[no subject]
In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that We do not grant monetary damages for violations of the Establishment Clause. No authority is cited for that proposition ,other than a remark that EC relief is equitable in nature. I know that other courts have awarded such damages, although with the exception of one 10th Circuit case, I don't know of any published opinions. Is Judge Batchelder right about this claim? I understand it will often be difficult to prove or quantify such damages, but I don't see a blanket rule against them. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.orgmailto:ste...@ajc.org www.ajc.orghttp://www.ajc.org/ Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal [cid:image001.jpg@01D0A4F4.5C4ADD10] ___ 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.
[no subject]
Today's NY Times Review section has an article by a professor of evolutionary biology at a public university describing a lecture he gives annually explaining how that body of science has undermined central claims of religious traditions. Is it constitutional for him to give this lecture? Would it be constitutional for a professor of theology at the same university to offer a rebuttal in religious terms? Marc Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Rick Garnett Sent: Friday, September 26, 2014 10:43 AM To: Law Religion issues for Law Academics Reply To: Law Religion issues for Law Academics Subject: Re: GW National Religious Freedom Moot Court Competition Dear Chip, Thanks for this. I'm hoping that Notre Dame will send a team again. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: George Washington University will once again host the National Religious Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. The registration period is open from now until Nov. 15, 2014. The problem will be released on Nov. 17, 2014. The competition will be held at GW on Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of conscience raised by teachers against a hypothetical law in Washington, D.C. that requires teachers and administrators to carry firearms on public school property during school hours. More information here: http://www.religionmootcourt.org/ (Ignore the Feb, 2014 dates at the top of the website). -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 theanti-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. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 a
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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: 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 mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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 image001.jpg 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: 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.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu 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 hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu 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.edumailto: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.orgmailto: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.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: 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.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu 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 hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu 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.edumailto: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.orgmailto: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.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- does the AZ bill permit discrimination on gender and race by private businesses? The RFRAs say explicitly they are good against the govt. expanding to private parties is a huge leap. Remember RFRAs are supposedly the return to constitutional protections. The Constitution requires state action but the RFRAs are explicit in the need for a govt defendant. It's not NYT v Sullivan Marci Sent from my iPhone On Feb 26, 2014, at 9:45 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: 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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: 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 mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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 image001.jpg 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- please elaborate. Can a Biblical white supremacist make an argument to refuse to serve a black person under the AZ bill? How about the KS bill? And while we're at it, how about the GA bill? I understand that the defenders of these bills have a long standing policy of not wanting to explain the details pf how the bill will work in operation, but that gambit is unethical in my view. The burden is on the defenders of these new bills to explain how they improve our society by increasing opportunities to discriminate by religious actors. As I have said before the supporters of extreme religious liberty are morally responsible for the consequences of these laws/bills. Marci Sent from my iPhone On Feb 26, 2014, at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: 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 mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 mark.scarbe...@pepperdine.edu 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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: 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 https://www.facebook.com/professormarciahamilton?fref=ts https
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 icl...@law.gwu.edu 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 mark.scarbe...@pepperdine.edu 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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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=1055context=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 hillelle...@gmail.comwrote: 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 icl...@law.gwu.edu 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 mark.scarbe...@pepperdine.edu 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.comwrote: 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 icl...@law.gwu.edu 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 mark.scarbe...@pepperdine.edu 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
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 hillelle...@gmail.comwrote: 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 icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.comwrote: 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 icl...@law.gwu.edu 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 mark.scarbe...@pepperdine.edu 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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill – at least what I’ve seen – has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, February 26, 2014 8:07 AM 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 argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: 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.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu 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 hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu 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.edumailto: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.orgmailto: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.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 hillelle...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 icl...@law.gwu.edu 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 mark.scarbe...@pepperdine.edu 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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have been struck by the intensity of the blowback against both bills, but particularly the reaction to the Arizona bill. I think there are several possible rationales for the power of the reaction. The breadth of the bill is one factor. Another factor is that the business community is increasingly viewing these kinds of laws as having a significant downside and no upside. Economic forces may do more to advance marriage equality in red states than anything else. I think a final factor is that legislation providing some accommodations for religious objectors to same-sex marriage can be justified by its supporters as a “live and let live” solution to conflicting views when these accommodations are proposed at the same time the legislature is considering recognizing same-sex marriages. The Kansas and Arizona bills are more like “live and let die” laws. These states have made it clear that they do not respect the liberty and equality interests of same-sex couples. In this context, the laws cannot be justified under a broader principle of attempting to reconcile conflicting interests. The laws seem to suggest that only certain people count in these states and deserve respect for their autonomy rights. For many people, that is a problematic message. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Wednesday, February 26, 2014 9:35 AM To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill – at least what I’ve seen – has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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 icl...@law.gwu.edu mailto:icl...@law.gwu.edu 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=105 5 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10 55context=njlsp 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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 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 dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 hillelle...@gmail.com 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 icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.com 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. ___ 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you *would* accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.eduwrote: 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 hillelle...@gmail.com 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 icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.com 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. ___ 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. -- Hillel Y. Levin Associate Professor
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 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/ http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock mailto:dlayc...@virginia.edu dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' mailto:religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu 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: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [ mailto: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 mailto:hillelle...@gmail.com hillelle...@gmail.com 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 mailto:icl...@law.gwu.edu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an accommodation given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others' religious conscience should be protected by accommodations under the regime created by Employment Division v. Smith. 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 Hillel Y. Levin Sent: Wednesday, February 26, 2014 11:49 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: 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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 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 hillelle...@gmail.commailto:hillelle...@gmail.com 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 icl...@law.gwu.edumailto:icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.commailto:hillelle...@gmail.com wrote: Ira
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Since I've already accidentally intruded on this conversation (Hello everyone), why are you looking at a count of employees rather than whether the business entity is closely held, which would also go to the Walmart objection. In my experience, small business owners operate as if their legal entities are an extension of their personalities, regardless of the number of employees. -Kevin Chen, Esq. On Wed, Feb 26, 2014 at 2:54 PM, Douglas Laycock dlayc...@virginia.eduwrote: 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 [image: http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [image: http://www.sol-reform.com/tw.png]https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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.edureligionlaw-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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag. Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an accommodation given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others' religious conscience should be protected by accommodations under the regime created by Employment Division v. Smith. 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 *Hillel Y. Levin *Sent:* Wednesday, February 26, 2014 11:49 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you *would* accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu wrote: 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 hillelle...@gmail.com 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
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 dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
There are very few people who object on religious grounds to selling ordinary goods and services to gays. The sincerity of any such claim is obviously suspect; some of them may be sincere but many of them probably are not. It does not support anyone's gay sexual relationships to sell them groceries or hardware, or to mow their lawn or repair their plumbing. And as the breadth of any claimed exemption expands, the government's claim of compelling interest expands with it. Some landlords view renting the apartment as directly supporting the marriage-like sexual relationship. As one casebook points, out, the landlord supplies the bedroom. Many of these people are clearly sincere. I would protect the very small landlords. And by the way, the law does hold landlords responsible for how tenants use their premises. If your tenant creates a nuisance, or violates the zoning laws, or runs a drug den or a house of prostitution, the property is at risk and the landlord is on the hook in many states. It is not so odd for these small landlords to feel morally responsible for what they allow on their property. 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 Hillel Y. Levin Sent: Wednesday, February 26, 2014 2:49 PM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: 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 tel:434-243-8546 434-243-8546 From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [mailto: mailto:religionlaw-boun...@lists.ucla.edu 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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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 icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I believe my post dealt with creation of celebratory art by wedding photographers, not bakers. More later but this isn't commercial speech. Getting paid for expression (novelists? newspaper publishers?) doesn't make speech commercial. Speech proposing a commercial transaction is commercial speech. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Hillel Y. Levin Date:02/26/2014 12:18 PM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag. Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an “accommodation” given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others’ religious conscience should be protected by “accommodations” under the regime created by Employment Division v. Smith. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Wednesday, February 26, 2014 11:49 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: 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 434-243-8546tel:434-243-8546 From: religionlaw-boun
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 http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu 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 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 [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu? ] On Behalf Of hamilto...@aol.com mailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu mailto: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 http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes
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 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 dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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
FW from Paul Salamanca: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
From: Salamanca, Paul E Sent: Wednesday, February 26, 2014 3:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Dear friends, The Supreme Court has interpreted the First Amendment to do much more than protect articulable messages. I wonder if Professor Levin's argument, which appears to reflect Spence, takes into account such decisions as Hurley and Brown (the video-game case). Surely the First Amendment protects art, which doesn't necessarily have a clear message. What's the clear message of Beethoven's Fifth Symphony? Rothko? I think a fair argument can be made that the First Amendment protects such artistic endeavors as making a fancy cake and taking clever photographs, and I can see a plausible distinction between these forms of art and renting an apartment. Paul Salamanca University of Kentucky ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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.htmlhttp://personal2.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 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.comhttp://sol-reform.com/ [Image removed by sender.]https://www.facebook.com/professormarciahamilton?fref=ts [Image removed by sender.] https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Prof. Laycock makes interesting points, as usual, but as to the mirror-image one: Arizona actually does have laws on sexual-orientation discrimination in employment. They're local laws, but they cover some 35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix, Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have an impact on such ordinances. In truth, of course, most if not all states are speckled rather than just red or blue. Bill Kelley, Chicago William B. Kelley Attorney at Law 2012 West Estes Avenue Chicago, Illinois 60645-2404 (773) 907-9266 w...@wbkelley.com On 2/26/2014 1:22 PM, Douglas Laycock wrote: 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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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 icl...@law.gwu.edu mailto:icl...@law.gwu.edu 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=1055context=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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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. ___ 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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Glad to hear it. One more inaccurate fact from the press coverage here. 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 William B. Kelley Sent: Wednesday, February 26, 2014 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Prof. Laycock makes interesting points, as usual, but as to the mirror-image one: Arizona actually does have laws on sexual-orientation discrimination in employment. They're local laws, but they cover some 35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix, Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have an impact on such ordinances. In truth, of course, most if not all states are speckled rather than just red or blue. Bill Kelley, Chicago William B. Kelley Attorney at Law 2012 West Estes Avenue Chicago, Illinois 60645-2404 (773) 907-9266 w...@wbkelley.com mailto:w...@wbkelley.com On 2/26/2014 1:22 PM, Douglas Laycock wrote: 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 [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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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 icl...@law.gwu.edu mailto:icl...@law.gwu.edu 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=105 5 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10 55context=njlsp 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 hillelle...@gmail.com mailto:hillelle...@gmail.com 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.eduwrote: They need to adjust [which here clearly means give up their religious commitments] or move on. As I said. 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 3:43 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 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern From: Richard Dougherty [mailto:dou...@udallas.edu] Sent: Wednesday, February 26, 2014 06:51 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: “They need to adjust [which here clearly means give up their religious commitments] or move on.” As I said. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:43 PM To: religionlaw@lists.ucla.edumailto: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 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
At least under the New Mexico Supreme Court’s analysis in Elane Photography, I believe the discrimination claim would be rejected. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, February 26, 2014 4:20 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doesn't Runyon v. McRary's resolution of the freedom of association claim, understood to be derived from the first amendment's protection of the freedom of speech, suggest the answer? The photographer has a first amendment right of expression that would protect the display of the sign, but no affirmative constitutional right to engage in statutorily forbidden discrimination. Complaint dismissed. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Marc Stern ste...@ajc.org: Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern From: Richard Dougherty [mailto:dou...@udallas.edu] Sent: Wednesday, February 26, 2014 06:51 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: ?They need to adjust [which here clearly means give up their religious commitments] or move on.? As I said. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:43 PM To: religionlaw@lists.ucla.edumailto: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 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
List members who have not had the chance to read Tom and Doug’s brief in Windsor/Perry should do so. It is a powerful statement in support of same-sex couples right to marry while urging some accommodation of religious objectors who consider same-sex marriage to be unacceptable for religious reasons. One need not agree with the specific accommodations Tom and Doug endorse (and I don’t ) to recognize that they see great value in people being able to live their lives authentically and with integrity. Reading some of the posts in this thread, I am not sure that for some list members, there is any empathy for, or commitment to, religious people being able to be true to their identity, faith and conscience. Am I correct that some list members are arguing that religious identity, faith and conscience should be assigned no weight in balancing religious accommodations against majority preferences or the costs accommodations may impose on others. Are religious liberty and freedom of conscience political goods we will only support if they are entirely without cost? Let me be more specific. Not that long ago, some people in San Francisco considered placing on the ballot an initiative that would ban male circumcision in the City. The initiative did not appear on the ballot. If, however, the state of California passed such a prohibition, would it be insidious or beyond the pale to consider exempting observant Jews (and Moslems) from this requirement? The alternatives to accommodation are apparent. We can demand under threat of sanction that observant Jews adjust to this prohibition by rejecting a command from G-d that Jews have obeyed for 4000 years. Or observant Jewish families planning on having children can go elsewhere and move on to some other state. Shouldn’t accommodation at least be worth considering in this circumstance? And if we assign some weight to religious beliefs in this case, shouldn’t we at least acknowledge the burden other laws impose on people whose beliefs conflict with government mandates? Or are people really arguing that religious identity, faith, and conscience should count for nothing in the face of a law that burdens religious exercise? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, February 26, 2014 2:36 PM To: 'Law Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Following up on this: gays and lesbians have been told (wrongly) for years to change their orientation or just act on it in private, disregarding their interest in living lives of integrity. It’s therefore ironic if, in the service of gay rights, society simply tells the religious believer to change her belief or—more common, I suppose—just confine it to church, and act in the business world in ways s/he sincerely and conscientiously concludes are inconsistent with the belief. That’s why Doug and I said in our Windsor/Perry brief (supporting same-sex marriage rights and religious exemptions) that there are parallels between gay-rights claims and religious-objector claims. I’m not claiming that the ability to change or compartmentalize these two things is exactly the same. But to dismiss the religious believer’s dilemma altogether shows a lack of sympathy—no concern for his or her interest in living a life of integrity—and ignores one of the central reasons we protect religious freedom in the first place. Broad exemptions in the commercial sphere would expose gays and lesbians to disadvantage based on a central aspect of identity that they should not be asked to change or hide. But if we can craft exemptions where the religious business owner’s integrity interest is at its highest (sole-proprietor or small businesses where the owner is providing personal services focused directly on the marriage) and the effect on married couples is not real loss of access to services (the aim of the size limit and the hardship exception), then it seems to me the religious believer’s integrity interest is stronger in the balance. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice ___ 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
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 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.comhttp://www.nrla.com/ [NRLA2013-final-350px]http://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 inline: image001.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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.comhttp://www.nrla.com/ [cid:image001.jpg@01CF323C.54BF1830]http://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto: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.edumailto: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 inline: image001.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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 image001.jpg 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 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 hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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.edureligionlaw-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 image001.jpg http://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.edureligionlaw-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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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 mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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 image001.jpg 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: 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 https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 hamilto...@aol.comwrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 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.edureligionlaw-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 image001.jpg http://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.edureligionlaw-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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe
[no subject]
Today the National Archives, with a large assist from the University of Virginia, put up 119,000 documents from the collected papers of George Washington, John Adams, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton, and James Madison. The documents are searchable and they include editorial notations. The collection will continue to grow over time. The collection is available at www.founders.archives.gov. I don't know to what extent this collection overlaps others that are already on line. One advantage of this collection over some of the others is that it is available to the public without charge. 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 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.
[no subject]
I'm not sure I quite understand Eric's point. If the contract says that Muslim arbitrators are to be chosen, but there's a dispute about who's a Muslim, and the result is that the court can't act, then that's another way of saying that the contract is not enforceable by the court (since the consequence of the court's not acting is that the contract won't be enforced). Just as with a will that says I leave the property to the X church, so long as it remains true to its founding religious doctrine, a contract that says a Muslim arbitrator must be selected would not be enforceable by a secular court, so long as there's a dispute about who's Muslim. As to the discrimination point, the discrimination rests simply in the court's saying you're not a Muslim, so I will not appoint you to this position. It may not be invidious in the sense of reflecting a judge's hostility to the person; but it is still discrimination. If a police officer is told by a property owner to remove a trespasser, the police officer can do so without discriminating based on religion, even if the property owner's motivation stems from the trespasser's having been ejected from the faith. The police officer doesn't care about the trespasser's religion, and might not even know the trespasser's religion. There is no discrimination on the police officer's part. But if a property owner tells the police, please eject everyone who isn't a Catholic, I don't think the police officers can do that. Likewise with a judge being told to appoint only Muslims. Eugene Eric Rassbach writes: A few thoughts in response to Eugene's email below: Eugene's recounting of what would happen in the Ahmadi hypo leaves out an important step: after one party objects to the Ahmadi as non-Muslim, the Court won't just act immediately. The other party to the arbitration has to take a position. If both (or all) the parties can't agree before the court that the Ahmadi is not Muslim for purposes of the contract, the Court cannot proceed. Thus the Court will always be dealing with a stipulation about the underlying religious question, not simply one party's objection, and won't be deciding a religious question. If the parties can't agree one way or the other, then the Court can't act. I also don't accept Eugene's main point. How is it discrimination (or entanglement) for a court to abstain from deciding an underlying religious question? Was the Supreme Court discriminating against one group of Russian Orthodox by deciding Kedroff the way it did? It is not discrimination in the invidious discrimination sense for one person to say that another person is not really [Religion X] or to exclude them from a particular religious group. That sort of distinction is in the very nature of religious discourse, which *always* includes disputes over things like identity (cf. whether a child born to a Jewish father and a non-Jewish mother is halachically Jewish). It is no more discriminatory or immoral for a court to uphold two parties' agreed understanding of who happens to be Muslim (whether that is set forth in the terms of a contract or by stipulation before the Court), than it is for a court or the police to order someone forcibly removed from a house of worship who has been rejected for leaving the faith. What if the contract said that the arbitrator had to be the sitting Roman Catholic Bishop of Rome? If the parties agree the Pope is Catholic, who is the court to disagree? Should law profs or other potential arbitrators feel discriminated against because they weren't on the list? Re Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. Finally, I add a personal note of surprise that I seem to be taking a more classically libertarian position than Eugene is! There's got to be something wrong with that. :) Eric ___ 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.
[no subject]
It is hard to believe Congress meant to allow the defendant to deny the plaintiff employment because of her religiously mandated dress reflecting her different religious beliefs, but meant to allow a suit when the employer simply makes adverse comments about the person's dress. On the other hand ,i think the court is right about retaliation cases not being preempted by the religious exemption. Marc Stern From: religionlaw-boun...@lists.ucla. d to edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, May 04, 2010 4:36 PM To: 'Law Religion issues for Law Academics' Subject: Religious harassment claim against a religious hospital? * Prof. Howard Friedman's excellent Religion Clause blog pointed to Kennedy v. Villa St. Catherine's, Inc. (D. Md. Apr. 30), http://www.mdd.uscourts.gov/Opinions/Opinions/Kennedymsjmo043010.pdf . Plaintiff, a nursing assistant, was a member of the Church of the Brethren and wore her denomination's religious garb; the Assistant Director of Nursing Services at Villa St. Catherine's Nursing Center allegedly told her - in front of the hospital's administrator/CEO - that plaintiff's clothes were inappropriate in a Catholic institution ... made the residents' family members uncomfortable, ... and that Plaintiff should conform to a more traditional mode of dress. Some time later - it's not clear to me when - plaintiff was fired. She sued, claiming in part that the conduct was open his remarks. It is hard to The defendant moved for summary judgment, apparently based only on the Title VII exemption for religious discrimination by religious institutions, and not (yet) based on the claim that the behavior was not severe or pervasive enough to create a hostile or abusive environment based on religion for the plaintiff and for a reasonable person. The claim that the defendant was a religious institution was apparently undisputed. The court, however, held that religious harassment isn't covered by that exemption, largely because Unlike decisions to employ or fire based on religious beliefs, harassment is not a legitimate part of creation or maintenance of a workforce composed of individuals of compatible religious beliefs. Nor could Congress have considered it a legitimate way to 'exercise a preference,' and because the EEOC has taken the view that the religious organization 'exemption only applies to hiring and discharge, and does not apply to terms, conditions, or privileges of employment, such as wages or benefits.' Any thoughts on whether this decision is sensible? It strikes me as unsound as a matter of statutory construction, because the exemption applies to discrimination, and the premise of hostile environment harassment law is that harassment is illegal precisely because it constitutes discrimination in the terms and conditions of employment. (The EEOC's view about the exemption generally not applying to terms, conditions, and privileges of employment thus strikes me as unsound as well.) But beyond this, it strikes me as exacerbating the First Amendment dangers posed by hostile environment harassment law. Religious harassment claims might apply not just based on statements to the particular person, but also based on religious proselytizing aimed at the employees at large, based on religious claims that offend other religious belief systems, and so on - the sort of behavior that I would think religious institutions should be free to engage in. Or am I missing something here? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject)
Great! Next time do it when I tell you to do it. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor-In-Chief _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) ** See what's new at http://www.aol.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.
(no subject) Clergy at career days
Interesting responses, thanks. In this case, the situation was much more of a forum, with an open invitation sent home with all students asking for parent volunteers willing to come in and talk about their careers. In fact, I was responding to a second appeal for speakers sent out from the class which was lamenting the limited participation from parents. I’m interested to know in this case what informs the differentiation between invited guests and forum. However, Doug Laycock’s point is applicable, since the presentations were going to be made to the class in general by individual presenters. It seems reasonable enough that the teacher’s right to control guests is not subject to much challenge, but I had emphasized to the volunteer and the teacher that the minister wasn’t going to engage in any proselytizing, but was going to discuss the functional aspects of her job. I suppose that this might be a legitimate concern for a teacher due to the awkwardness and controversy that having a holy roller come in and preach might engender, but I didn’t receive any suggestion that this had been something that had any precedent. Finally, I suppose, is there a question of what free speech rights were violated at all, since the speech in question is some steps removed from the subject of the rights? The case in Peck is clearer in this sense because the school restricted the direct speech of a student because of religious content, despite the fact that the speech was expressed within the school’s pedagogic purpose. Here, the speech may not be speech and is connected to the pedagogical purpose more tenuously. Of course, as a non-lawyer, I think that what the school has done is dumb, mostly. Richard James ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject) Clergy at career days
Very often that's the real problem. Then the lawyers on both sides go to work making up arguments. Quoting Richard James [EMAIL PROTECTED]: Of course, as a non-lawyer, I think that what the school has done is dumb, mostly. * * * Richard James Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject) Clergy at career days
What has struck me about the responses is the relative ambiguity -- for good reason -- of the current state of the law. We often hear that critics of strict separation overstate the opposition to public displays or endorsement of religion, but I think this case, and our discussion of it, shows that it is more complicated than that. Richard Dougherty-Original Message-From: "Richard James" [EMAIL PROTECTED]Sent 4/4/2007 11:30:11 AMTo: religionlaw@lists.ucla.eduSubject: (no subject) Clergy at career daysInteresting responses, thanks. In this case, the situation was much more of a forum, with an open invitation sent home with all students asking for parent volunteers willing to come in and talk about their careers. In fact, I was responding to a second appeal for speakers sent out from the class which was lamenting the limited participation from parents. I’m interested to know in this case what informs the differentiation between invited guests and forum. However, Doug Laycock’s point is applicable, since the presentations were going to be made to the class in general by individual presenters.It seems reasonable enough that the teacher’s right to control guests is not subject to much challenge, but I had emphasized to the volunteer and the teacher that the minister wasn’t going to engage in any proselytizing, but was going to discuss the functional aspects of her job. I suppose that this might be a legitimate concern for a teacher due to the awkwardness and controversy that having a holy roller come in and preach might engender, but I didn’t receive any suggestion that this had been something that had any precedent. Finally, I suppose, is there a question of what free speech rights were violated at all, since the speech in question is some steps removed from the subject of the rights? The case in Peck is clearer in this sense because the school restricted the direct speech of a student because of religious content, despite the fact that the speech was expressed within the school’s pedagogic purpose. Here, the speech may not be speech and is connected to the pedagogical purpose more tenuously.Of course, as a non-lawyer, I think that what the school has done is dumb, mostly. Richard James___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
(no subject)
In response to the March 26 posting below (although it’s not really a response, because I was the ‘correspondent’) it might also be the case that Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 530 (1993) has more bearing on the issue, as the decision holds that: The first amendment forbids an official purpose to disapprove of...religion in general. My goal is to try to provide a constructive response to the school that will enable them to stay out of hot water in the future by mitigating this kind of knee-jerk response to the issue at hand. Can a school restrict participation in school-sponsored career daytype events due to concerns about chuch/state separation? Our daughter had intended to invite her grandmother, a minister, to a firstgrade career day to which the school had issued a broad invitation. Today I was told by the principal that the attendance of a minister would be a violation of separation. I think that schools are understandable hyper-cautious about this issue, but do you think that Peck v. Baldwinsville has any bearing on this? It might be thought that participation by student's invitees is an aspect of free speech and that therefore the school is engaged in 'viewpoint discrimination' of the kind identified in Peck. Richard James ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject)
I don't know the Peck case. But there are cases holding that religious viewpoints cannot be excluded from genuine free speech opportunities. Widmar v. Vincent (1981); Lamb's Chapel v. Center Moriches Union Free School District (1993); Rosenberger v. Rector of Univ. of Virginia (1995); Pinette v. Capital Square Board (1995); Good News Club v. Milford Central School District (2001). None of those involve a captive audience, and your claim is stronger if Career Day is a sort of fair with parents and grandparents from different careers spread around the gym; the school has more of an argument if each parent or grandparent makes a presentation to the class. But I would think that it is not a very strong argument unless religion comes to dominate the forum. Quoting Richard James [EMAIL PROTECTED]: In response to the March 26 posting below (although it?s not really a response, because I was the ?correspondent?) it might also be the case that Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 530 (1993) has more bearing on the issue, as the decision holds that: The first amendment forbids an official purpose to disapprove of...religion in general. My goal is to try to provide a constructive response to the school that will enable them to stay out of hot water in the future by mitigating this kind of knee-jerk response to the issue at hand. Can a school restrict participation in school-sponsored career daytype events due to concerns about chuch/state separation? Our daughter had intended to invite her grandmother, a minister, to a firstgrade career day to which the school had issued a broad invitation. Today I was told by the principal that the attendance of a minister would be a violation of separation. I think that schools are understandable hyper-cautious about this issue, but do you think that Peck v. Baldwinsville has any bearing on this? It might be thought that participation by student's invitees is an aspect of free speech and that therefore the school is engaged in 'viewpoint discrimination' of the kind identified in Peck. Richard James Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: (no subject)
As Doug suggests, it is extremely unlikely that allowing the parent or grandparent minister to speak would violate the Establishment Clause. But if we are talking about a classroom program, as a free speech matter, I think there is a powerful presumption that teachers do not create a forum by inviting guest speakers into the classroom to speak to students. The teacher's decision about who may speak to the class would either be unreviewable under Arkansas Public Television v. Forbes or upheld, as long as it served a legitimate pedagogical purpose, under Hazelwood v. Kuhlmeier. It may be that the very broad invitation to guests in this case is sufficient to distinguish this situation from the more common guest speaker or guest panel situation. But from a conventional free speech perspective, school and teacher discretion in conducting classroom programs can not easily be challenged - even when their decisions are viewpoint discriminatory. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, April 03, 2007 8:18 AM To: religionlaw@lists.ucla.edu Subject: Re: (no subject) I don't know the Peck case. But there are cases holding that religious viewpoints cannot be excluded from genuine free speech opportunities. Widmar v. Vincent (1981); Lamb's Chapel v. Center Moriches Union Free School District (1993); Rosenberger v. Rector of Univ. of Virginia (1995); Pinette v. Capital Square Board (1995); Good News Club v. Milford Central School District (2001). None of those involve a captive audience, and your claim is stronger if Career Day is a sort of fair with parents and grandparents from different careers spread around the gym; the school has more of an argument if each parent or grandparent makes a presentation to the class. But I would think that it is not a very strong argument unless religion comes to dominate the forum. Quoting Richard James [EMAIL PROTECTED]: In response to the March 26 posting below (although it?s not really a response, because I was the ?correspondent?) it might also be the case that Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 530 (1993) has more bearing on the issue, as the decision holds that: The first amendment forbids an official purpose to disapprove of...religion in general. My goal is to try to provide a constructive response to the school that will enable them to stay out of hot water in the future by mitigating this kind of knee-jerk response to the issue at hand. Can a school restrict participation in school-sponsored career daytype events due to concerns about chuch/state separation? Our daughter had intended to invite her grandmother, a minister, to a firstgrade career day to which the school had issued a broad invitation. Today I was told by the principal that the attendance of a minister would be a violation of separation. I think that schools are understandable hyper-cautious about this issue, but do you think that Peck v. Baldwinsville has any bearing on this? It might be thought that participation by student's invitees is an aspect of free speech and that therefore the school is engaged in 'viewpoint discrimination' of the kind identified in Peck. Richard James Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: (no subject)
I don't disagree with this. But if the invitation is to every student to bring a parent or grandparent to talk about his job, it looks a lot more like a forum and a lot less like the teacher inviting selected guest speakers. Quoting Brownstein, Alan [EMAIL PROTECTED]: As Doug suggests, it is extremely unlikely that allowing the parent or grandparent minister to speak would violate the Establishment Clause. But if we are talking about a classroom program, as a free speech matter, I think there is a powerful presumption that teachers do not create a forum by inviting guest speakers into the classroom to speak to students. The teacher's decision about who may speak to the class would either be unreviewable under Arkansas Public Television v. Forbes or upheld, as long as it served a legitimate pedagogical purpose, under Hazelwood v. Kuhlmeier. It may be that the very broad invitation to guests in this case is sufficient to distinguish this situation from the more common guest speaker or guest panel situation. But from a conventional free speech perspective, school and teacher discretion in conducting classroom programs can not easily be challenged - even when their decisions are viewpoint discriminatory. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, April 03, 2007 8:18 AM To: religionlaw@lists.ucla.edu Subject: Re: (no subject) I don't know the Peck case. But there are cases holding that religious viewpoints cannot be excluded from genuine free speech opportunities. Widmar v. Vincent (1981); Lamb's Chapel v. Center Moriches Union Free School District (1993); Rosenberger v. Rector of Univ. of Virginia (1995); Pinette v. Capital Square Board (1995); Good News Club v. Milford Central School District (2001). None of those involve a captive audience, and your claim is stronger if Career Day is a sort of fair with parents and grandparents from different careers spread around the gym; the school has more of an argument if each parent or grandparent makes a presentation to the class. But I would think that it is not a very strong argument unless religion comes to dominate the forum. Quoting Richard James [EMAIL PROTECTED]: In response to the March 26 posting below (although it?s not really a response, because I was the ?correspondent?) it might also be the case that Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 530 (1993) has more bearing on the issue, as the decision holds that: The first amendment forbids an official purpose to disapprove of...religion in general. My goal is to try to provide a constructive response to the school that will enable them to stay out of hot water in the future by mitigating this kind of knee-jerk response to the issue at hand. Can a school restrict participation in school-sponsored career daytype events due to concerns about chuch/state separation? Our daughter had intended to invite her grandmother, a minister, to a firstgrade career day to which the school had issued a broad invitation. Today I was told by the principal that the attendance of a minister would be a violation of separation. I think that schools are understandable hyper-cautious about this issue, but do you think that Peck v. Baldwinsville has any bearing on this? It might be thought that participation by student's invitees is an aspect of free speech and that therefore the school is engaged in 'viewpoint discrimination' of the kind identified in Peck. Richard James Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject)
It seems to me that the problem would arise with the parent or grandparent priest who would preach rather than talk about the job as a career. Can't that be controlled? Is the fear of it enough to make a distinction? What if the fear is based on past experience in the particular community? -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ The most precious things one gets in life are not those one gets for money. Albert Einstein ___ 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.
(no subject)
From The Guardian for Tuesday, March 21, 2006: Archbishop: stop teaching creationism Williams backs science over Bible The Archbishop of Canterbury, Rowan Williams, has stepped into the controversy between religious fundamentalists and scientists by saying that he does not believe that creationism - the Bible-based account of the origins of the world - should be taught in schools. Giving his first, wide-ranging, interview at Lambeth Palace, the archbishop was emphatic in his criticism of creationism being taught in the classroom, as is happening in two city academies founded by the evangelical Christian businessman Sir Peter Vardy and several other schools. Story continues at http://www.guardian.co.uk/religion/Story/0,,1735730,00.html with link to the transcript of the interview. Phillip M. Sparkes Director and Assistant Professor of Law Local Government Law Center Salmon P. Chase College of Law Nunn Hall 406, Nunn Drive Highland Heights, KY 41099 859-572-6313 (voice) 859-572-6302 (fax) ___ 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.
From the list custodian re: viewpoints, wording, fund-raising, and subject matter
Folks: My general approach to this list has been to allow all viewpoints, though to insist that the viewpoints be framed in as polite a way as possible given the nature of those viewpoints. This includes anti-Semitism, anti-Protestantism, anti-evangelical-Christianity, anti-Catholicism, and the like. It seems to me that we should deal with those viewpoints either by arguing against them, or by ignoring them, as may seem more suitable to the occasion and to the offender. (I personally am more inclined to ignore Mr. Darby than to pay further attention to him on this list.) And while calling America Zionist-Occupied Government is surely a mark of anti-Semitism, it isn't a particularly rude way of expressing the opinion (however loathsome and foolish the opinion might be); if we are to maintain the rule that no viewpoints are excluded from the list, there seems to be no benefit in trying to channel Mr. Darby's anti-Semitism into other terms. As to other matters: Fund-raising for one's political campaign is indeed not allowed on this list. Occasional mentions of one's published work, including explicit or implicit suggestions that one buy it, are allowed, though it's important to keep them occasional. General criticisms of alleged Zionist influence on American government strike me as related to politics and ethnicity rather than to religion, and are thus off-topic; references that are more closely connected to the law of government and religion are not off-topic, again no matter how reprehensible the views may be. As to Mr. Darby's most recent post about Zionist influence, I opened the door to some degree of this in my earlier post criticizing Mr. Darby (a post that I think was on-topic because it described the character of someone who is a not insignificant legal player in law-of-government-and-religion debates). It seems to me that he's entitled to react for a few posts, though after a while I'll have to return to insisting that the connection of the arguments to the law of government and religion be stronger. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Wedding Ceremony Disclosures:Viable Claim or Lack of Subject Matter Jurisdiction
A couple completes pre marital counseling with a minister in which they reveal personal history, including on going psycho therapy. During the wedding ceremony, the minister, for God only knows what reason, reveals this information to those assembled to witness the wedding. The couple files suit for invasion of privacy, breach of fiduciary duty, negligence, n egligent infliction of emotional distress, and countless other causes of action. No matter how you lable it, isn't the gravamen of the complaint "clergy malpractice", and if so, is not the court precluded from adjudicating this subject matter? Aren't all of plainitffs claims constitutionally precluded, or is there a viable cause of action for the disclosure of personal information during the course of a relgious service and ceremony? Donald C. Clark, Jr.2333 Waukegan RoadSuite 160Bannockburn, Illinois 60015847-236-0900847-236-0909 (fax) ___ 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.
(no subject)
New Yorks Court of Appeals held yesterday in Wende C. v. United Methodist Church that it would not recognizer a claim for breach of fiduciary duty in a case in which a minister had an affair with a married woman he was counseling. It said that the claim of breach of fiduciary duty claim was the functional equivalent of a claim for clergy malpractice which it had already rejected. There was a dissent which notes the split of authority on the subject. Marc Stern ___ 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.
(no subject)
Apologies to the List. I did not intend my post to Steve Jamar to be sent to the List. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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.
(no subject)
Anonymous students left pamphlets calling on students to accept Jesus on the desks of Jewish public high school students and no other students. I have been asked whether a school could ban religiously targeted distribution of any pamphlet. Any responses? Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
(no subject)
If possible, Eugene, Alan, and Chip are all correct. The school need not allow such activity in the classroom (distributions generally) and should be concerned about intimidating material (in the classroom or outside). Conversely, students have the right to target follow students of differing faiths in the hallways and lunchrooms, short of being intimidating. There may be a fine line, but schools are not required to protect students from private speech they may find annoying or offensive. -- Steven K. Green, J.D., Ph.D. Associate Professor Director, Center for Law and Government Willamette University College of Law 245 Winter St., SE Salem, OR 97301 503-370-6732 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: (no subject)
Yes, the decision in Leyla Sahin v.Turkeywas handed down on June 29. The central argument is found in paragraphs 104-106 and is essentially the same as the argument for such a prohibition in the Stasi Report. Three points might be made here: (1) Sahin deals with a student's objection to a university regulation. Courts have usually been more permissive of government regulation in primary and secondary schools. The Stasi report and the law passed by the General Assembly on February 10 apply only to schools below university level. (2) In the French version of the Sahin decision, the term laïcité appears wherever the term secularism is found in the English version. The Stasi Report came from La commission de reflexion sur l'application du principe de laïcité dans la Republique. The European Court and the Stasi Report use the same term when dealing with this issue. (3) Considering previous decisions of the European Court for Human Rights and the decision in Sahin, there seems to be little point in challening the French statute. As far as I know, the General Assembly has not acted upon any of the other recommendations of the Stasi Report; the ban on wearing religious symbols was passed on February 10. I make these and other points in the introduction to my translation which I expect to publish shortly. I want to thank the members of this list who demonstrated surprising (for me) interest in my translation. Let me add that I have greatly improved and corrected the translation I have e-mailed. Bob O'Brien - Original Message - From: marc stern To: [EMAIL PROTECTED] Sent: Thursday, July 01, 2004 4:28 PM Subject: (no subject) A decision of the European Court of Human Rights upholding a rule banning headscarves in a university setting came down this week. It can be read at http://hudoc.echr.coe.int/hudoc/ViewHtml.asp?Item=9Action="">... Marc Stern ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw NTMail K12 - the Mail Server for Education ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw