Re: Potentially Important California State Case

[Hamilton02]

Marci, I take it that you would have objected to the exemption in the Volstead Act for the religious use of wine.  Can you defend that?  


As I have stated many times, I think the peyote exemption is perfectly fine, and I don't see much difference here.  The religious use of wine in the amounts used for religious purposes can hardly be said to be a public health threat.




I do not think that âautonomyâ was the cause of the horrible abuse of thousands of children by Catholic priests and other religious.  The problem was the failure of Bishops to put children ahead of priests.  And this has precious little to nothing to do with exemptions from generally applicable laws.  

I deeply disagree.  The entire culture fostered the Catholic Church's culture of child abuse.  Prosecutors knew of cases but did not prosecute because the Church said it would take care of it itself.  Parents complained to priests and bishops, but not to prosecutors.  Many states did not require the reporting of child abuse by clergy, though they required the identical reporting by psychiatrists, social workers, and doctors.  The Church played on and perpetuated a culture of secrecy that rested on a concept of autonomy from the public good.  

Finally, the value of children till very recently has been quite low.  Children don't vote, so when their interests were compromised in the legislative and executive process, there was little recourse.  That is thankfully changing.





How do you know with such certainty what the âpublic goodâ is?  Is it, for you, just a matter of what the majority in the legislature says?  If so, why do we need a constitution with its messy antimajoritarian principles?  For example, de jure racial discrimination might have been seen as in the public good by a majority of Americans once upon a time.  So was the Court wrong in Brown?   

The public good is an evolving concept.   Brown was correct, just like the Court's evolving free exercise jurisprudence, which is opening the door to more liberty for those who have been oppressed in the name of relgious "liberty."  Primarily children.

  As a matter of institutional competence, the legislature is in a far better position to weigh and study the public good than a court that is limited to the facts produced by particular parties.  In a republican democracy, a legislature is not a majoritarian institution, but rather free to do what is right, regardless of what the people, the majority want.  The Framers rejected a right to instruct to give representatives the latitude to do what is in the public interest, which is never necessarily equal to what the public thinks it wants.

Regards, Marci
 




___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Potentially Important California State Case

[Newsom Michael]

 Marci, I take it that you would
 have objected to the exemption in the Volstead
 Act for the religious use of wine. 
 Can you defend that?


 


 I do not think that “autonomy” was the cause of the
 horrible abuse of thousands of children by Catholic priests and other
 religious.  The problem was the
 failure of Bishops to put children ahead of priests.  And this has precious little to
 nothing to do with exemptions from generally applicable laws.


 


 How do you know with such certainty what the “public good”
 is?  Is it, for you, just a
 matter of what the majority in the legislature says?  If so, why do we need a
 constitution with its messy antimajoritarian
 principles?  For example, de jure racial discrimination might have been seen as in
 the public good by a majority of Americans once upon a time.  So was the Court wrong in
 Brown?   


 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] 
Sent: Monday, March 01, 2004 7:37 PM
To: [EMAIL PROTECTED]
Subject: Re: Potentially Important
California State
Case

 

Well, let me just say that I find
Chip's and Bob's article on church autonomy posted today troubling.  It
was part of a church autonomy conference at BYU earlier this month.  I
will be posting my article for the conference on SSRN in the near future. 
I don't think the issues are obscure or complex.  Rather, the public good
is the only correct guiding principle in deciding whether generally applicable,
neutral laws apply to religious institutional conduct, not whether religious
groups should be shielded from the application of general laws.  Belief,
and therefore internal structure, may be protected, a la Reynolds and Smith,
but there is no reason to give religious institutions special treatment
relieving them from obligations under general laws. There is no philosophical
or theological or legal theory that supports shielding religious groups in this
way.  It's all a hearkening back to the clergy privilege in England that
rightfully was rejected eventually.  Children are seriously, and I mean
seriously, at risk under any version of church autonomy.  Lipservice to
children is not enough; the law must make it possible for them to be fully
protected.  An overreading of the Court's religious institution cases led
the Catholic Church to  believe it had a right to "autonomy" and
therefore to some of its worst errors involving children in the last several
decades.

I totally agree with Marty on vaccinations.  I also agree with Marty that
the key with understanding RLUIPA is the assessment of harm on each side, and I
find the assessments by the religious groups to be divorced from any
consideration of the general public good.  I find it amusing, though, that
Marty would say that when state and local interests are important, they will
prevail.  The California RLUIPA bill that was killed proposed that many
interests dear to the hearts of private homeowners can never be considered to
be "compelling."  The push by those defending RLUIPA is to say
that NOTHING satisfies the compelling interest test but the very RARE land use law. 
This is an attempt to takeover land use law for the benefit of religious
groups, period. And I don't see the federal government's intervention in these
cases muting that point at all.   I wish it were otherwise.

Marci


n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:




Well, I think I do agree with Marci
on one thing:  Among the worst, least defensible religious accommodations
are "exemptions for clergy for child abuse reporting and for medical
neglect of children."  Indeed, I've posted several times here that I
think many religious exemptions from vaccination requirements are
unconstitutional.  Even here, however, the questions are often very
complex.  In the child-abuse setting, for example, see the questions
examined with care in the extremely detailed and thoughtful draft article to
which Chip Lupu linked earlier today.
  
Marci's principal point -- and it's one for which I have a
great deal of sympathy -- is that religious accommodations ought to be suspect
if they impose significant costs on other private parties.  I think the
Court agrees with this, too -- see, e.g., Caldor, Hardison and Walsh. 
Indeed, it's difficult to find anyone who doesn't agree with this.  Even
Michael McConnell has written that a release-time program such as that at issue
in Zorach would be unconstitutional if "the nonparticipating students were
inflicted with 'an entirely wasted hour of school.'"
  
The question on which Marci and her RLUIPA detractors
primarily disagree is whether and to what extent RLUIPA imposes significant
costs on neighbors of the religious properties.  In my view, this is best
viewed not as a debate about the constitutionality of RLUIPA i

Re: RLUIPA, was RE: Potentially Important California State Case

[Hamilton02]

In a message dated 3/1/2004 9:45:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

How does a generally applicable, neutral law "protect those that need the most protection in this society (as opposed to one that provides exemptions)"?  I strongly take exception to the idea that some one-size-fits-all approach benefits the least among us.  In fact, it generally does the opposite, as most minority groups could tell you (whether they be racial, religious or otherwise). 

The law against obstruction of justice protects children whose sexual abuse is being hidden by churches.  I do not object to exemptions at all, but think all exemptions should be examined in light of the public good, not solely the needs of the particular religious institution.


 
Moreover, what would be the purpose of the Free Exercise Clause if the Constitution did not regard religion with some measure of support?  In your world, the Establishment Clause could easily carry the burden.

I think Smith, Lukumi, and Locke are rightly decided.



  
BTW, your incessant invocation of the Catholic church abuse crisis ignores, of course, that most of those invested with trust (including, for example, the family and public school teachers) have been responsible for child sexual abuse.  Singling out the Catholic Church at every turn is inappropriate as I doubt neither the Founders nor the current members of the Court believe children to be at the center of the Religion Clauses.


The Catholic Church is the most recent example of harm to the public good.  There are other churches who have permitted and hidden the abuse of children as well, to be sure.  They will be held to account if the legal system is structured in a way that does not fail these children.

This Court is highly protective of children across First Amendment jurisprudence.  

Marci
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: RLUIPA, was RE: Potentially Important California State Case

[Amar D. Sarwal]

How does a generally applicable, neutral law 
"protect those that need the most protection in this society (as opposed to one 
that provides exemptions)"?  I strongly take exception to the idea 
that some one-size-fits-all approach benefits the least among us.  In 
fact, it generally does the opposite, as most minority groups could tell you 
(whether they be racial, religious or otherwise). 
 
Moreover, what would be the purpose of the Free 
Exercise Clause if the Constitution did not regard religion with some measure of 
support?  In your world, the Establishment Clause could easily carry the 
burden.
 
BTW, your incessant invocation of the Catholic 
church abuse crisis ignores, of course, that most of those invested 
with trust (including, for example, the family and public school teachers) 
have been responsible for child sexual abuse.  Singling out the Catholic 
Church at every turn is inappropriate as I doubt neither the Founders nor the 
current members of the Court believe children to be at the center of the 
Religion Clauses.

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: [EMAIL PROTECTED] 
  Sent: Tuesday, March 02, 2004 12:33 
  AM
  Subject: Re: RLUIPA, was RE: Potentially 
  Important California State Case
  Steve and I will have to disagree on numerous 
  factual disagreements.  Reducing the interests of land use law to the 
  acronym NIMBY does not answer the objections I have raised.  There is no 
  jurisdiction in the country hat does not have "good space zoned for religious 
  groups to meet."  The question is whether this particular religious group 
  gets their first choice, regardless of the neighbor's concerns.I would 
  like to encourage "beneficent organizations," but I do not equate religious 
  organizations with beneficence.  Nor does the Constitution.  Every 
  humanly operated organization is capable of harming the public good, and 
  religious organizations have a long history of such harm.  Saying 
  otherwise is to wear deeply tinted rose-colored glasses.  The Court's 
  longstanding Religion Clause jurisprudence that applies generally applicable, 
  neutral laws to the conduct of religious organizations is absolutely necessary 
  to protect those that need the most protection in this society.  The 
  Catholic Church's clergy abuse era is just an example, not an 
  exception.Marci
  Religion is a special category.  It is treated specially in 
the Constitution and in  IHR instruments and in constitutions 
worldwide.NIMBY ought not be allowed to reign for siting religious 
structures.  There ought to be good space zoned for religious 
groups to meet.  And for certain size groups, homes should be ok 
too.We ought to encourage beneficent organizations.  We need 
not make every parcel into a tax-free church.  But I know of no 
community where that has in fact occurred.  What I see far more 
often is states and communities competing to give tax free land and 
other advantages to employers to locate in their communities.  I 
don't see that changing.In short, I think Marci's concern with 
respect to tax base is misplaced and has next to nothing to do with 
constitutional issues.  And I don't think religious anything can be 
left to pure majoritarianism.And finally, in my experience, many 
zoning boards and land (ab)use committees are either beholding to the 
monied interests or engage in petty actions just because they can - 
especially when it affects less popular things like religious buildings 
of certain types and sizes.Last time I looked as zoning schemes, 
they were impenetrable, detailed, and riddled with nonsense with 
multiple layers of commercial, industrial, residential, and on and 
on.  And they ALWAYS give way when the big guys move in and want a 
change.  Always.No, some constitutional restraint on our lesser 
angels is necessary or not only would there be no place at the inn, 
there would be no (religious) inn.The reader's particular 
community excepted, of course.Steve-- Prof. Steven D. 
Jamar    
vox:  202-806-8017Howard University School of 
Law   
fax:  202-806-84282900 Van Ness Street 
NW   
mailto:[EMAIL PROTECTED]Washington, DC  
20008   
http://www.law.howard.edu/faculty/pages/jamar
  
  

  ___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
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: RLUIPA, was RE: Potentially Important California State Case

[Hamilton02]

Steve and I will have to disagree on numerous factual disagreements.  Reducing the interests of land use law to the acronym NIMBY does not answer the objections I have raised.  There is no jurisdiction in the country hat does not have "good space zoned for religious groups to meet."  The question is whether this particular religious group gets their first choice, regardless of the neighbor's concerns.

I would like to encourage "beneficent organizations," but I do not equate religious organizations with beneficence.  Nor does the Constitution.  Every humanly operated organization is capable of harming the public good, and religious organizations have a long history of such harm.  Saying otherwise is to wear deeply tinted rose-colored glasses.  The Court's longstanding Religion Clause jurisprudence that applies generally applicable, neutral laws to the conduct of religious organizations is absolutely necessary to protect those that need the most protection in this society.  The Catholic Church's clergy abuse era is just an example, not an exception.

Marci





Religion is a special category.  It is treated specially in the 
Constitution and in  IHR instruments and in constitutions worldwide.

NIMBY ought not be allowed to reign for siting religious structures.  
There ought to be good space zoned for religious groups to meet.  And 
for certain size groups, homes should be ok too.

We ought to encourage beneficent organizations.  We need not make every 
parcel into a tax-free church.  But I know of no community where that 
has in fact occurred.  What I see far more often is states and 
communities competing to give tax free land and other advantages to 
employers to locate in their communities.  I don't see that changing.

In short, I think Marci's concern with respect to tax base is misplaced 
and has next to nothing to do with constitutional issues.  And I don't 
think religious anything can be left to pure majoritarianism.

And finally, in my experience, many zoning boards and land (ab)use 
committees are either beholding to the monied interests or engage in 
petty actions just because they can - especially when it affects less 
popular things like religious buildings of certain types and sizes.

Last time I looked as zoning schemes, they were impenetrable, detailed, 
and riddled with nonsense with multiple layers of commercial, 
industrial, residential, and on and on.  And they ALWAYS give way when 
the big guys move in and want a change.  Always.

No, some constitutional restraint on our lesser angels is necessary or 
not only would there be no place at the inn, there would be no 
(religious) inn.

The reader's particular community excepted, of course.

Steve
-- 
Prof. Steven D. Jamar    vox:  
202-806-8017
Howard University School of Law   fax:  
202-806-8428
2900 Van Ness Street NW   
mailto:[EMAIL PROTECTED]
Washington, DC  20008   
http://www.law.howard.edu/faculty/pages/jamar



___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[A.E. Brownstein]

The law challenged  in the Catholic Charities cases exempted only those 
religious organizations that discriminate on the basis of religion in 
hiring staff, primarily serve members of their own faith, and proselytize 
the recipients of their aid. Some faiths operate charities that satisfy 
these requirements. Many do not. The California Supreme Court apparently 
concluded that this kind of religious discrimination had no constitutional 
significance. I say apparently because the Court never directly confronts 
the core issue that the exemption criteria predictably includes certain 
faiths and excludes others on the basis of religious beliefs about the 
nature of a charitable ministry.

Alan Brownstein
UC Davis
At 03:13 PM 3/1/2004 -0500, you wrote:
http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF

California generally requires employers providing health insurance to 
their employees to ensure that such insurance covers the costs of 
contraception.  California has enacted a limited religious accommodation 
that exempts certain religious organzations (viz., churches), but not 
others, from this requirement.  Catholic Charities does not satisfy any of 
the four statutory criteria for the exemption, and it sued under the 
Establishment and Free Exercise Clauses to have the exemption 
extended.  The Cal Supreme Court ruled 6 to 1 that the limited exemption 
was constitutional -- although the court did tentatively conclude that at 
least one of the criteria was of dubious constitutionality.

The case raises numerous interesting issues concerning, e.g., the 
Ministerial Exception, general applicability under Lukumi, the so-called 
hybrid exception, Larson v. Valente, the scope of California's state 
constitutional free exercise guarantee, the notion of "substantial 
burden," etc.  To my mind one of the most interesting and difficult 
questions it raises is how a legislature can and should craft, and limit, 
religious accommodations.  The case demonstrates, in my view, why an 
across-the-board standard for exemptions -- such as those codified in 
federal and state RFRAs -- is preferable to a series of stand-alone, 
statute-by-statute legislative exemptions.
___
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
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: RLUIPA, was RE: Potentially Important California State Case

[Steven Jamar]

Religion is a special category.  It is treated specially in the Constitution and in  IHR instruments and in constitutions worldwide.

NIMBY ought not be allowed to reign for siting religious structures.  There ought to be good space zoned for religious groups to meet.  And for certain size groups, homes should be ok too.

We ought to encourage beneficent organizations.  We need not make every parcel into a tax-free church.  But I know of no community where that has in fact occurred.  What I see far more often is states and communities competing to give tax free land and other advantages to employers to locate in their communities.  I don't see that changing.

In short, I think Marci's concern with respect to tax base is misplaced and has next to nothing to do with constitutional issues.  And I don't think religious anything can be left to pure majoritarianism.

And finally, in my experience, many zoning boards and land (ab)use committees are either beholding to the monied interests or engage in petty actions just because they can - especially when it affects less popular things like religious buildings of certain types and sizes.

Last time I looked as zoning schemes, they were impenetrable, detailed, and riddled with nonsense with multiple layers of commercial, industrial, residential, and on and on.  And they ALWAYS give way when the big guys move in and want a change.  Always.

No, some constitutional restraint on our lesser angels is necessary or not only would there be no place at the inn, there would be no (religious) inn.

The reader's particular community excepted, of course.

Steve
-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"Our scientific power has outrun our spiritual power. We have guided missiles and misguided man."

- Martin Luther King Jr., "Strength to Love", 1963


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[Hamilton02]

Well, let me just say that I find Chip's and Bob's article on church autonomy posted today troubling.  It was part of a church autonomy conference at BYU earlier this month.  I will be posting my article for the conference on SSRN in the near future.  I don't think the issues are obscure or complex.  Rather, the public good is the only correct guiding principle in deciding whether generally applicable, neutral laws apply to religious institutional conduct, not whether religious groups should be shielded from the application of general laws.  Belief, and therefore internal structure, may be protected, a la Reynolds and Smith, but there is no reason to give religious institutions special treatment relieving them from obligations under general laws. There is no philosophical or theological or legal theory that supports shielding religious groups in this way.  It's all a hearkening back to the clergy privilege in England that rightfully was rejected eventually.  Children are seriously, and I mean seriously, at risk under any version of church autonomy.  Lipservice to children is not enough; the law must make it possible for them to be fully protected.  An overreading of the Court's religious institution cases led the Catholic Church to  believe it had a right to "autonomy" and therefore to some of its worst errors involving children in the last several decades.

I totally agree with Marty on vaccinations.  I also agree with Marty that the key with understanding RLUIPA is the assessment of harm on each side, and I find the assessments by the religious groups to be divorced from any consideration of the general public good.  I find it amusing, though, that Marty would say that when state and local interests are important, they will prevail.  The California RLUIPA bill that was killed proposed that many interests dear to the hearts of private homeowners can never be considered to be "compelling."  The push by those defending RLUIPA is to say that NOTHING satisfies the compelling interest test but the very RARE land use law.  This is an attempt to takeover land use law for the benefit of religious groups, period. And I don't see the federal government's intervention in these cases muting that point at all.   I wish it were otherwise.

Marci


n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Well, I think I do agree with Marci on one thing:  Among the worst, least defensible religious accommodations are "exemptions for clergy for child abuse reporting and for medical neglect of children."  Indeed, I've posted several times here that I think many religious exemptions from vaccination requirements are unconstitutional.  Even here, however, the questions are often very complex.  In the child-abuse setting, for example, see the questions examined with care in the extremely detailed and thoughtful draft article to which Chip Lupu linked earlier today.
  
Marci's principal point -- and it's one for which I have a great deal of sympathy -- is that religious accommodations ought to be suspect if they impose significant costs on other private parties.  I think the Court agrees with this, too -- see, e.g., Caldor, Hardison and Walsh.  Indeed, it's difficult to find anyone who doesn't agree with this.  Even Michael McConnell has written that a release-time program such as that at issue in Zorach would be unconstitutional if "the nonparticipating students were inflicted with 'an entirely wasted hour of school.'"
  
The question on which Marci and her RLUIPA detractors primarily disagree is whether and to what extent RLUIPA imposes significant costs on neighbors of the religious properties.  In my view, this is best viewed not as a debate about the constitutionality of RLUIPA itself, but instead as a dispute about its case-specific application.  In cases where the state can demonstrate such harmful effects, it will prevail under the RLUIPA test, particularly where the state has been unwilling to impose those costs on others in the context of exemptions for nonreligious properties.  If the state can't prove such harms, or where it has been willing to permit such harms in nonreligious cases, the exemption for the analogous religious use will be reasonable and constitutional.   
 
- Original Message - 



___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: RLUIPA, was RE: Potentially Important California State Case

[Hamilton02]

I have yet to see a community where a religious organization cannot find a proper site at all.  What usually happens in my experience is that the religious organization gets a deal on a piece of property that is improperly zoned for the proposed use and then fights the land use laws to save money.  Call me cynical, but I've seen it over and over again.  In the alternative, a group with few members in the community finds the "perfect" site, but does not look any farther.  RLUIPA encourages religious groups to engage in this behavior.  I don't see much of an unconstitutional burden on a church that has to shop for land between various communities.  That's how I found my home.  

 I also fail to understand this argument against siting restrictions that turn on tax revenue.  Religious groups get multiple tax exemptions.  Why do they then get an additional argument that communities' concerns with tax revenues are unconstitutional?  I am being very serious here--where does the entitlement theory for religious groups stop?  Cities need a tax base to be able to afford to operate.  Where religious buildings take large tracts of land tax-free, they close off opportunities for tax revenues.  Why is it not a compelling interest for a community to consider what its tax base is?

Now, if that determination is a pretext for discrimination, that is unconstitutional. But when it is sincere, when the city truly has economic concerns that need to be met, where is the the constitutional or policy problem in taking into account whether a particular piece of property goes to tax-exempt or tax-generating properties?  If religious groups want to be treated as similarly situated to businesses in the land use process, don't they have to forego their tax exempt status?
 
Marci


In a message dated 3/1/2004 6:50:47 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

If I recall correctly, one serious complaint of denial of religious liberty in pre-Revolutionary America arose from the requirement in some states that religious meetings only be held at licensed locations. Does that justify particular concern about laws that tell religious groups where they may meet?

  

Zoning laws that restrict the siting of new churches and that in effect discriminate in favor of those religious groups that have existing facilities are very troubling to me. I've been told by a minister in charge of church planting that in some cities he could not find any suitable land on which a church could be built. Zoning restrictions and particular land use decisions seem to be driven by the desire of local governments not lose property tax revenues (which are lost when property becomes exempt from taxation).

  

Marci, don't you find any of this at least somewhat troubling? 

 

Mark S. Scarberry

 Pepperdine University School of Law

  




___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[Marty Lederman]

Well, I think I do agree with Marci on one 
thing:  Among the worst, least defensible religious accommodations are 
"exemptions for clergy for child abuse reporting and for medical neglect of 
children."  Indeed, I've posted several times here that I think 
many religious exemptions from vaccination requirements are 
unconstitutional.  Even here, however, the questions are often very 
complex.  In the child-abuse setting, for example, see the questions 
examined with care in the extremely detailed and thoughtful draft article to 
which Chip Lupu linked earlier today.
 
Marci's principal point -- and it's one for which I 
have a great deal of sympathy -- is that religious accommodations ought to 
be suspect if they impose significant costs on other private parties.  I 
think the Court agrees with this, too -- see, e.g., Caldor, 
Hardison and Walsh.  Indeed, it's difficult 
to find anyone who doesn't agree with this.  Even Michael 
McConnell has written that a release-time program such as that at issue in 
Zorach would be unconstitutional if "the nonparticipating students were 
inflicted with 'an entirely wasted hour of school.'"
 
The question on which Marci and her RLUIPA 
detractors primarily disagree is whether and to what extent 
RLUIPA imposes significant costs on neighbors of the 
religious properties.  In my view, this is best viewed not as a debate 
about the constitutionality of RLUIPA itself, but instead as a dispute about its 
case-specific application.  In cases where the state can demonstrate such 
harmful effects, it will prevail under the RLUIPA test, 
particularly where the state has been unwilling to impose those costs on others 
in the context of exemptions for nonreligious properties.  If the 
state can't prove such harms, or where it has been willing to permit such harms 
in nonreligious cases, the exemption for the analogous religious use will be 
reasonable and 
constitutional.   

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: [EMAIL PROTECTED] 
  Sent: Monday, March 01, 2004 6:33 
PM
  Subject: Re: Potentially Important 
  California State Case
  In a message dated 3/1/2004 5:13:11 PM Eastern 
  Standard Time, [EMAIL PROTECTED] 
  writes:
  Those that do not, in my view, pass muster are, e.g., those that 
do not alleviate significant, government-imposed burdens on religious 
exercise, those that do impose significant burdens on other private parties, 
those that violate the Free Speech Clause, and those that are a form of 
sect-discrimination.  RFRA and RLUIPA do not share these faults, and 
they have the added virtue of ensuring that the legislature treats all 
comparable burdens on religious liberty with equal regard (thereby 
addressing, e.g., Souter's concern in Kiryas Joel).    
I don't quite get the 
  principle that distinguishes those accommodations you like from those you 
  don't like, but we can agree to disagree on where the line is drawn.  I 
  would draw the line at narrowly tailored practice-specific accommodations and 
  Amos-type accommodations that are necessary to avoid Establishment Clause 
  entanglement.  The across-the-board accommodation formula is a formula 
  for legislatures to avoid making the hard policy choices given to them by the 
  state and federal constitutions and to seriously harm the public 
  interest.  The worst accommodations on the books, from my perspective, 
  are the exemptions for clergy for child abuse reporting and for medical 
  neglect of children, because legislatures passed those exemptions without 
  asking what was in the best interest of the public, and the 
  children.In any event, RLUIPA is an enormous burden on private 
  parties--especially neighbors of religious landowners, who are treated less 
  well under the law than the religious landowner.  Even one day with a 
  homeowner faced with a 69,000 square-foot building to be used close to 24/7 
  might persuade you otherwise.  RLUIPA is fundamentally unfair to all 
  other landowners.  While the argument for RLUIPA in prisons may be, as 
  the 9th Cir pointed out in oral argument on a RLUIPA land use case,  more 
  compelling, because it can involve the possibility of any worship at all, the 
  questions in RLUIPA land use cases involve the preference of the religous 
  landowner to have this particular piece of land, this particular piece of 
  property, regardless of the laws.  Worship can go on no matter what, and 
  the notion that the Constitution mandates, or federal law should mandate, a 
  particular location for a church simply makes no sense.  
  Marci 
  
  

  ___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
___
T

RLUIPA, was RE: Potentially Important California State Case

[Scarberry, Mark]

If
I recall correctly, one serious complaint of denial of religious liberty in
pre-Revolutionary America arose from the requirement in some states that religious meetings
only be held at licensed locations. Does that justify particular concern about
laws that tell religious groups where they may meet?

 

Zoning laws that restrict the siting of
new churches and that in effect discriminate in favor of those religious groups
that have existing facilities are very troubling to me. I've been told by
a minister in charge of church planting that in some cities he could not find
any suitable land on which a church could be built. Zoning restrictions and
particular land use decisions seem to be driven by the desire of local
governments not lose property tax revenues (which are lost when property becomes
exempt from taxation).

 

Marci, don't you find any of this at
least somewhat troubling? 

 



Mark S. Scarberry

Pepperdine University School of Law

 



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Monday, March 01, 2004 3:33
PM
To: [EMAIL PROTECTED]
Subject: Re: Potentially Important
California State Case

 

In a message dated 3/1/2004 5:13:11
PM Eastern Standard Time, [EMAIL PROTECTED] writes:




Those
that do not, in my view, pass muster are, e.g., those that do not alleviate
significant, government-imposed burdens on religious exercise, those that do
impose significant burdens on other private parties, those that violate the
Free Speech Clause, and those that are a form of sect-discrimination. 
RFRA and RLUIPA do not share these faults, and they have the added virtue of
ensuring that the legislature treats all comparable burdens on religious
liberty with equal regard (thereby addressing, e.g., Souter's concern in Kiryas
Joel).    



I don't quite get the principle that distinguishes those accommodations you
like from those you don't like, but we can agree to disagree on where the line
is drawn.  I would draw the line at narrowly tailored practice-specific
accommodations and Amos-type accommodations that are necessary to avoid
Establishment Clause entanglement.  The across-the-board accommodation
formula is a formula for legislatures to avoid making the hard policy choices
given to them by the state and federal constitutions and to seriously harm the
public interest.  The worst accommodations on the books, from my
perspective, are the exemptions for clergy for child abuse reporting and for
medical neglect of children, because legislatures passed those exemptions
without asking what was in the best interest of the public, and the children.

In any event, RLUIPA is an enormous burden on private parties--especially
neighbors of religious landowners, who are treated less well under the law than
the religious landowner.  Even one day with a homeowner faced with a
69,000 square-foot building to be used close to 24/7 might persuade you
otherwise.  RLUIPA is fundamentally unfair to all other landowners. 
While the argument for RLUIPA in prisons may be, as the 9th Cir pointed out in
oral argument on a RLUIPA land use case,  more compelling, because it can
involve the possibility of any worship at all, the questions in RLUIPA land use
cases involve the preference of the religous landowner to have this particular
piece of land, this particular piece of property, regardless of the laws. 
Worship can go on no matter what, and the notion that the Constitution
mandates, or federal law should mandate, a particular location for a church
simply makes no sense.  

Marci






___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[Hamilton02]

In a message dated 3/1/2004 5:13:11 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Those that do not, in my view, pass muster are, e.g., those that do not alleviate significant, government-imposed burdens on religious exercise, those that do impose significant burdens on other private parties, those that violate the Free Speech Clause, and those that are a form of sect-discrimination.  RFRA and RLUIPA do not share these faults, and they have the added virtue of ensuring that the legislature treats all comparable burdens on religious liberty with equal regard (thereby addressing, e.g., Souter's concern in Kiryas Joel).    
 


I don't quite get the principle that distinguishes those accommodations you like from those you don't like, but we can agree to disagree on where the line is drawn.  I would draw the line at narrowly tailored practice-specific accommodations and Amos-type accommodations that are necessary to avoid Establishment Clause entanglement.  The across-the-board accommodation formula is a formula for legislatures to avoid making the hard policy choices given to them by the state and federal constitutions and to seriously harm the public interest.  The worst accommodations on the books, from my perspective, are the exemptions for clergy for child abuse reporting and for medical neglect of children, because legislatures passed those exemptions without asking what was in the best interest of the public, and the children.

In any event, RLUIPA is an enormous burden on private parties--especially neighbors of religious landowners, who are treated less well under the law than the religious landowner.  Even one day with a homeowner faced with a 69,000 square-foot building to be used close to 24/7 might persuade you otherwise.  RLUIPA is fundamentally unfair to all other landowners.  While the argument for RLUIPA in prisons may be, as the 9th Cir pointed out in oral argument on a RLUIPA land use case,  more compelling, because it can involve the possibility of any worship at all, the questions in RLUIPA land use cases involve the preference of the religous landowner to have this particular piece of land, this particular piece of property, regardless of the laws.  Worship can go on no matter what, and the notion that the Constitution mandates, or federal law should mandate, a particular location for a church simply makes no sense.  

Marci
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[Marty Lederman]

Marci:  I did not say that all 
statute-specific accommodations are unconstitutional.  Far from it.  I 
think, for instance, that the title VII exemption at issue in Amos is 
constitutional (at least as applied to nonprofit employers), as are the peyote 
exemptions, as is the post-Goldman military accommodation, etc.  
And I think some accommodations are unconstitutional, such as those at issue in 
Zorach, Texas Monthly, CHILD, and Thornton v. 
Caldor.  Those that do not, in my view, pass muster are, 
e.g., those that do not alleviate significant, 
government-imposed burdens on religious exercise, those that do impose 
significant burdens on other private parties, those that violate the 
Free Speech Clause, and those that are a form of sect-discrimination.  RFRA 
and RLUIPA do not share these faults, and they have the added virtue of ensuring 
that the legislature treats all comparable burdens on religious liberty with 
equal regard (thereby addressing, e.g., Souter's concern in Kiryas 
Joel).    
 
 

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: [EMAIL PROTECTED] 
  Sent: Monday, March 01, 2004 4:52 
PM
  Subject: Re: Potentially Important 
  California State Case
  In a message dated 3/1/2004 4:32:25 PM Eastern 
  Standard Time, [EMAIL PROTECTED] 
  writes:
  The case demonstrates, in my view, why an across-the-board 
standard for exemptions -- such as those codified in federal and state RFRAs 
-- is preferable to a series of stand-alone, statute-by-statute legislative 
exemptions. So, Marty, would you say 
  that the peyote exemptions cited with approval in Smith are unconstitutional, 
  while the acros-the-board exemptions are not?  I'm just wondering if you 
  can provide an example of an exemption that you think should not pass 
  muster?  Marci 
  
  

  ___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
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Potentially Important California State Case

[Hamilton02]

In a message dated 3/1/2004 4:32:25 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

The case demonstrates, in my view, why an across-the-board standard for exemptions -- such as those codified in federal and state RFRAs -- is preferable to a series of stand-alone, statute-by-statute legislative exemptions. 




So, Marty, would you say that the peyote exemptions cited with approval in Smith are unconstitutional, while the acros-the-board exemptions are not?  I'm just wondering if you can provide an example of an exemption that you think should not pass muster?  

Marci
___
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

Potentially Important California State Case

[Marty Lederman]

http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF
 
California generally requires 
employers providing health insurance to their employees to ensure that such 
insurance covers the costs of contraception.  California has enacted a 
limited religious accommodation that exempts certain religious 
organzations (viz., churches), but not others, from this requirement.  
Catholic Charities does not satisfy any of the four statutory criteria for the 
exemption, and it sued under the Establishment and Free Exercise Clauses to have 
the exemption extended.  The Cal Supreme Court ruled 6 to 1 that the 
limited exemption was constitutional -- although the court did tentatively 
conclude that at least one of the criteria was of dubious 
constitutionality.
 
The case raises numerous 
interesting issues concerning, e.g., the Ministerial Exception, general 
applicability under Lukumi, the so-called hybrid exception, Larson 
v. Valente, the scope of California's state constitutional free exercise 
guarantee, the notion of "substantial burden," etc.  To my mind one of the 
most interesting and difficult questions it raises is how a legislature can and 
should craft, and limit, religious accommodations.  The case 
demonstrates, in my view, why an across-the-board standard for exemptions -- 
such as those codified in federal and state RFRAs -- is preferable to a 
series of stand-alone, statute-by-statute legislative 
exemptions. 
___
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