RFRA and non-RFRA jurisdictions is also oversimplified.  
There were RFRAs like Alabama's, where there is no substantial before burden 
(that was another fault with North Dakota's formulation).  But as RFRAs 
developed, the dangers of permitting large classes of individuals to break the 
law simply because they are religious became apparent, pure RFRAs became a 
thing of the past.  RFRAs started to include exemptions for arenas, e.g., in PA 
for crimes against children.  


 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: Vance R. Koven 
To: Law & Religion issues for Law Academics 
Sent: Wed, Jun 13, 2012 8:58 pm
Subject: Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota


I should clarify that I was not attempting to address the North Dakota vote 
specifically, which of course could have been influenced by a number of 
particularized factors, but was addressing Eugene's broader question of why the 
RFRA enactment engine nationally seems to be sputtering.


On Wed, Jun 13, 2012 at 8:26 PM, Finkelman, Paul  
 wrote:


Among many other reasons it may reflect hostility to Native Americans.

Connected by DROID on Verizon Wireless


-Original message-

From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 

Sent: Wed, Jun 13, 2012 20:49:25 GMT+00:00
Subject: PS RE: Defeat of RFRA constitutional amendment in North Dakota





I meant to say that Vance’s point about the fears of Muslims and Sharia law is 
surely also part of the explanation. The evangelical rank and file conceives 
religious liberty mostly in terms of their own religious liberty – they are 
certainly not the only ones, but as Vance notes, they are an important voting 
block on this issue – and when attention is focused on religious liberty for 
Muslims instead, many of them will take a different view.  So that no doubt 
affected some votes. But it was NARAL and Planned Parenthood that spent the 
money.
 

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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-- 
Vance R. Koven
Boston, MA USA
vrko...@world.std.com

 
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Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota

[hamilton02]

Nor for Native Americans abused by Catholic priests.   For them, religious 
liberty has meant less freedom, not more.


 
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: Finkelman, Paul  

To: religionlaw 
Sent: Wed, Jun 13, 2012 8:32 pm
Subject: Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota


Among many other reasons it may reflect hostility to Native Americans.

Connected by DROID on Verizon Wireless


-Original message-

From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 

Sent: Wed, Jun 13, 2012 20:49:25 GMT+00:00
Subject: PS RE: Defeat of RFRA constitutional amendment in North Dakota




I meant to say that Vance’s point about the fears of Muslims and Sharia law is 
surely also part of the explanation. The evangelical rank and file conceives 
religious liberty mostly in terms of their own religious liberty – they are 
certainly not the only ones, but as Vance notes, they are an important voting 
block on this issue – and when attention is focused on religious liberty for 
Muslims instead, many of them will take a different view.  So that no doubt 
affected some votes. But it was NARAL and Planned Parenthood that spent the 
money.
 

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: Maine town: No parking lot taxes for charities…except for churches

[hamilton02]

Maine has a strong state establishment clause as I remember.  Would that be the 
reason
for the "differential" treatment?  The question here is whether parsonages and 
church parking lots
are similarly situated to charitable organizations.  If so, there might be a 
claim.  If not, it will
be a tough slog for the ADF.







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: Rick Duncan 
To: Law & Religion issues for Law Academics 
Sent: Wed, Apr 25, 2012 7:35 pm
Subject: Maine town: No parking lot taxes for charities…except for churches




FYI. ADF News Release:


FOR IMMEDIATE RELEASE



Maine town: No parking lot taxes for charities…except for churches

ADF files lawsuit to challenge tax assessed against church but not other 
charitable groups
Wednesday, April 25, 2012



KNOX, Maine — Alliance Defense Fund attorneys representing a Rockland church 
filed suit against the city Monday in Maine Superior Court in Knox.

The city granted the church a property tax exemption for its building but not 
for its parking lot and parsonage even though the city attorney admitted that 
all three would be exempt if the church were strictly a charitable 
organization. The church makes its facilities available to a wide range of 
charitable and community groups and events.

“Churches shouldn’t live in fear of being targeted by the government in ways 
other groups aren’t,” said ADF Senior Legal Counsel Joel Oster. “Churches are 
at a distinct disadvantage under the current law, which grants a tax exemption 
for the entire property of a non-church charitable group but only grants a 
partial exemption for churches. It’s unconstitutional to single out churches to 
be treated differently simply because they are churches while allowing 
virtually identical non-religious uses to have favorable tax treatment.”

According to the complaint filed in state court, Aldersgate United Methodist 
Church should have had its parking lot and parsonage exemption request granted 
under the church tax exemption statute but nonetheless additionally qualifies 
as a charitable organization.

“The Church qualifies as a charitable organization for all three of its 
properties because it provides education and religious instruction to the 
general public on how to live moral and healthy lives--lives that are not 
dependent on the government and that care for and help others in times of 
need,” the complaint states. “In addition, the Church makes its facilities 
available to a wide variety of public groups without charge, such as local 
orchestras, children’s development services, and branches of Alcoholics 
Anonymous and Narcotics Anonymous. The Church also provides financial support 
and volunteer assistance to local charities and ministry outreaches.”

Nonetheless, the city assessor only granted a tax exemption for the church’s 
main building and grounds. The assessor denied exemptions for the parking lot 
and parsonage. In a brief filed with the Board of Assessment Review, the city 
attorney admitted, “Were Aldersgate also entitled to exemption as a charitable 
and benevolent organization, the entire property would be exempt from taxation.”

The lawsuit, Aldersgate United Methodist Church v. City of Rockland, argues 
that the differential treatment between charitable institutions and churches is 
unconstitutional. Portland attorney Stephen C. Whiting, one of more than 2,100 
attorneys in the ADF alliance, is serving as local counsel.




Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)






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

[hamilton02]

The alternative is to focus on what is in the best interests of the child, 
e.g., education, health.  Not being forced to
get married at 13 and have children...   

Marci


The religious status quo could also be a non-observant or explicitly atheistic 
r agnostic household, which would also have to be respected under the rule that 
ugene supports. The alternative is for the courts to determine which religions 
re "extremist," a questionable role for the judiciary. 
Richard T. Foltin
irector of National and Legislative Affairs 
ffice of Government and International Affairs
: 202-785-5463,  f: 202-659-9896
olt...@ajc.org




 
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: Richard Foltin 
To: Law & Religion issues for Law Academics 
Sent: Fri, Apr 20, 2012 8:32 am
Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing 
as a factor in custody disputes


The religious status quo could also be a non-observant or explicitly atheistic 
r agnostic household, which would also have to be respected under the rule that 
ugene supports. The alternative is for the courts to determine which religions 
re "extremist," a questionable role for the judiciary. 
Richard T. Foltin
irector of National and Legislative Affairs 
ffice of Government and International Affairs
: 202-785-5463,  f: 202-659-9896
olt...@ajc.org
 
  
oin us at the AJC Global Forum 2012, May 2-4 in Washington, D.C.
EGISTER NOW
ake Action with AJC by visiting the Action Center 
OTICE
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Original Message-
rom: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 
n Behalf Of Marci Hamilton
ent: Friday, April 20, 2012 9:24 AM
o: Law & Religion issues for Law Academics
c: Law & Religion issues for Law Academics
ubject: Re: Mothers leaving ultra-religious groups, and religious upbringing as 
 factor in custody disputes
I don't think it is a difficult question but disagree that the rule is sound.   
he standard should be the best interest of the child.  Stability in an 
xtremist religion is often not in the child's best interest, especially if the 
hild is a girl.   
or example, the FLDS.  The best interest of the child can also trump mainstream 
eligions depending on the facts of the case.  The focus must be the child.
This sort of assumption that religious status quo is a social good is an 
nconstitutional preference for religion.
his is a good example of when the application of a neutral generally applicable 
rinciple can serve the greater good more directly than a religious preference.
Marci
Marci A. Hamilton
aul R. Verkuil Chair in Public Law
enjamin N. Cardozo School of Law
eshiva University
ew York, NY 10003
On Apr 20, 2012, at 9:09 AM, "Volokh, Eugene"  wrote:
> There's an interesting op-ed at 
> http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html 
hat faults the child custody law preference for stability of religious 
pbringing:  When women leave arranged marriages in the ultra-Orthodox Jewish 
ommunity -- and leave ultra-Orthodoxy more general -- they may sometimes lose 
ustody of their children on the grounds that the person who remains within the 
ommunity is more able to provide stability of religious upbringing.  
 
 I'm inclined to say that this rule (which of course could equally apply to 
athers who leave a religious community as well, though I don't know how 
elatively frequent such departures are) is a sound one, for children who are 
ld enough to have some experience with the religion and thus some stake in 
tability of religious upbringing.  To be sure, the rule does create some 
ressure against departing the faith, since often someone who leaves the group 
an no longer raise the children in the same religious environment even if she's 
illing to, because the group might no longer accept her; but this seems in this 
ituation to be an acceptable and denominationally neutral rule (especially if 
t is equally applied to a parent who moves into a ultra-religious community 
hich disrupts the stability of the children's nonreligious, or only mildly 
eligious, upbringing)

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

[hamilton02]

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 
To: Law & Religion issues for Law Academics 
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
challenge

I think that at least part of the objections in Europe to serving only halal 
meat in some restaurants involves objections to methods of halal animal 
slaughter which (like kosher slaughter) may not be consistent with European 
standards for humane treatment of animals in their use as food.  "Halal only" 
means all diners are "complicit" in the that particular  slaughtering process.

On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. 
mailto:howard.fried...@utoledo.edu>> 
wrote:

It is interesting to compare reactions in Europe to similar situations. In 
2010, 
French politicians strongly criticized a restaurant chain that decided to serve 
only halal meat in 8 of its restaurants with a large Muslim clientele. 
Agriculture Minister Bruno Le Maire said: "When they remove all the pork from a 
restaurant open to the public, I think they fall into communalism, which is 
against the principles and the spirit of the French republic."
See: 
http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html

In 2007 in Britain, a primary school in Kingsgate attempted to accommodate 
religious needs of its growing Muslim student body by serving only Halal meat 
in 
its lunch menus. A number of parents objected, arguing that the school was 
forcing their children to to conform to "someone else's culture."
See 
http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html


Howard Friedman

messages to others.

 


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Re: Cabbies vs. lawyers

[hamilton02]

I rarely if ever talk about "nonbelievers" because they are rare in the US.   
My point was that the
cabbie was engaging in religious discrimination by refusing to carry someone 
whose conduct violated
his religious beliefs.  And that the one carrying the wine was operating in 
their own religious world view.  
The cabbie is like the employer who refuses to hire based on religion (his 
own). 





 
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: Douglas Laycock 
To: hamilton02 ; dlaycock ; 
religionlaw 
Sent: Tue, Mar 6, 2012 10:29 pm
Subject: Re: Cabbies vs. lawyers


I apologize if I was too quick to generalize. Maybe you meant that it is OK to 
make religious judgments about nonbelievers, but forbidden to make religious 
judgments about drinkers. An implicit distinction that I completely missed.

On Tue, 6 Mar 2012 22:15:53 -0500 (EST)
 hamilto...@aol.com wrote:
>
>Doug--  This is actually hilarious.  Reread my previous posts.  You are not 
even in the ballpark, as attested
>to your notion that I was ever discussing "religious judgments about 
nonbelievers."  I'm almost certain that
>
>I was talking about believers and believers.  I haven't "backed off" of 
whatever you think I said, because
>I never said it.
>
>
>In any event, this horse is officially beaten in my view.  
>
>
>Marci
>
>
>
>
>
>I already said, in response to Sandy, that if a religious individual or group 
>occupies a blocking position, the balance of interests changes. Whether they 
>occupy such a position is a question of fact. You seem to assume axiomatically 
>that they always prevent people from finding cab, or whatever other service 
>we're talking about.
>
>But at least you seem to have backed off finding a problem with them making 
>religious judgments about nonbelievers.
>
>
>
>
> 
>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: Douglas Laycock 
>To: hamilton02 ; dlaycock ; 
religionlaw 
>Sent: Tue, Mar 6, 2012 9:38 pm
>Subject: Re: Cabbies vs. lawyers
>
>
>I already said, in response to Sandy, that if a religious individual or group 
>occupies a blocking position, the balance of interests changes. Whether they 
>occupy such a position is a question of fact. You seem to assume axiomatically 
>that they always prevent people from finding cab, or whatever other service 
>we're talking about.
>
>But at least you seem to have backed off finding a problem with them making 
>religious judgments about nonbelievers.
>
>On Tue, 6 Mar 2012 21:35:11 -0500 (EST)
> hamilto...@aol.com wrote:
>>Doug--   I don't know who the royal "we" is in your comment, but I'm not 
making 
>a "complaint."  I'm
>>making what is surely an obvious philosophical, analytical point.  The person 
>carrying the wine is
>>not being picked up because they are carrying wine, which presumably is 
>permitted in their religious
>>world view.  If you are going to accommodate the religious cabbie, you are 
>going to burden the religious
>>passenger with wine, assuming a finite number of cabbies.  That is why a 
>neutral, common carrier rule is
>>preferable to the religion-specific exemption from service you seem to be 
>advocating.  I assume you favor
>>the federal civil right that forbids a private employer from discriminating 
>>on 

>the basis of religion?  How is this
>>any different?  A cab is not a religious organization.
>>
>>
>>
>>
>>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: Douglas Laycock 
>>To: Law & Religion issues for Law Academics ; 
>hamilton02 
>>Sent: Tue, Mar 6, 2012 9:15 pm
>>Subject: Re: Cabbies vs. lawyers
>>
>>
>>I thought we were concerned about people getting home from he airport. 
>>
>>Now the complaint is that the cabbie "is making a religious judgment about 
>>the 

>>passenger."
>>
>>A "religious judgment" is a form of belief, and I thought it was common 
>>ground 

>>that belief is pro

Re: Requirement that cabbies transport alcohol = "tiny burden"?

[hamilton02]

The cabbies no longer had a problem once the imams spoke, so your reference to 
their own religious understandings
is nonsensical in this case.  Just for the record, Doug, I actually know the 
doctrine, so I get that one can have a view
different from one's religious leaders.I also read all of the cases saying 
that there is an absolute right to believe. 


I think there is real force to Steve's suggestion about common carrier rules 
and standards.  No one defending the cabbies, particularly Doug, has adequately 
explained away the need for them.  And I am not persuaded that this is not like 
the race
cases.  The point of the industry is to transport people, and the imposition of 
selection not related to travel is problematic.


 No one, including cabbies owns "their industry."  That is a rhetorical sleight 
of hand that attempts to build in some kind of right to choose any industry you 
want.  The Court has assigned such interests the most deferential level of 
rationality review, so that is a true non-starter.  Where is the concept of 
personal responsibility, personal choice, and accepting the consequences of 
one's beliefs?  The world, particularly the transportation industry, should not 
have to be conformed to the views of any one religious set of actors.  The 
Amish are not going after high-tech jobs and then arguing that they don't 
believe in high tech, are they?  


You tipped your hand when you referred to those whose religious world view 
permits alcohol consumption as "looser" and those who object as having more 
"scrupulous morals."  Your analysis appears to be more about your preferred 
public policy vision than the law.


 
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: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 
Sent: Wed, Mar 7, 2012 8:13 am
Subject: RE: Requirement that cabbies transport alcohol = "tiny burden"?



The exemption with lights to alert passengers would not have changed the 
culture. It would not have significantly affected anyone’s right to drink 
alcohol, or to transport alcohol. It would have allowed the scrupulous Muslim 
cabbies to live their own religious values.
 
Hostility to religious liberty for a group that is doing no one any harm very 
often reflects hostility to the group. Sometimes it reflects hostility to all 
religion or to all exemptions for religious liberty, which is not much better. 
But when there is a vast outpouring on a particular claim, disproportionate to 
the usual debate over religious exemptions, it is more sensible to infer the 
first explanation, hostility to the group.
 
Perhaps some imams said the cabbies were misreading the Koran. Good for the 
imams. But not relevant to the cabbies’ understanding of their own religious 
obligations, unless the imams persuade the cabbies.
 
The solution that Greg and Eugene describe was ingenious, and the reaction that 
Greg describes is appalling. The problem we have in so many of these various 
culture-war issues is that each side wants to write its own values into law, 
and insist that the other side conform in any interaction that is the least bit 
public. It is not enough that I can transport alcohol; Muslim cabbies must help 
me transport it or lose their jobs and be barred from their industry. We cannot 
restore social peace until we remember that in a regime of individual liberty, 
the goal is to let both sides live their own values. 
 

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 Marci Hamilton
Sent: Tuesday, March 06, 2012 5:59 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






On Mar 6, 2012, at 4:48 PM, "Sisk, Gregory C."  wrote:


As Eugene suggestions, the accommodation by use of lights for Mus

Re: Cabbies vs. lawyers

[hamilton02]

Doug--   I don't know who the royal "we" is in your comment, but I'm not making 
a "complaint."  I'm
making what is surely an obvious philosophical, analytical point.  The person 
carrying the wine is
not being picked up because they are carrying wine, which presumably is 
permitted in their religious
world view.  If you are going to accommodate the religious cabbie, you are 
going to burden the religious
passenger with wine, assuming a finite number of cabbies.  That is why a 
neutral, common carrier rule is
preferable to the religion-specific exemption from service you seem to be 
advocating.  I assume you favor
the federal civil right that forbids a private employer from discriminating on 
the basis of religion?  How is this
any different?  A cab is not a religious organization.




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: Douglas Laycock 
To: Law & Religion issues for Law Academics ; 
hamilton02 
Sent: Tue, Mar 6, 2012 9:15 pm
Subject: Re: Cabbies vs. lawyers


I thought we were concerned about people getting home from he airport. 

Now the complaint is that the cabbie "is making a religious judgment about the 
passenger."

A "religious judgment" is a form of belief, and I thought it was common ground 
that belief is protected absolutely, as the Court said in Cantwell v. 
Connecticut. Lord knows we are all making judgments about the cabbies. 

Those of us who drink, or who have looser standards on any other issue than 
more 
morally scupulous adherents of various religions, certainly cannot have a right 
for those more scuprulous souls not to make judgments about us. 

On Tue, 6 Mar 2012 20:52:35 -0500 (EST)
 hamilto...@aol.com wrote:
>That is, in my view, a misstatement of the facts.  The person carrying the 
alcohol holds a religious worldview that
>permits them to drink, carry, and transport alcohol.  The cabdriver refusing 
>to 
transport them is making a religious judgment about the passenger.  The only 
passengers you can be certain this cabdriver will always transport are those 
with the same religious worldview.  Discounting the religious world view of the 
passenger leads to a one-sided analysis.
>
>
>Again, just as in the contraception context, the contemporary discourse 
generally has discounted the religious beliefs of the
>person who is affected by the accommodation.  You aren't going to find many 
pairings of people in the US where both
>don't have some religious beliefs/world view.  Religious claimants who want 
accommodation freight their arguments
>with claims of the "religious" vs. the "secular", but that is a rhetorical 
ruse.  In fact, a religious individual demanding an accommodation more often 
than not burdens someone who does not share their religious world view but who 
has a competing
>world view.   
>
>
>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 
>
>
>
>
>
>They aren’t discriminating against anyone on the basis of that person’s 
religion. The cabbies’ own religious beliefs are leading them to discriminate 
against people who are openly carrying alcoholic beverages. I’m not sure I know 
of any religion that calls on its adherents to carry alcoholic beverages openly.
> 
>
>Mark S. Scarberry
>Pepperdine Univ. School of Law
>Malibu, CA 90263
>(310)506-4667
>
> 
>
>
>
>
> 
>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: Scarberry, Mark 
>To: Law & Religion issues for Law Academics 
>Sent: Tue, Mar 6, 2012 8:40 pm
>Subject: RE: Cabbies vs. lawyers
>
>
>
>They aren’t discriminating against anyone on the basis of that person’s 
religion. The cabbies’ own religious beliefs are leading them to discriminate 
against people who are openly carrying alcoholic beverages. I’m not sure I know 
of any religion that calls on its adherents to carry alcoholic beverages openly.
> 
>
>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 Steven Jamar
>Sent: Tuesday, March 06, 2012 5:18 PM
>To: Law & Religion issues for Law Academics
>Subject: Re: Cabbies vs. lawyers
>
> 
>
>Are not the cabbies discriminating against customers on the basis of religi

Re: Cabbies vs. lawyers

[hamilton02]

Doug--  This is actually hilarious.  Reread my previous posts.  You are not 
even in the ballpark, as attested
to your notion that I was ever discussing "religious judgments about 
nonbelievers."  I'm almost certain that

I was talking about believers and believers.  I haven't "backed off" of 
whatever you think I said, because
I never said it.


In any event, this horse is officially beaten in my view.  


Marci





I already said, in response to Sandy, that if a religious individual or group 
occupies a blocking position, the balance of interests changes. Whether they 
occupy such a position is a question of fact. You seem to assume axiomatically 
that they always prevent people from finding cab, or whatever other service 
we're talking about.

But at least you seem to have backed off finding a problem with them making 
religious judgments about nonbelievers.




 
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: Douglas Laycock 
To: hamilton02 ; dlaycock ; 
religionlaw 
Sent: Tue, Mar 6, 2012 9:38 pm
Subject: Re: Cabbies vs. lawyers


I already said, in response to Sandy, that if a religious individual or group 
occupies a blocking position, the balance of interests changes. Whether they 
occupy such a position is a question of fact. You seem to assume axiomatically 
that they always prevent people from finding cab, or whatever other service 
we're talking about.

But at least you seem to have backed off finding a problem with them making 
religious judgments about nonbelievers.

On Tue, 6 Mar 2012 21:35:11 -0500 (EST)
 hamilto...@aol.com wrote:
>Doug--   I don't know who the royal "we" is in your comment, but I'm not 
>making 
a "complaint."  I'm
>making what is surely an obvious philosophical, analytical point.  The person 
carrying the wine is
>not being picked up because they are carrying wine, which presumably is 
permitted in their religious
>world view.  If you are going to accommodate the religious cabbie, you are 
going to burden the religious
>passenger with wine, assuming a finite number of cabbies.  That is why a 
neutral, common carrier rule is
>preferable to the religion-specific exemption from service you seem to be 
advocating.  I assume you favor
>the federal civil right that forbids a private employer from discriminating on 
the basis of religion?  How is this
>any different?  A cab is not a religious organization.
>
>
>
>
>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: Douglas Laycock 
>To: Law & Religion issues for Law Academics ; 
hamilton02 
>Sent: Tue, Mar 6, 2012 9:15 pm
>Subject: Re: Cabbies vs. lawyers
>
>
>I thought we were concerned about people getting home from he airport. 
>
>Now the complaint is that the cabbie "is making a religious judgment about the 
>passenger."
>
>A "religious judgment" is a form of belief, and I thought it was common ground 
>that belief is protected absolutely, as the Court said in Cantwell v. 
>Connecticut. Lord knows we are all making judgments about the cabbies. 
>
>Those of us who drink, or who have looser standards on any other issue than 
more 
>morally scupulous adherents of various religions, certainly cannot have a 
>right 

>for those more scuprulous souls not to make judgments about us. 
>
>On Tue, 6 Mar 2012 20:52:35 -0500 (EST)
> hamilto...@aol.com wrote:
>>That is, in my view, a misstatement of the facts.  The person carrying the 
>alcohol holds a religious worldview that
>>permits them to drink, carry, and transport alcohol.  The cabdriver refusing 
to 
>transport them is making a religious judgment about the passenger.  The only 
>passengers you can be certain this cabdriver will always transport are those 
>with the same religious worldview.  Discounting the religious world view of 
>the 

>passenger leads to a one-sided analysis.
>>
>>
>>Again, just as in the contraception context, the contemporary discourse 
>generally has discounted the religious beliefs of the
>>person who is affected by the accommodation.  You aren't going to find many 
>pairings of people in the US where both
>>don't have some religious beliefs/world view.  Religious claimants who want 
>accommodation freight their arguments
>>with claims of the "religious" vs. the "secular", but that is a rhetorical 
>ruse.  In fact, a religious

Re: Requirement that cabbies transport alcohol = "tiny burden"?

[hamilton02]

I disagree.  I was in eastern Europe teaching students and talking to scholars 
from the Balkans in Budapest a little less than
20 years ago.  Here is how it was described:  There was a time when people 
would get on public transportation and no one was conscious of the religion of 
the person sitting next to you.  They lived in a shared culture where one's 
religious beliefs were not a barrier to riding on public transportation 
together, and religion was not the only identity of each citizen.  As religious 
identities developed between competing sects, though, people started to 
fear/distrust/hate the "nonbeliever" (the believer in another religious world 
view).  Eventually, they would refuse to sit near a believer from another 
faith, until eventually they would only sit or stand near those of the same 
faith.  In the end, you could not look at another person without first asking 
what their religion was.  The culture fell apart on these faultlines.  


I also strongly disagree with the minority/majority talk about religion. It is 
neither accurate numerically nor is it indicative
of how accommodations/exemptions occur.  There is no majority religion in the 
US.  Presbyterians are not Baptists are not
Methodists, so "Protestants" is an artificial catch-all.  The RCC is the 
largest religion but it does not have a "majority" of Americans within it.   


Exemptions are obtained by politically savvy/connected lobbyists for various 
religious entities and almost never reflect a majoritarian view.  Christian 
Scientists have obtained exemptions from medical neglect statutes because they 
can work the system, not because their views reflect any majority anywhere.  
The Native American Church has been able to obtain exemptions for peyote use in 
virtually every state requested and they are not a majority in any sense.  The 
key is the ability to work the political system to one's advantage, NOT how 
many there are of any one denomination.


Marci








In my judgment, Balkanization is much more likely to occur when religious 
minorities are told that the only way that the can obtain accommodations of 
theirreligious practices is by living in a community in which there are enough 
members of their faith to exercise significant political power.
 
Religious accommodations allow people of different faiths to live together in 
religiously heterogeneous, integrated communities. The rejection of 
accommodationsnot only forces people to find another line of work. It persuades 
them that they need to find another place to live. That’s Balkanization.
 
Alan




 
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: Alan Brownstein 
To: Law & Religion issues for Law Academics 
Sent: Tue, Mar 6, 2012 7:10 pm
Subject: RE: Requirement that cabbies transport alcohol = "tiny burden"?



In my judgment, Balkanization is much more likely to occur when religious 
minorities are told that the only way that the can obtain accommodations of 
their religious practices is by living in a community in which there are enough 
members of their faith to exercise significant political power.
 
Religious accommodations allow people of different faiths to live together in 
religiously heterogeneous, integrated communities. The rejection of 
accommodations not only forces people to find another line of work. It 
persuades them that they need to find another place to live. That’s 
Balkanization.
 
Alan
 

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









 
___
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

Re: Cabbies vs. lawyers

[hamilton02]

That is, in my view, a misstatement of the facts.  The person carrying the 
alcohol holds a religious worldview that
permits them to drink, carry, and transport alcohol.  The cabdriver refusing to 
transport them is making a religious judgment about the passenger.  The only 
passengers you can be certain this cabdriver will always transport are those 
with the same religious worldview.  Discounting the religious world view of the 
passenger leads to a one-sided analysis.


Again, just as in the contraception context, the contemporary discourse 
generally has discounted the religious beliefs of the
person who is affected by the accommodation.  You aren't going to find many 
pairings of people in the US where both
don't have some religious beliefs/world view.  Religious claimants who want 
accommodation freight their arguments
with claims of the "religious" vs. the "secular", but that is a rhetorical 
ruse.  In fact, a religious individual demanding an accommodation more often 
than not burdens someone who does not share their religious world view but who 
has a competing
world view.   


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 





They aren’t discriminating against anyone on the basis of that person’s 
religion. The cabbies’ own religious beliefs are leading them to discriminate 
against people who are openly carrying alcoholic beverages. I’m not sure I know 
of any religion that calls on its adherents to carry alcoholic beverages openly.
 

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

 




 
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: Scarberry, Mark 
To: Law & Religion issues for Law Academics 
Sent: Tue, Mar 6, 2012 8:40 pm
Subject: RE: Cabbies vs. lawyers



They aren’t discriminating against anyone on the basis of that person’s 
religion. The cabbies’ own religious beliefs are leading them to discriminate 
against people who are openly carrying alcoholic beverages. I’m not sure I know 
of any religion that calls on its adherents to carry alcoholic beverages openly.
 

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 Steven Jamar
Sent: Tuesday, March 06, 2012 5:18 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cabbies vs. lawyers

 

Are not the cabbies discriminating against customers on the basis of religion? 
Or is the alcohol proxy enough to remove that taint?

Sent from my iPhone


On Mar 6, 2012, at 7:38 PM, "Volokh, Eugene"  wrote:


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,

Re: Hosanna-Tabor-- apologies

[Hamilton02]

My apologies for inadvertently sending a private message to the  group.
So much sending emails from my new IPhone...
 

Marci A.  Hamilton
36 Timber Knoll Drive
Washington Crossing, PA  18977
215-353-8984

Paul R. Verkuil Chair in Public Law
Benjamin N.  Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY  10003

@Marci_Hamilton 
_www.facebook.com/professormarciahamilton_ 
(http://www.facebook.com/professormarciahamilton) 



In a message dated 1/12/2012 11:35:09 A.M. Eastern Standard Time,  
mae.kuykend...@law.msu.edu writes:

I wonder if there are any data on employment by religious institutions,  
classified by rough job category.  The nature of the problem relates to  the 
scope of persons affected, as Ted explains.  It could be large, it  could be 
small.  There must be a range of roles with clear connections to  
propagating the faith/doctrine and others that could not plausibly be so  
classified.  
Is there any statistical base to inform a judgment about  scope?  If we 
assume almost no one would suggest ministers are not  appropriately exempt from 
state regulation (other than for bad acts that  implicate criminal 
misconduct, and even there churches have been aggressive  about seeking to 
avoid 
state jurisdiction), then the question becomes how many  people have employment 
with religious institutions in ordinary jobs that  might be 
re-characterized as ministerial by a clever church lawyer and how  many 
(janitors?) might 
be, incontestably, outside that category. 
 
But suppose a church claims that janitors are trained in the proper godly  
approach to cleaning and are responsible for distributing appropriate  
literature throughout the building and serving as an example to their brothers  
and sisters in the flock?  Might they be ministers?
 
mk

>>> Theodore Ruger   1/12/2012 11:15 AM >>>
Coming late to this thread with some  (too-long) thoughts about how this 
may play out in future litigation . . .  

I share Mike Dorf’s concern about the vagueness of the Court’s  standard 
under which employees of religious organizations can now be  classified as “
ministers” for the purposes of the exception, particularly  given the 
unwillingness of lower court judges to seriously examine the claims  about 
religious doctrine that churches make during this kind of  litigation.   
(Speaking 
of which, was there any record evidence to  support the Missouri Synod’s 
claim that as a matter of faith it “prefers to  resolve disputes among 
Christians internally”, or did the district court  accept it without inquiry?   
Can 
every religion invoke, ipse dixit,  such a “spiritual” preference for 
internal dispute resolution, simply by  virtue of being a religious group?   
What 
about those Catholic  archdioceses whose bishops in 2004 announced often in 
the mainstream media  that John Kerry was ineligible to receive communion 
because of his pro-choice  views – in subsequent employment litigation should 
their schools be able to  assert an absolute and unexamined spiritual 
preference for keeping disputes  among Catholics private?)

I suspect that federal courts will continue  to be extremely deferential in 
scrutinizing such claims in litigation, which  in turn creates strong 
incentives for religious groups and their attorneys to  be extremely capacious 
after the fact about who they characterize as  “ministerial” whenever an 
employment dispute arises.   And such  broad ex post characterizations will 
have 
the effect of substantially  curtailing the employment rights of large 
numbers of employees who may not  even know they are so classified, and 
certainly may not know about the effect  of the classification on their 
workplace 
rights.

This concern leads me  to imagine two possible ex ante measures – one a 
reporting rule and one a  disclosure requirement – that in my view would be 
both constitutionally  permissible and sound policy, though I’m sure some will 
disagree on one or  both counts.   First, most of these religious 
organizations already  file 501(c)(3) returns with the IRS each year – why 
shouldn’t 
the IRS require,  among the many other disclosures on the return, a schedule 
of the  organization's employees each year classified as “lay” or “
ministerial.”   Minimally intrusive, serves a clear secular purpose in guiding 
the 
EEOC’s  investigatory behavior should an employee in either category file a 
complaint,  and would discourage churches’ ex post expansions of the 
category during  litigation. 

More substantial would be a disclosure requirement imposed  by federal or 
state law that would require religious organizations to provide  all persons 
hired or reclassified as “ministerial” with prior notice that such  status 
adversely effects their rights to sue as employees under current  law.   
Such disclosure rules are commonly applied to non-religious  employers (for 
instance when someone is hired under a contract that mandates  arbitration to 
resolve employment dis

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

[Hamilton02]

Rick-- I hear you.  The Court indicates that what is a "minister" will  be 
fact intensive in each case.
There are lay teachers in a wide variety of contexts and a wide variety of  
religious settings.  It will
be interesting to learn whether the courts treat, e.g., a coach who only  
coaches at a school (and does not teach during the day) as a "lay teacher" 
for  these purposes.
 
Marci
 
 

Marci A.  Hamilton
36 Timber Knoll Drive
Washington Crossing, PA  18977
215-353-8984

Paul R. Verkuil Chair in Public Law
Benjamin N.  Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY  10003

@Marci_Hamilton 
_www.facebook.com/professormarciahamilton_ 
(http://www.facebook.com/professormarciahamilton) 



In a message dated 1/12/2012 12:16:30 P.M. Eastern Standard Time,  
rgarn...@nd.edu writes:

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_ 
(http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235)  
Blogs: 
_Prawfsblawg_ (http://prawfsblawg.blogs.com/)  
_Mirror  of Justice_ (http://www.mirrorofjustice.blogs.com/)  
_Law, Religion, and  Ethics_ (http://lawreligionethics.net/) 
 
 
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


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Re: Driveway Fee as Tax on Churches

[Hamilton02]

Thanks for the explanation.  I'm wondering what the argument would be  to 
make property 
tax exemption constitutionally required.  There is a growing movement  
against such tax 
breaks, which is supported by the economic situation of many local  
governments, so I 
would expect there will be an increasing number of political and court  
fights over the issue.
 

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
215-353-8984  

 
In a message dated 11/6/2011 8:01:31 A.M. Eastern Standard Time,  
estan...@telladf.org writes:

Marci: 
The  main argument the City made in this case was that the assessment was a 
“fee”  and not a “tax.”  Kansas has good precedent about the distinction 
between  fees and taxes and my main argument was that this was a tax and not 
a fee –  and that it was specifically a property tax.  As a tax, the City 
should  have respected the uniform state law in Kansas that provides a 
property tax  exemption for non-profit organizations.  Instead, the City tried 
to  
subvert the property tax exemption provided for in state law by terming 
this a  “fee” for services. 
I  did not argue that the exemption was constitutionally required because 
the  case did not require that argument (although I am still looking for a 
case  where I can make that argument – this is an issue I believe will come to 
a  head at some point in the near future).  This was a straightforward  
application of  state law and I think the City saw that its position was  weak 
under state law – that’s why they settled.   
Best, 
Erik

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Re: Driveway Fee as Tax on Churches

[Hamilton02]

Erik--  Just so I understand the principle here.  The city should  have 
provided an exemption because the
state law grants all religious organizations a property tax  exemption?  Or 
are you saying that
the exemption was constitutionally required?
 
Thanks---
 

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
215-353-8984  

 
In a message dated 11/3/2011 2:43:58 P.M. Eastern Daylight Time,  
ma...@law.villanova.edu writes:

I litigated this case on  behalf of two churches in Mission, Kansas (one 
Baptist and one  Catholic).  The City recently settled the case by providing 
an exemption  in the ordinance for all organizations who hold a property tax 
exemption under  state law.  Here is a link to ADF’s press release on the 
settlement which  also contains a link to the Complaint: 
_http://www.adfmedia.org/News/PRDetail/5112_ 
(http://www.adfmedia.org/News/PRDetail/5112) .   
Kansas has great precedent on the difference between a “tax” and a “fee.” 
This  was plainly in the nature of a tax and the City should have provided an  
exemption in the first place. 
Erik 
 
 
 
 
 
 
 
 
 
 
  

 










 
Erik  Stanley 
Senior Legal  Counsel  
(913) 685-8000 
(913) 685-8001 (fax) 
_EStanley@telladf.org_ (mailto:estan...@telladf.org) 
_www.telladf.org_ (http://www.telladf.org/)  
 
 
 
 
 
 
 
 
 
 
  

 










"Truth is immortal" Dr.  Balthasar Hubmaier, 1527 


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Re: Go to Church or Go to Jail?

[Hamilton02]

First, this is hilarious.  Second, it reminds me of my cousin, who is  a 
principal at a public high school in Kentucky.  When we were visiting  several 
years ago, he left dinner early to draft the school prayer to be  read over 
the PA for the next day.  When I joked that that might be a  problem for 
the Supreme Court, he just smiled.  I would imagine  that would be the 
response from the Alabama lawmakers on this issue.  
 

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
215-353-8984  

 
In a message dated 9/26/2011 5:41:16 P.M. Eastern Daylight Time,  
ma...@law.villanova.edu writes:

 
That’s  what it appears to be (sorry for cross-posting but this should be 
useful to  subscribers on both lists looking for an exam question, to say 
nothing of the  expected discussion). 
_http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-opti
ons-for-serving-time/?hpt=hp_t2_ 
(http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2)
  
Headline  and first paragraph: 
_Jesus  or jail? Alabama town offers options for serving  time_ 
(http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serv
ing-time/)  
If  you're charged with a nonviolent crime in one Alabama town, you might 
just  have the chance to pray it all away. 
Starting  this week, under a new program called Operation ROC (Restore Our 
Community),  local judges in Bay Minette, Alabama, will give those found 
guilty of  misdemeanors the choice of serving out their time in jail, paying a 
fine or  attending church each Sunday for a year. 
James  Edward Maule 
Professor  of Law 
Villanova  University School of Law 
ma...@law.villanova.edu 
http://vls.law.villanova.edu/prof/maule 

=

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