Re: Recommentations of course materials for teaching "Muslim ban" case?

[Ira Lupu]

Mary Anne, this amicus brief filed in the 4th Circuit Muslim ban litigation
will suggest many good possibilities:
http://www.robbinsrussell.com/sites/default/files/appellate_pdf/FILED%20CA4%20AMICUS%20BRIEF%20-%20IRAP%20v%20Trump.pdf

You might consider assigning the brief itself.

On Thu, May 11, 2017 at 6:09 PM, Case, Mary Anne 
wrote:

> Students in my Con Law of Religion course want to devote a class to the
> Religion Clauses issues in the “Muslim ban” cases.  I would welcome
> suggestions as to what materials to assign, especially to a group that may
> not have other Con Law experience.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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> private.  Anyone can subscribe to the list and read messages that are
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-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
301-928-9178 (mobile, preferred)
202-994-7053 (office)
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
___
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Re: Johnson Amendment E.O.

[Michael Peabody]

In light of the concurrent dialogue on Trinity Lutheran Church v. Comer and
this discussion of the nature of non-profits, I would ask the question as
to whether churches, synagogues, mosques or other houses of worship are
even properly categorized under 501(c)(3).  Most 501(c)(3) charities are
anticipated to take on things that the government could otherwise do, but
for which the charities are better qualified or willing to do privately.
However, houses of worship primarily exist to engage in exercise of
religious practice, proselytize or otherwise do things which the government
is constitutionally prohibited from doing. The state can subsidize most
charities, but cannot subsidize houses of worship.  (I'm not talking about
hospitals or other public service entities operated by churches in this
analysis.)  Is it possible that houses of worship actually should be
categorized as a separate form of entity given how different they are from
other 501(c)(3) organizations?  Is 501(c)(3) stretched too thin?

I wonder if the real "home" for the tax-exempt status of religious
organizations is actually found in the actual separation of church and
state itself.  The state does not subsidize the worship activities of
churches (not even Trinity Lutheran is asking for this) and churches do not
subsidize the state through taxes.

Tax-exemption of churches existed prior to the IRS tax code, and certainly
before the Johnson Amendment in 1954, and even if Congress decided to
abandon the 501(c)(3) non-profit framework altogether, wouldn't the tax
exemption of churches survive separately under pre-existing American
notions of church-state separation?

Michael Peabody




On Tue, May 9, 2017 at 9:36 AM, Berg, Thomas C. <tcb...@stthomas.edu> wrote:

> I personally am OK with focusing on the free exercise clause in cases
> where the focus is on the house of worship. But I think that the free
> ex clause should also contain a strong principle of nondiscrimination
> against religion. Advocates have been pushed to rely on free speech because
> of the tendency of courts and commentators to say there's no free exercise
> claim unless the religious exercise is very significantly burdened. For
> example, the arguments that denials of benefits almost never constitute a
> burden; or White's dissent in Widmar v. Vincent arguing that the university
> could single out the religious group because it was a free exercise case
> only and the group was not burdened because it could meet somewhere off
> campus.
>
> -
> 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 <(651)%20962-4918>
> Fax: 651 962 4881 <(651)%20962-4881>
> E-mail: tcb...@stthomas.edu
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
> SSRN: http://ssrn.com/author=261564
> Weblog: http://www.mirrorofjustice.blogs.com
> 
> -
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
> *Sent:* Sunday, May 7, 2017 11:04:56 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Johnson Amendment E.O.
>
>
> Tom,
>
> I understand the lines are difficult to draw and I certainly do not claim
> to have a fully developed framework for drawing them. And I have some
> sympathy for the position that worship services should be characterized as
> religious exercise rather than speech so that accommodations of worship
> services and houses of worship do not necessarily trigger rigorous free
> speech review.
>
>
> What I have not seen, however, are scholars and advocates who argue for
> distinctive treatment of worship and houses of worship taking the necessary
> corollary step and recognizing that the exclusion of worship services from
> public property or the exclusion of houses of worship from general funding
> programs does not trigger rigorous free speech review.
>
>
> Would you agree with me, Tom, that in those situations where free
> exercise principles control and justify distinctive treatment for religion,
> religious claimants cannot also claim that free speech principles control
> and require equal treatment.
>
>
> Alan
>
>
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
> *Sent:* Thursday, May 4, 2017 5:52:49 PM
> *To:* Law & Religion issues for Law Acade

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

I personally am OK with focusing on the free exercise clause in cases where the 
focus is on the house of worship. But I think that the free ex clause should 
also contain a strong principle of nondiscrimination against religion. 
Advocates have been pushed to rely on free speech because of the tendency of 
courts and commentators to say there's no free exercise claim unless the 
religious exercise is very significantly burdened. For example, the arguments 
that denials of benefits almost never constitute a burden; or White's dissent 
in Widmar v. Vincent arguing that the university could single out the religious 
group because it was a free exercise case only and the group was not burdened 
because it could meet somewhere off campus.


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Sunday, May 7, 2017 11:04:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Tom,

I understand the lines are difficult to draw and I certainly do not claim to 
have a fully developed framework for drawing them. And I have some sympathy for 
the position that worship services should be characterized as religious 
exercise rather than speech so that accommodations of worship services and 
houses of worship do not necessarily trigger rigorous free speech review.


What I have not seen, however, are scholars and advocates who argue for 
distinctive treatment of worship and houses of worship taking the necessary 
corollary step and recognizing that the exclusion of worship services from 
public property or the exclusion of houses of worship from general funding 
programs does not trigger rigorous free speech review.


Would you agree with me, Tom, that in those situations where free exercise 
principles control and justify distinctive treatment for religion, religious 
claimants cannot also claim that free speech principles control and require 
equal treatment.


Alan




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 5:52:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I don't have a problem with that general idea, Alan. In some cases where 
religious activity takes the form of speech, free exercise principles are most 
controlling and may call for distinctive protection; in some cases free speech 
principles are the most controlling and call generally for equal treatment.


I don't know exactly where those lines are, but it seems to me that sermons by 
religious leaders to the congregation present a strong case for a distinctive 
principle of non-interference. (I brought up institutional separation as a 
distinctive religion-clause principle; it's not a free speech principle.) 
Hosanna-Tabor and other decisions tell us religious leadership is a core area 
of free exercise, as is the congregational setting. For government officials to 
survey and parse the meaning of sermons is also a core problem; and if the 
electioneering restriction were seriously enforced against churches, it would 
require such parsing because of the IRS's stated position that the restriction 
covers more than express advocacy. And if it were enforced, the burden would be 
very serious: removing tax deductibility entirely, and probably substantially 
reducing resources, based on one instance deemed to be a candidate endorsement.


I've framed these arguments as RFRA arguments, in article on "government 
benefits and religious organizational freedom" from 2009, which appears to be 
online only at SSRN 
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301685; see pp. 58-62, 
66-67). Lloyd Mayer makes by far the most complete RFRA analysis in his B.U. L. 
Rev. piece "Pulpit and Politics," also from 2009, 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273602, at 1161-97.



-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3

Re: Johnson Amendment E.O.

[Alan E Brownstein]

Tom,

I understand the lines are difficult to draw and I certainly do not claim to 
have a fully developed framework for drawing them. And I have some sympathy for 
the position that worship services should be characterized as religious 
exercise rather than speech so that accommodations of worship services and 
houses of worship do not necessarily trigger rigorous free speech review.


What I have not seen, however, are scholars and advocates who argue for 
distinctive treatment of worship and houses of worship taking the necessary 
corollary step and recognizing that the exclusion of worship services from 
public property or the exclusion of houses of worship from general funding 
programs does not trigger rigorous free speech review.


Would you agree with me, Tom, that in those situations where free exercise 
principles control and justify distinctive treatment for religion, religious 
claimants cannot also claim that free speech principles control and require 
equal treatment.


Alan




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 5:52:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I don't have a problem with that general idea, Alan. In some cases where 
religious activity takes the form of speech, free exercise principles are most 
controlling and may call for distinctive protection; in some cases free speech 
principles are the most controlling and call generally for equal treatment.


I don't know exactly where those lines are, but it seems to me that sermons by 
religious leaders to the congregation present a strong case for a distinctive 
principle of non-interference. (I brought up institutional separation as a 
distinctive religion-clause principle; it's not a free speech principle.) 
Hosanna-Tabor and other decisions tell us religious leadership is a core area 
of free exercise, as is the congregational setting. For government officials to 
survey and parse the meaning of sermons is also a core problem; and if the 
electioneering restriction were seriously enforced against churches, it would 
require such parsing because of the IRS's stated position that the restriction 
covers more than express advocacy. And if it were enforced, the burden would be 
very serious: removing tax deductibility entirely, and probably substantially 
reducing resources, based on one instance deemed to be a candidate endorsement.


I've framed these arguments as RFRA arguments, in article on "government 
benefits and religious organizational freedom" from 2009, which appears to be 
online only at SSRN 
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301685; see pp. 58-62, 
66-67). Lloyd Mayer makes by far the most complete RFRA analysis in his B.U. L. 
Rev. piece "Pulpit and Politics," also from 2009, 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273602, at 1161-97.



-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 5:30:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.



Whoops. I accidentally hit "send" too quickly on this post. I was going to ask 
you, Tom, how you decide when religious speech gets more protection than other 
speech and whether it only does so when clergy are speakers. Also, what would 
be wrong with characterizing those clergy expressive activities you think 
deserve protection against state interference as religious exercise rather than 
speech for constitutional purposes?


Alan



From: Alan E Brownstein
Sent: Thursday, May 4, 2017 3:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not 

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[James Oleske]

The petitioner's briefing at the cert stage of this case has been
profoundly discouraging.

Although the case does raise a genuinely interesting question that may be
worthy of Supreme Court review -- must a RFRA plaintiff show "an honest
belief that the practice is important to his free exercise of religion" --
the original cert petition completely ignored the CAAF's "honest
belief/important" language in an effort to portray the case as implicating
a circuit split over whether the religious practice at issue must be
"religiously compelled."

Then, after the federal government pointed out this mischaracterization and
the petitioner was forced to acknowledge the CAAF's "honest
belief/important" language in its reply, the petitioner continued to insist
the CAAF was on the wrong side of a circuit split without acknowledging
that the two circuits that have used the same "honest belief/important"
test as the CAAF (5th and 10th) are circuits petitioner claims are on the
right side of the split. *See *Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316
(10th Cir. 2010) ("The practice burdened need not be central to the
adherent's belief system, but the adherent must have an honest belief that
the practice is important to his free exercise of religion.") (quoting Sossamon
v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir. 2009)).

Although the reader would never know it from the petitioner's argument,
 the CAAF decision was explicitly rooted in the 5th and 10th Circuit's
approaches:

But while we will not assess the importance of a religious practice to a
practitioner's exercise of religion or impose any type of centrality test,
a claimant must at least demonstrate “an honest belief that the practice is
important to [her] free exercise of religion” in order to show that a
government action substantially burdens her religious exercise. Sossamon,
560 F.3d at 332; see also Ford, 352 at 593–94. A substantial burden is not
measured only by the secular costs that government action imposes; the
claimant must also establish that she believes there are religious costs as
well, and this should be clear from the record. See Ira C. Lupu, Hobby
Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. &
Gender 35, 80 (2015); cf. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th
Cir.2010).

United States v. Sterling, 75 M.J. 407, 417–18 (C.A.A.F. 2016)


In the ultimate irony, the petitioner's reply brief relies on the 10th
Circuit's decision in Calbone without acknowledging that that decision
approved the "honest belief" test applied by CAAF.

As of today, there is no circuit split over the "honest belief" test
applied by the 5th Circuit, the 10th Circuit, and the CAAF. Perhaps the
issue is important enough that the Supreme Court should grant cert in the
absence of as split, but the petitioner's briefing in this case has been
far less than forthright.

- Jim


On Fri, May 5, 2017 at 8:20 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Paul Clement's reply brief
> .
> Case schedule for Conference on 05/18.
>
> On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman  georgetown.edu> wrote:
>
>> Now that Paul Clement has filed a cert. petition
>> 
>> in this case, I thought I might revive the thread, which didn't inspire any
>> reactions last time around!  Perhaps I'm alone, but it strikes me that the
>> case raises a very interesting and important question about how to assess
>> whether a burden on religious exercise is "substantial" for RFRA purposes.
>> To recap the very straightforward facts:
>>
>> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
>> signs in her workspace, each containing only the words “No weapon formed
>> against me shall prosper”--two of them in large (28-point) font.  The
>> statement derives from Isaiah 54:17.  She posted one sign on the side of
>> her computer tower, one above her computer screen, and one above her desk
>> mailbox. The signs were large enough for those walking by her desk, and
>> Marines seated at her workspace, to read.
>>
>> 2.  Her superior officer insisted that she take the signs down; indeed,
>> that officer threw her signs in the trash, and she continued to repost
>> them.  Therefore Sterling was court-martialed for insubordination, and
>> sentenced to a bad-conduct discharge and a reduction in pay grade--no
>> small thing in terms of sanctions.  As far as the record shows, her
>> superior officer was not motivated by the fact that the signs were, or 
>> Sterling
>> was, religious--he would have done the same no matter what the
>> employee's motivation was, and no matter whether the signs were scriptural.
>>
>> 3.  Sterling testified that the signs had religious significance to her,
>> and that she posted them in response to difficulties she was experiencing

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[David Cruz]

Okay, I’ll bite.  I don’t have firm views yet on this.  My questions below all 
go to the “front end” of the analysis.  And I get the distinction between a 
court’s engaging in its own (God’s-eye?) analysis of whether a practice is 
important to a religion simpliciter/in the abstract and a court’s asking 
whether a RFRA claimant herself regards an exercise of religion as important to 
her.

Question 1: What is the (semantic? logical?) relationship, if any, to an 
action’s being important to a person and its being an exercise of religion?  
Perhaps that’s not where “importance” fits in the RFRA analysis, so I’ll ask 
further questions.

Question 2: Wouldn’t any religiously motivated action, and not just religiously 
motivated actions meeting various thresholds (e.g., central, mandated) be an 
“exercise of religion” under RFRA?

Question 3: RFRA is triggered by “substantial” burden’s on a person’s exercise 
of religion.  In the abstract I could see an argument that if there’s some 
religiously motivated action a person is barred from engaging in, but that 
action isn’t really important to her as a matter of religious belief, then 
given all the religiously motivated things she could still do, there’s no 
“substantial” burden on her exercise of religion-as-a-whole.  However, RLUIPA 
defines “exercise of religion” to include “any exercise of religion …” 
(emphasis added) not just “important exercises of religion.”  So this can’t be 
the significance of the importance of a particular exercise, right?  (As I ask, 
I’m reminded of Scalia’s “throwing rice at a wedding” contention from Smith.)

Question 4: Sterling wasn’t allowed to post her signs in the workplace.  She 
could presumably have kept a note in her drawer, worn an engraved bracelet, 
emblazoned it across her dashboard if she had a car, ….  Is the lack of 
demonstrated importance of posting legible-to-other signs in her work area 
somehow enough in light of these other places she could post her message enough 
to convert a complete prohibition of engaging in a religiously motivated 
practice (where she sought to) to be less than a “substantial” burden?

Question 5a: Or am I wrong on the facts to characterize her action as 
“religiously motivated,” rather than just having “religious significance”?  
Question 5b: If so, what is the distinction, exactly, and to what text of RFRA 
should it matter?


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Friday, May 5, 2017 at 8:20 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Paul Clement's reply 
brief<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/05/16-814-pet-cert-reply.pdf=E,1,m0ZKnxfWUZI50lFDsNO1NugePJq7sgBBwVsKpJvqMhgePQY91ebO9uJax6mBoiq5Z3ywpxyQISM_xme6szULzF0ucnM9jzSOsn9NHr5Twg,,=1>.
  Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> 
wrote:
Now that Paul Clement has filed a cert. 
petition<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf=E,1,4DSslEr_JebobJ7WdRcTrDIUPz_8FnEWpN5XDA_qnGZTQXFUNXd4VhjR5uoxs-5iWSCXbJesYmg_SbrxfJOYV4vkJd9NurnDnDQn6mUJN9Vf=1>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  [snip]

___
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: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Paul Clement's reply brief
.
Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman  > wrote:
>
>> For purposes of a project I'm currently working on, I'm genuinely curious
>> whether any readers on the list think that there was a substantial burden
>> here.  Paul Clement argued on behalf of the plaintiff's cause, and there
>> were a slew of amicus briefs, so I assume there's a serious dispute out
>> there.  I'd like to understand it better, and to be able to put the burden
>> question in the best possible light.  (Please note that I am putting aside
>> the question of whether the Air Force would still win on 

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

I think that it's probably best, if possible, to reduce the severity of the 
electioneering restriction (remember, one instance of an endorsement is a 
violation in theory) as to both religious and secular organizations. (Weakening 
it for both may be the current situation in practice, and the current proposed 
bills would codify it.) But regardless of that, I think that there is a 
distinctive argument for protection of ministers and sermons.


Chip, I'm surprised that you wouldn't see any distinctive constitutional 
problem in government officials surveying and parsing the content of a sermon 
to decide whether statements were just pointed religious rhetoric or a campaign 
endorsement. I would have thought that this is similar to the government 
involvement in evaluating clergy functions that you find impermissible in your 
argument for the ministerial exemption.


If this issue can be best framed as a RFRA issue (as I think it can; see my 
post to Alan), then the right to block government interference in sermons is 
strong but not absolute. There is a compelling interest in preventing imminent 
threats of violence (Brandenburg). There is a compelling interest in preventing 
defamation done with intent or actual malice, at least where it is not limited 
to or intertwined with church discipline of a member. (Why not use the actual 
malice standard from NYT v. Sullivan, as you and Bob did quite convincingly in 
your piece about institutional immunity for sexual-abuse claims.)


But as Lloyd Mayer shows in detail in his piece, protecting ordinary sermons 
against IRS interference is not needed to serve compelling interests in 
protecting the fisc or preventing the flow of political money into religious 
organizations. The restriction hasn't been applied to churches for years, and 
it would be hard to show serious harms from that. As to the "privilege" given 
to churches, I don't think every case of exemption is a privilege (and claiming 
that it gives churches a real power advantage is in some tension with the 
common claim that most churches don't want it and would be harmed by exercising 
it (I agree with the latter as a policy matter)).


Texas Monthly did not say that all tax exemptions for religious organizations 
or claimants are improper or unconstitutional. If an Amish college or social 
service objected to paying taxes into the social security system, would it be 
unconstitutional for Congress to exempt it? Was the exemption for self-employed 
Amish in Lee--which the Court relied on to show that Congress could accommodate 
Amish objections within reason--actually unconstitutional?


Even the plurality opinion in Texas Monthly said that a big part of the problem 
with the sales-tax exemption was that sales taxes impose no significant 
deterrent to religious exercise: in contrast to flat taxes, they are charged 
incrementally on each sale and so are very unlikely (at least when set at a low 
level) to reduce the activity dramatically. By contrast, as I've said, the 
threat of total loss of deductibility for one statement deemed to be a 
candidate endorsement, under somewhat unclear rules, would be (if it were 
enforced) a very significant deterrent to pointed political analysis in 
sermons. There are very good reasons why the IRS usually leaves it unenforced.


I'm relying on RFRA, which I know you believe doesn't work (but I believe 
does). And that's another bigger conversation.


Today, of course, this discussion is academic, because Trump's order doesn't 
take on any hard issue.


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Ira Lupu <icl...@law.gwu.edu>
Sent: Thursday, May 4, 2017 7:08:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a v

Re: Johnson Amendment E.O.

[Eric J Segall]

I was referring to special rules for sermons as opposed to public speeches by 
the leaders of Planned Parenthood or the NRA.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 9:20 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:


The pending bills to amend the Johnson Amendment would apply to religious and 
secular charities alike.



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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Eric J Segall [eseg...@gsu.edu<mailto:eseg...@gsu.edu>]
Sent: Thursday, May 04, 2017 9:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

I am new to this issue so pardon what might be an ignorant question. The 
government says to most non-profits if you want special tax treatment, you must 
give up certain rights to political speech. If that is constitutional, it seems 
like the government could say to churches if you want special tax treatment, 
you too must give up the exact political speech rights. Why in the world would 
we privilege political speech by churches over political speech by 
non-churches? Leaving aside EC and EP concerns, that seems plainly wrong.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 8:09 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a violation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0>
SSRN: 
http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0>
Weblog: http://www.mirrorofjustice.blogs.com 
<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

The pending bills to amend the Johnson Amendment would apply to religious and 
secular charities alike.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Eric J Segall [eseg...@gsu.edu]
Sent: Thursday, May 04, 2017 9:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

I am new to this issue so pardon what might be an ignorant question. The 
government says to most non-profits if you want special tax treatment, you must 
give up certain rights to political speech. If that is constitutional, it seems 
like the government could say to churches if you want special tax treatment, 
you too must give up the exact political speech rights. Why in the world would 
we privilege political speech by churches over political speech by 
non-churches? Leaving aside EC and EP concerns, that seems plainly wrong.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 8:09 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a violation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0>
SSRN: 
http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0>
Weblog: http://www.mirrorofjustice.blogs.com 
<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=eAw3%2BZ7F3WA6cE7sAuUlXMMCvCnjB1yxmOQ12UiMqxQ%3D=0>
-

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Alan E Brownstein 
&l

Re: Johnson Amendment E.O.

[Eric J Segall]

I am new to this issue so pardon what might be an ignorant question. The 
government says to most non-profits if you want special tax treatment, you must 
give up certain rights to political speech. If that is constitutional, it seems 
like the government could say to churches if you want special tax treatment, 
you too must give up the exact political speech rights. Why in the world would 
we privilege political speech by churches over political speech by 
non-churches? Leaving aside EC and EP concerns, that seems plainly wrong.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 8:09 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a violation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0>
SSRN: 
http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0>
Weblog: http://www.mirrorofjustice.blogs.com 
<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=eAw3%2BZ7F3WA6cE7sAuUlXMMCvCnjB1yxmOQ12UiMqxQ%3D=0>
-

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religi

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

I don't have a problem with that general idea, Alan. In some cases where 
religious activity takes the form of speech, free exercise principles are most 
controlling and may call for distinctive protection; in some cases free speech 
principles are the most controlling and call generally for equal treatment.


I don't know exactly where those lines are, but it seems to me that sermons by 
religious leaders to the congregation present a strong case for a distinctive 
principle of non-interference. (I brought up institutional separation as a 
distinctive religion-clause principle; it's not a free speech principle.) 
Hosanna-Tabor and other decisions tell us religious leadership is a core area 
of free exercise, as is the congregational setting. For government officials to 
survey and parse the meaning of sermons is also a core problem; and if the 
electioneering restriction were seriously enforced against churches, it would 
require such parsing because of the IRS's stated position that the restriction 
covers more than express advocacy. And if it were enforced, the burden would be 
very serious: removing tax deductibility entirely, and probably substantially 
reducing resources, based on one instance deemed to be a candidate endorsement.


I've framed these arguments as RFRA arguments, in article on "government 
benefits and religious organizational freedom" from 2009, which appears to be 
online only at SSRN 
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1301685; see pp. 58-62, 
66-67). Lloyd Mayer makes by far the most complete RFRA analysis in his B.U. L. 
Rev. piece "Pulpit and Politics," also from 2009, 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273602, at 1161-97.



-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 5:30:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.



Whoops. I accidentally hit "send" too quickly on this post. I was going to ask 
you, Tom, how you decide when religious speech gets more protection than other 
speech and whether it only does so when clergy are speakers. Also, what would 
be wrong with characterizing those clergy expressive activities you think 
deserve protection against state interference as religious exercise rather than 
speech for constitutional purposes?


Alan



From: Alan E Brownstein
Sent: Thursday, May 4, 2017 3:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not involve treating religious speech differently than non-religious 
speech. It involves treating religious conduct differently than non-religious 
conduct. Religious accommodations do that all the time.


Also, I think that when we confront religious expressive activity that in real 
terms is both religious exercise and speech, it may be that the best decision 
in some cases is to characterize the religious expressive activity as religious 
exercise rather than speech. Thus, for example, it may be that cases like Good 
News Club should not have been decided on free speech grounds, but rather as 
discrimination against religious exercise. That would arguably permit an 
accommodation for speech that is part of a worship without violating free 
speech purposes. Maybe the better analysis is that worship services should be 
considered religious exercise rather than speech for constitutional purposes. 
But that characterization would have to apply across the board.


The alternative is to argue that a worship service is speech for the purpose of 
protecting it against discrimination, but it isn't speech for the purpose of 
evaluating discriminatory laws that favor it.


One can argue that free exercise values justify discriminating in favor of 
religious speech in some circumstances so tha

Re: Johnson Amendment E.O.

[Ira Lupu]

I am wondering how far Tom's notion of privilege for sermons (compared with
all other communications by leaders of non-profit groups or entities) can
be carried.  Does anyone think that a clergyman, speaking in a sermon, has
a privilege to defame a third party who is not a member of, or in any other
relationship to, the worship community?  How about to incite imminent
violence, or to threaten others with violence?  If there are no "sermon"
privileges with respect to these speech wrongs, why should we treat
differently those sermons that demonstrate a violation of the terms of tax
exempt status? (The "ministerial exception" does not rest on a speech
privilege, but let's not rehash all of that in this thread.) There is no
justification for allowing tax deductible contributions to support
political advocacy by paid clergy on any terms different from what is
allowed to comparable spokespersons for secular non-profits. Indeed, Texas
Monthly strongly suggests there is a constitutional bar on any such
religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending
into worship services agents wearing a wire, etc.  But so is the IRS.  And,
as I recall, leading academics have suggested that infiltration of and
spying on mosques in America is completely justified by the dangers of
terrorism. I think that would be a presumptively terrible idea, but the
relevant standards should be no different for a mosque as compared to a
meeting of the White Nationalist Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. <tcb...@stthomas.edu> wrote:

> Alan, do you think that "there can no special protection for religious
> speech" always trumps "don't delve into the content of clergy
> communications"? The rejection of clergy malpractice claims, which is
> thought to rest on 1st Amendment grounds, is a special protection for
> clergy communications and not communications by other counselors. Why don't
> ministers' sermons likewise fit into the zone where there is special
> concern for non-interference?
>
> -
> 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 4881
> E-mail: tcb...@stthomas.edu
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
> SSRN: http://ssrn.com/author=261564
> Weblog: http://www.mirrorofjustice.blogs.com
> 
> -
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
> *Sent:* Thursday, May 4, 2017 2:01:34 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Johnson Amendment E.O.
>
>
> I understand the concern that content-based constraints prohibiting the
> endorsement of candidates during sermons by clergy during worship services
> interfere with religious liberty. But it is also the case that such speech
> is a distinctive religious voice on electoral choices by the polity. The
> Court has held repeatedly that religious speech constitutes a viewpoint and
> that discrimination against such speech constitutes viewpoint
> discrimination -- even if the speech is expressed in an activity that is
> essentially a worship service. (Good News Club etc.)
>
>
> The prohibition against viewpoint discrimination has to be applied in an
> even-handed way. If discrimination against religious speech is
> unconstitutional viewpoint discrimination, discrimination in favor of
> religious speech has to be unconstitutional viewpoint discrimination as
> well.
>
>
> Religion cannot be some kind of constitutional chameleon that is a
> viewpoint of speech when it is disfavored by discriminatory speech
> restrictions but is not a viewpoint of speech when it is favored by
> discriminatory speech regulations. Thus, any order that required the IRS to
> enforce speech regulations less rigorously for religious speakers and
> institutions than secular speakers and institutions should constitute
> viewpoint discrimination on its face and be subject to strict scrutiny
> review. (And then, of course, there are establishment clause concerns.)
>
>
> As to the policy issues raised by legislation to limit the Johnson
> Amendment, Rabbi Saperstein's arguments are persuasive, but probably
> understate the consequences of a formal change in this tax provision.
> Sermons are broadcast today. Religious groups engage in door to door
> proselytizing. Many houses of

Re: Johnson Amendment E.O.

[Alan E Brownstein]

Whoops. I accidentally hit "send" too quickly on this post. I was going to ask 
you, Tom, how you decide when religious speech gets more protection than other 
speech and whether it only does so when clergy are speakers. Also, what would 
be wrong with characterizing those clergy expressive activities you think 
deserve protection against state interference as religious exercise rather than 
speech for constitutional purposes?


Alan



From: Alan E Brownstein
Sent: Thursday, May 4, 2017 3:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not involve treating religious speech differently than non-religious 
speech. It involves treating religious conduct differently than non-religious 
conduct. Religious accommodations do that all the time.


Also, I think that when we confront religious expressive activity that in real 
terms is both religious exercise and speech, it may be that the best decision 
in some cases is to characterize the religious expressive activity as religious 
exercise rather than speech. Thus, for example, it may be that cases like Good 
News Club should not have been decided on free speech grounds, but rather as 
discrimination against religious exercise. That would arguably permit an 
accommodation for speech that is part of a worship without violating free 
speech purposes. Maybe the better analysis is that worship services should be 
considered religious exercise rather than speech for constitutional purposes. 
But that characterization would have to apply across the board.


The alternative is to argue that a worship service is speech for the purpose of 
protecting it against discrimination, but it isn't speech for the purpose of 
evaluating discriminatory laws that favor it.


One can argue that free exercise values justify discriminating in favor of 
religious speech in some circumstances so that viewpoint discrimination in 
favor of religious speech withstands rigorous review. But that really 
challenges core free speech principles when discrimination against the same 
religious expressive activity is condemned as viewpoint discrimination.


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 2:04:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutiona

Re: Johnson Amendment E.O.

[Alan E Brownstein]

Your broad question isn't easy to answer. But let me address your example. I 
don't think professional malpractice claims in general raise free speech 
issues. Medical malpractice and legal malpractice involve professional 
misconduct. We understand the speech that doctors, lawyers, psychotherapists 
etc. express in providing services to their clients as conduct, e.g., the 
practice of medicine. So I think  the rejection of clergy malpractice claims 
does not involve treating religious speech differently than non-religious 
speech. It involves treating religious conduct differently than non-religious 
conduct. Religious accommodations do that all the time.


Also, I think that when we confront religious expressive activity that in real 
terms is both religious exercise and speech, it may be that the best decision 
in some cases is to characterize the religious expressive activity as religious 
exercise rather than speech. Thus, for example, it may be that cases like Good 
News Club should not have been decided on free speech grounds, but rather as 
discrimination against religious exercise. That would arguably permit an 
accommodation for speech that is part of a worship without violating free 
speech purposes. Maybe the better analysis is that worship services should be 
considered religious exercise rather than speech for constitutional purposes. 
But that characterization would have to apply across the board.


The alternative is to argue that a worship service is speech for the purpose of 
protecting it against discrimination, but it isn't speech for the purpose of 
evaluating discriminatory laws that favor it.


One can argue that free exercise values justify discriminating in favor of 
religious speech in some circumstances so that viewpoint discrimination in 
favor of religious speech withstands rigorous review. But that really 
challenges core free speech principles when discrimination against the same 
religious expressive activity is condemned as viewpoint discrimination.


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Berg, Thomas C. <tcb...@stthomas.edu>
Sent: Thursday, May 4, 2017 2:04:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrut

Re: Johnson Amendment E.O.

[Berg, Thomas C.]

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
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 4881
E-mail: 
tcb...@stthomas.edu<https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3=mailto%3atcberg%40stthomas.edu>
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.


I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrutiny review. (And then, of course, there are 
establishment clause concerns.)


As to the policy issues raised by legislation to limit the Johnson Amendment, 
Rabbi Saperstein's arguments are persuasive, but probably understate the 
consequences of a formal change in this tax provision. Sermons are broadcast 
today. Religious groups engage in door to door proselytizing. Many houses of 
worship have large signs communicating religious messages to the community. 
Religious institutions communicate through social media to their congregants 
and to the general public. All of this is done in the ordinary course of their 
activities. All of these actions could be employed to support candidates during 
an election.


Further, there is a reason so many clergy oppose tampering with the Amendment. 
They do not want their houses of worship and institutions transformed and 
divided by partisan politics. And they know that once some congregations in 
their communities start to endorse candidates, it will be difficult for others 
to remain silent and cede the public election square exclusively to other 
faiths.


Shameless plug. 
https://www.usnews.com/opinion/debate-club/articles/2017-02-10/congress-should-think-hard-before-repealing-the-johnson-amendment


Alan Brownstein





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Sent: Thursday, May 4, 2017 9:05:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Johnson Amendment E.O.


Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for politi

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

That’s right. But an EO generates a bigger press release. Most of his EOs have 
just been instructions to others to think about something.

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 Saperstein, David
Sent: Thursday, May 4, 2017 2:54 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

But he didn't need an EO to instruct his Secretaries.

Sent from my iPhone

On May 4, 2017, at 2:50 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Agreed. There is nothing of substance here. Maybe more from the agencies down 
the road.

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 Marty Lederman
Sent: Thursday, May 4, 2017 1:55 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Johnson Amendment E.O.

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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___
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To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Johnson Amendment E.O.

[Alan E Brownstein]

I understand the concern that content-based constraints prohibiting the 
endorsement of candidates during sermons by clergy during worship services 
interfere with religious liberty. But it is also the case that such speech is a 
distinctive religious voice on electoral choices by the polity. The Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- even 
if the speech is expressed in an activity that is essentially a worship 
service. (Good News Club etc.)


The prohibition against viewpoint discrimination has to be applied in an 
even-handed way. If discrimination against religious speech is unconstitutional 
viewpoint discrimination, discrimination in favor of religious speech has to be 
unconstitutional viewpoint discrimination as well.


Religion cannot be some kind of constitutional chameleon that is a viewpoint of 
speech when it is disfavored by discriminatory speech restrictions but is not a 
viewpoint of speech when it is favored by discriminatory speech regulations. 
Thus, any order that required the IRS to enforce speech regulations less 
rigorously for religious speakers and institutions than secular speakers and 
institutions should constitute viewpoint discrimination on its face and be 
subject to strict scrutiny review. (And then, of course, there are 
establishment clause concerns.)


As to the policy issues raised by legislation to limit the Johnson Amendment, 
Rabbi Saperstein's arguments are persuasive, but probably understate the 
consequences of a formal change in this tax provision. Sermons are broadcast 
today. Religious groups engage in door to door proselytizing. Many houses of 
worship have large signs communicating religious messages to the community. 
Religious institutions communicate through social media to their congregants 
and to the general public. All of this is done in the ordinary course of their 
activities. All of these actions could be employed to support candidates during 
an election.


Further, there is a reason so many clergy oppose tampering with the Amendment. 
They do not want their houses of worship and institutions transformed and 
divided by partisan politics. And they know that once some congregations in 
their communities start to endorse candidates, it will be difficult for others 
to remain silent and cede the public election square exclusively to other 
faiths.


Shameless plug. 
https://www.usnews.com/opinion/debate-club/articles/2017-02-10/congress-should-think-hard-before-repealing-the-johnson-amendment


Alan Brownstein





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Sent: Thursday, May 4, 2017 9:05:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Johnson Amendment E.O.


Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.


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 Marty Lederman
Sent: Thursday, May 4, 2017 11:54 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Just came across this from David Saperstein’s 
testimony<https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf>
 today.  He makes the point much better than I did--I would only add that 
virtually all of his hypos could be extended beyond the church, to countless 
activities of all 501(c)(3) organizations:
Let me offer some hypotheticals of the implications of a proposal that says any 
statement is allowed that does not involve extra e

Re: Johnson Amendment E.O.

[Saperstein, David]

But he didn't need an EO to instruct his Secretaries.

Sent from my iPhone

On May 4, 2017, at 2:50 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Agreed. There is nothing of substance here. Maybe more from the agencies down 
the road.

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 Marty Lederman
Sent: Thursday, May 4, 2017 1:55 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Johnson Amendment E.O.

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Agreed. There is nothing of substance here. Maybe more from the agencies down 
the road.

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 Marty Lederman
Sent: Thursday, May 4, 2017 1:55 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Johnson Amendment E.O.

[Marty Lederman]

Never mind!:

https://takecareblog.com/blog/this-executive-order-on-religion-is-thankfully-a-dud

On Thu, May 4, 2017 at 11:53 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Just came across this from David Saperstein’s testimony
> 
> today.  He makes the point much better than I did--I would only add that
> virtually all of his hypos could be extended beyond the church, to
> countless activities of *all *501(c)(3) organizations:
>
> Let me offer some hypotheticals of the implications of a proposal that
> says any statement is allowed that does not involve extra expenses:
>
> Suppose instead of one sermon, in every scheduled sermon for the half-year
> running up to the election, the pastor(s) endorses various candidates and
> reiterates those endorsements?
>
> Suppose in every regular bulletin and regular email over those six months,
> the pastor or church leaders focus on endorsements of a party or a
> candidate(s)?
>
> Suppose with the costs of local calls being de minimis these days, they
> allow their phones to be used for campaign phone banks?
>
> Suppose a church has their congregants fill out cards for the offerings
> for later tax verification (putting their money and card in an envelope
> which they hand in) — and the church then adds envelopes and cards to fill
> out for contributions to the candidates they endorse and collect those with
> the offerings and someone from the campaign comes by every week and
> collects them.
>
> Or suppose the President of Notre Dame or Catholic University adds a
> single sentence to their regular email to their scores of thousands of
> alumni : “I believe based on sound religious reasoning you should all vote
> for Candidate A and oppose Candidate B.”
>
> Certainly de minimis but is that how tax deductible money should be used?
> In each of these there is no extra funding bulletins or emails, collecting
> offerings) what they would normally do.
>
> Are proponents of this legislation arguing that although you might
> disapprove on other grounds, that as far as the law is concerned, this
> ought to be allowed because it really doesn’t constitute using tax exempt
> and tax deductible funding for partisan political purposes? What is the
> cumulative value of the salaries and the overhead of the congregation in
> making this electioneering possible? If the church is funded by tax
> deductible contributions, are not these contributions subsidizing this
> electoral activity? If the church has the benefit of tax exemption to
> support its eleomosynary work, does not the tax exemption support
> everything the church does including its endorsement activities? Everything
> about the church is subsidized by tax exempt and tax deductible money. And
> that is as true of one sermon as six months of sermons; of one bulletin as
> six months of bulletins.
>
>
>
> On Thu, May 4, 2017 at 11:29 AM, Marty Lederman  georgetown.edu> wrote:
>
>> I'm afraid I don't quite understand Doug's other point, which appears to
>> be that the no-political-activity condition should not be construed to
>> extend to sermons (or Congress should amend the law to exclude sermons)
>> because churches don't spend money on sermons.  But of course churches
>> spend money on sermons--indeed, that is among the functions *for which* *they
>> are afforded tax benefits*.  The government subsidizes the "religious"
>> activities of churches, for the reasons described in *Walz *(i.e.,
>> they're presumptively analogous to the also-benefited charitable,
>> educational, etc., activities of other organizations within the class).
>> Paying for clergy is certainly within that category of activities that are
>> afforded the tax benefits.  But Congress has decided that although it's
>> perfectly happy to pay for other sermons by clergy--just as it pays for
>> plenty of speech by other nonprofits--it doesn't want to subsidize
>> specifically partisan endorsements, by churches or any other (c)(3)s.
>>
>> On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> Unless there has been some recent change in IRS policy that I don’t know
>>> about and that Marty does not suggest, the Amendment is not limited to
>>> “express” endorsements. The IRS jawboning, which is its only enforcement
>>> effort, describes many things that it views as implicit endorsements, such
>>> as voter guides that focus on issues of concern to the church, or
>>> comparisons of candidate positions to church positions. These are
>>> summarized in the CRS report he links to.
>>>
>>>
>>>
>>> There is an ambiguity at the end of the paragraph that begins “notably.”
>>> Contributions to the 501(c)(4) would not be tax deductible. Creating the
>>> 501(c)(4) would not change the status of the original 501(c)(3).
>>>
>>>
>>>
>>> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment 

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Those are troubling hypotheticals. I don't think they are as troubling as 
telling a minister, priest, or rabbi what he can preach about.



If it's just a front that does nothing but politics, it is not covered by the 
bills to exempt endorsements in the ordinary course of the organization’s 
activities and with no more than a de minimis marginal cost. There has to be 
some other ordinary activity that the political speech is in the course of. The 
phone bank is not in the ordinary course of the church’s activities. And that 
requirement could be strengthened, although enforcement might be difficult.



The bona fide religious, educational, or charitable purpose puts some 
constraints on hijacking it just for political purposes; many of the folks 
involved for the original purpose get resentful and leave. I assume that's why 
churches don't do all the things they could do now. They don't create church 
PACs, although they could, and I don't hear stories of them doing the sorts of 
things David imagines, although enforcement is lax.



Which is not to say that there wouldn’t be occasional abuses; some are probably 
inevitable.


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 Marty Lederman
Sent: Thursday, May 4, 2017 11:54 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Just came across this from David Saperstein’s 
testimony<https://oversight.house.gov/wp-content/uploads/2017/05/Saperstein_Testimony_05042017.pdf>
 today.  He makes the point much better than I did--I would only add that 
virtually all of his hypos could be extended beyond the church, to countless 
activities of all 501(c)(3) organizations:
Let me offer some hypotheticals of the implications of a proposal that says any 
statement is allowed that does not involve extra expenses:

Suppose instead of one sermon, in every scheduled sermon for the half-year 
running up to the election, the pastor(s) endorses various candidates and 
reiterates those endorsements?

Suppose in every regular bulletin and regular email over those six months, the 
pastor or church leaders focus on endorsements of a party or a candidate(s)?

Suppose with the costs of local calls being de minimis these days, they allow 
their phones to be used for campaign phone banks?

Suppose a church has their congregants fill out cards for the offerings for 
later tax verification (putting their money and card in an envelope which they 
hand in) — and the church then adds envelopes and cards to fill out for 
contributions to the candidates they endorse and collect those with the 
offerings and someone from the campaign comes by every week and collects them.

Or suppose the President of Notre Dame or Catholic University adds a single 
sentence to their regular email to their scores of thousands of alumni : “I 
believe based on sound religious reasoning you should all vote for Candidate A 
and oppose Candidate B.”

Certainly de minimis but is that how tax deductible money should be used? In 
each of these there is no extra funding bulletins or emails, collecting 
offerings) what they would normally do.

Are proponents of this legislation arguing that although you might disapprove 
on other grounds, that as far as the law is concerned, this ought to be allowed 
because it really doesn’t constitute using tax exempt and tax deductible 
funding for partisan political purposes? What is the cumulative value of the 
salaries and the overhead of the congregation in making this electioneering 
possible? If the church is funded by tax deductible contributions, are not 
these contributions subsidizing this electoral activity? If the church has the 
benefit of tax exemption to support its eleomosynary work, does not the tax 
exemption support everything the church does including its endorsement 
activities? Everything about the church is subsidized by tax exempt and tax 
deductible money. And that is as true of one sermon as six months of sermons; 
of one bulletin as six months of bulletins.


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Re: Johnson Amendment E.O.

[Marty Lederman]

Just came across this from David Saperstein’s testimony

today.  He makes the point much better than I did--I would only add that
virtually all of his hypos could be extended beyond the church, to
countless activities of *all *501(c)(3) organizations:

Let me offer some hypotheticals of the implications of a proposal that says
any statement is allowed that does not involve extra expenses:

Suppose instead of one sermon, in every scheduled sermon for the half-year
running up to the election, the pastor(s) endorses various candidates and
reiterates those endorsements?

Suppose in every regular bulletin and regular email over those six months,
the pastor or church leaders focus on endorsements of a party or a
candidate(s)?

Suppose with the costs of local calls being de minimis these days, they
allow their phones to be used for campaign phone banks?

Suppose a church has their congregants fill out cards for the offerings for
later tax verification (putting their money and card in an envelope which
they hand in) — and the church then adds envelopes and cards to fill out
for contributions to the candidates they endorse and collect those with the
offerings and someone from the campaign comes by every week and collects
them.

Or suppose the President of Notre Dame or Catholic University adds a single
sentence to their regular email to their scores of thousands of alumni : “I
believe based on sound religious reasoning you should all vote for
Candidate A and oppose Candidate B.”

Certainly de minimis but is that how tax deductible money should be used?
In each of these there is no extra funding bulletins or emails, collecting
offerings) what they would normally do.

Are proponents of this legislation arguing that although you might
disapprove on other grounds, that as far as the law is concerned, this
ought to be allowed because it really doesn’t constitute using tax exempt
and tax deductible funding for partisan political purposes? What is the
cumulative value of the salaries and the overhead of the congregation in
making this electioneering possible? If the church is funded by tax
deductible contributions, are not these contributions subsidizing this
electoral activity? If the church has the benefit of tax exemption to
support its eleomosynary work, does not the tax exemption support
everything the church does including its endorsement activities? Everything
about the church is subsidized by tax exempt and tax deductible money. And
that is as true of one sermon as six months of sermons; of one bulletin as
six months of bulletins.



On Thu, May 4, 2017 at 11:29 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I'm afraid I don't quite understand Doug's other point, which appears to
> be that the no-political-activity condition should not be construed to
> extend to sermons (or Congress should amend the law to exclude sermons)
> because churches don't spend money on sermons.  But of course churches
> spend money on sermons--indeed, that is among the functions *for which* *they
> are afforded tax benefits*.  The government subsidizes the "religious"
> activities of churches, for the reasons described in *Walz *(i.e.,
> they're presumptively analogous to the also-benefited charitable,
> educational, etc., activities of other organizations within the class).
> Paying for clergy is certainly within that category of activities that are
> afforded the tax benefits.  But Congress has decided that although it's
> perfectly happy to pay for other sermons by clergy--just as it pays for
> plenty of speech by other nonprofits--it doesn't want to subsidize
> specifically partisan endorsements, by churches or any other (c)(3)s.
>
> On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> Unless there has been some recent change in IRS policy that I don’t know
>> about and that Marty does not suggest, the Amendment is not limited to
>> “express” endorsements. The IRS jawboning, which is its only enforcement
>> effort, describes many things that it views as implicit endorsements, such
>> as voter guides that focus on issues of concern to the church, or
>> comparisons of candidate positions to church positions. These are
>> summarized in the CRS report he links to.
>>
>>
>>
>> There is an ambiguity at the end of the paragraph that begins “notably.”
>> Contributions to the 501(c)(4) would not be tax deductible. Creating the
>> 501(c)(4) would not change the status of the original 501(c)(3).
>>
>>
>>
>> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
>> applied to political expenditures. The hard issue of cost-free endorsements
>> in sermons was not presented.
>>
>>
>>
>> Is there any reason to think that the IRS is pursuing cost-free
>> endorsements by secular non-profits? If not, there is no discrimination to
>> trigger Marty’s Establishment Clause argument about 

RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

I am not aware of anything like the ADF’s attempt to provoke a test case going 
on in the secular sector. But policy oriented 501(c)(3)s, which can engage in 
public education on their issue, probably violate the rules against implicit 
endorsements with some frequency. And they probably spend money on mass 
communications when they do it.

Maybe they avoid trouble by talking about parties or movements (the religious 
right) instead of candidates by name. But it’s hard to imagine that none of 
them made fundraising appeals based on the threat to the country posed by 
Donald Trump or Hillary Clinton.

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 Marty Lederman
Sent: Thursday, May 4, 2017 11:19 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Doug asks:  "Is there any reason to think that the IRS is pursuing cost-free 
endorsements by secular non-profits? If not, there is no discrimination to 
trigger Marty’s Establishment Clause argument about current enforcement policy. 
I have never seen any account of such a case against a secular non-profit."

I agree -- if the IRS were to look the other way whenever (c)(3)'s of all 
stripes endorse candidates, then that wouldn't violate the First Amendment.  
But is there any reason to think that other (c)(3)'s, i.e., other than 
churches, engage in such widespread, conspicuous violations of the law, let 
alone that the IRS turns a blind eye to them?  Not a rhetorical question:  I'm 
genuinely unaware of any such phenomenon, and would be grateful for any further 
information.

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Unless there has been some recent change in IRS policy that I don’t know about 
and that Marty does not suggest, the Amendment is not limited to “express” 
endorsements. The IRS jawboning, which is its only enforcement effort, 
describes many things that it views as implicit endorsements, such as voter 
guides that focus on issues of concern to the church, or comparisons of 
candidate positions to church positions. These are summarized in the CRS report 
he links to.

There is an ambiguity at the end of the paragraph that begins “notably.” 
Contributions to the 501(c)(4) would not be tax deductible. Creating the 
501(c)(4) would not change the status of the original 501(c)(3).

The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to 
political expenditures. The hard issue of cost-free endorsements in sermons was 
not presented.

Is there any reason to think that the IRS is pursuing cost-free endorsements by 
secular non-profits? If not, there is no discrimination to trigger Marty’s 
Establishment Clause argument about current enforcement policy. I have never 
seen any account of such a case against a secular non-profit.

The real problem with what Marty anticipates from the EO is this: Since the IRS 
already has an implicit policy of non-enforcement with respect to cost-free 
endorsements, the only possible effect of the EO is to direct non-enforcement 
with respect to political expenditures of money. And that would open up an 
enormous loophole in campaign finance regulation and in the rule that political 
expenditures are not tax deductible.

A House Subcommittee is holding hearings this morning on the bills to repeal or 
amend the Johnson Amendment.

Shameless plug: I wrote about the Johnson Amendment here: 
https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

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 Marty Lederman
Sent: Thursday, May 4, 2017 8:56 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937<tel:(202)%20662-9937>


___
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Please note that messages sent to this large list can

Re: Johnson Amendment E.O.

[Marty Lederman]

I'm afraid I don't quite understand Doug's other point, which appears to be
that the no-political-activity condition should not be construed to extend
to sermons (or Congress should amend the law to exclude sermons) because
churches don't spend money on sermons.  But of course churches spend money
on sermons--indeed, that is among the functions *for which* *they are
afforded tax benefits*.  The government subsidizes the "religious"
activities of churches, for the reasons described in *Walz *(i.e., they're
presumptively analogous to the also-benefited charitable, educational,
etc., activities of other organizations within the class).  Paying for
clergy is certainly within that category of activities that are afforded
the tax benefits.  But Congress has decided that although it's perfectly
happy to pay for other sermons by clergy--just as it pays for plenty of
speech by other nonprofits--it doesn't want to subsidize specifically
partisan endorsements, by churches or any other (c)(3)s.

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unless there has been some recent change in IRS policy that I don’t know
> about and that Marty does not suggest, the Amendment is not limited to
> “express” endorsements. The IRS jawboning, which is its only enforcement
> effort, describes many things that it views as implicit endorsements, such
> as voter guides that focus on issues of concern to the church, or
> comparisons of candidate positions to church positions. These are
> summarized in the CRS report he links to.
>
>
>
> There is an ambiguity at the end of the paragraph that begins “notably.”
> Contributions to the 501(c)(4) would not be tax deductible. Creating the
> 501(c)(4) would not change the status of the original 501(c)(3).
>
>
>
> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
> applied to political expenditures. The hard issue of cost-free endorsements
> in sermons was not presented.
>
>
>
> Is there any reason to think that the IRS is pursuing cost-free
> endorsements by secular non-profits? If not, there is no discrimination to
> trigger Marty’s Establishment Clause argument about current enforcement
> policy. I have never seen any account of such a case against a secular
> non-profit.
>
>
>
> The real problem with what Marty anticipates from the EO is this: Since
> the IRS already has an implicit policy of non-enforcement with respect to
> cost-free endorsements, the only possible effect of the EO is to direct
> non-enforcement with respect to political expenditures of money. And that
> would open up an enormous loophole in campaign finance regulation and in
> the rule that political expenditures are not tax deductible.
>
>
>
> A House Subcommittee is holding hearings this morning on the bills to
> repeal or amend the Johnson Amendment.
>
>
>
> Shameless plug: I wrote about the Johnson Amendment here:
> https://www.christiancentury.org/article/dont-repeal-
> johnson-amendment-fix-it
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, May 4, 2017 8:56 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> 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.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
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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: Johnson Amendment E.O.

[Marty Lederman]

Doug asks:  "Is there any reason to think that the IRS is pursuing
cost-free endorsements by secular non-profits? If not, there is no
discrimination to trigger Marty’s Establishment Clause argument about
current enforcement policy. I have never seen any account of such a case
against a secular non-profit."

I agree -- if the IRS were to look the other way whenever (c)(3)'s of all
stripes endorse candidates, then that wouldn't violate the First
Amendment.  But is there any reason to think that other (c)(3)'s, i.e.,
other than churches, engage in such widespread, conspicuous violations of
the law, let alone that the IRS turns a blind eye to them?  Not a
rhetorical question:  I'm genuinely unaware of any such phenomenon, and
would be grateful for any further information.

On Thu, May 4, 2017 at 10:21 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unless there has been some recent change in IRS policy that I don’t know
> about and that Marty does not suggest, the Amendment is not limited to
> “express” endorsements. The IRS jawboning, which is its only enforcement
> effort, describes many things that it views as implicit endorsements, such
> as voter guides that focus on issues of concern to the church, or
> comparisons of candidate positions to church positions. These are
> summarized in the CRS report he links to.
>
>
>
> There is an ambiguity at the end of the paragraph that begins “notably.”
> Contributions to the 501(c)(4) would not be tax deductible. Creating the
> 501(c)(4) would not change the status of the original 501(c)(3).
>
>
>
> The DC Circuit in *Branch Ministries* upheld the Johnson Amendment as
> applied to political expenditures. The hard issue of cost-free endorsements
> in sermons was not presented.
>
>
>
> Is there any reason to think that the IRS is pursuing cost-free
> endorsements by secular non-profits? If not, there is no discrimination to
> trigger Marty’s Establishment Clause argument about current enforcement
> policy. I have never seen any account of such a case against a secular
> non-profit.
>
>
>
> The real problem with what Marty anticipates from the EO is this: Since
> the IRS already has an implicit policy of non-enforcement with respect to
> cost-free endorsements, the only possible effect of the EO is to direct
> non-enforcement with respect to political expenditures of money. And that
> would open up an enormous loophole in campaign finance regulation and in
> the rule that political expenditures are not tax deductible.
>
>
>
> A House Subcommittee is holding hearings this morning on the bills to
> repeal or amend the Johnson Amendment.
>
>
>
> Shameless plug: I wrote about the Johnson Amendment here:
> https://www.christiancentury.org/article/dont-repeal-
> johnson-amendment-fix-it
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, May 4, 2017 8:56 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> 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.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
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To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: Johnson Amendment E.O.

[Eric J Segall]

Depends entirely on whether Justice Alito gets his way.


e


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of David Cruz <dc...@law.usc.edu>
Sent: Thursday, May 4, 2017 11:12:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

(This) one would hope.


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Thursday, May 4, 2017 at 8:08 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Well, if Hobby Lobby's dictum that RFRA radically altered the pre-Smith law 
were correct, that'd be one thing.  But it's 
not<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Flinkprotect.cudasvc.com%2Furl%3Fa%3Dhttp%3A%2F%2Fwww.yalelawjournal.org%2Fpdf%2FLederman_PDF_pt9q3ynr.pdf%26c%3DE%2C1%2CiMd0PJIp536dQdUOyub6icCVtL1zxFP2DLkvQKF9fQyXhg-_0AOMU0BI5Df7ETM0SiuV-5gYFV_ktiI_0FKbkUnZpaY0BukzrlHsUJAkA-qZV82VdRgk%26typo%3D1=02%7C01%7Cesegall%40gsu.edu%7C1158f4ebdad44687ccbe08d492ffcd18%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636295074730358655=a8fVsphcKVt1tUBBfV1U2mb4U%2ByiEjILPBQw7gzgAwg%3D=0>.
  And therefore doesn't the unanimous "no burden" holding in Jimmy Swaggart, 
cited by the court in Rossetti, pretty much settle the question?

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Re: Johnson Amendment E.O.

[David Cruz]

(This) one would hope.


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Thursday, May 4, 2017 at 8:08 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

Well, if Hobby Lobby's dictum that RFRA radically altered the pre-Smith law 
were correct, that'd be one thing.  But it's 
not<https://linkprotect.cudasvc.com/url?a=http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf=E,1,iMd0PJIp536dQdUOyub6icCVtL1zxFP2DLkvQKF9fQyXhg-_0AOMU0BI5Df7ETM0SiuV-5gYFV_ktiI_0FKbkUnZpaY0BukzrlHsUJAkA-qZV82VdRgk=1>.
  And therefore doesn't the unanimous "no burden" holding in Jimmy Swaggart, 
cited by the court in Rossetti, pretty much settle the question?

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Re: Johnson Amendment E.O.

[Marty Lederman]

Well, if *Hobby Lobby*'s dictum that RFRA radically altered the pre-*Smith *law
were correct, that'd be one thing.  But it's not
<http://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf>.  And
therefore doesn't the *unanimous *"no burden" holding in *Jimmy Swaggart*,
cited by the court in *Rossetti*, pretty much settle the question?

On Thu, May 4, 2017 at 11:01 AM, David Cruz <dc...@law.usc.edu> wrote:

> I agree on avoidance and RFRA.  I’m just trying to work out for myself how
> to square *Branch Ministries* with the expansive analysis in *Hobby Lobby*.
> Maybe subsidy (vs. penalty?) does the trick; I’ll have to think more on
> this.
>
>
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 7:54 AM
> *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject: *Re: Johnson Amendment E.O.
>
>
>
> That, as the court of appeals explained, the only legal ramification of so
> speaking would be that the church would then be treated the same as
> everyone else who speaks likewise--i.e., it'd get major tax benefits, but
> contributions wouldn't be tax-deductible.  The fact that the state would
> not provide such a dramatic * subsidy *for such speech would not
> substantially burden that speech, any more than it would burden similarly
> motivated speech by an individual, for-profit corporation, or other kind of
> association.
>
>
>
> But even if you disagree, and would find a substantial burden, it would
> still be unconstitutional to give churches special political-speech
> rights--and avoiding that constitutional violation means the government
> ought to win under RFRA.
>
>
>
> On Thu, May 4, 2017 at 10:47 AM, David Cruz <dc...@law.usc.edu> wrote:
>
> In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal
> from electoral politics would violate its beliefs.” 211 F.3d at 142.  This
> fact played a role in the court’s “no substantial burden” reasoning.  If a
> Church did so  maintain today, Marty, what extra analysis would you endorse
> that leads to your conclusion that “the Johnson Amendment does not
> substantially burden the religious activity of a religious organization—and
> therefore does not raise any serious Free Exercise or RFRA questions—*even
> if the organization believes that partisan politicking is a significant
> component of its religious mission*” (emphasis added)?
>
>
>
> -David
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: *<religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 5:55 AM
> *To: *Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject: *Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
> <https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1>
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
>
> ___
> 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.
>
>
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%2

Re: Johnson Amendment E.O.

[David Cruz]

I agree on avoidance and RFRA.  I’m just trying to work out for myself how to 
square Branch Ministries with the expansive analysis in Hobby Lobby.  Maybe 
subsidy (vs. penalty?) does the trick; I’ll have to think more on this.


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Thursday, May 4, 2017 at 7:54 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Johnson Amendment E.O.

That, as the court of appeals explained, the only legal ramification of so 
speaking would be that the church would then be treated the same as everyone 
else who speaks likewise--i.e., it'd get major tax benefits, but contributions 
wouldn't be tax-deductible.  The fact that the state would not provide such a 
dramatic subsidy for such speech would not substantially burden that speech, 
any more than it would burden similarly motivated speech by an individual, 
for-profit corporation, or other kind of association.

But even if you disagree, and would find a substantial burden, it would still 
be unconstitutional to give churches special political-speech rights--and 
avoiding that constitutional violation means the government ought to win under 
RFRA.

On Thu, May 4, 2017 at 10:47 AM, David Cruz 
<dc...@law.usc.edu<mailto:dc...@law.usc.edu>> wrote:
In Branch Ministries, “the Church d[id] not maintain that a withdrawal from 
electoral politics would violate its beliefs.” 211 F.3d at 142.  This fact 
played a role in the court’s “no substantial burden” reasoning.  If a Church 
did so  maintain today, Marty, what extra analysis would you endorse that leads 
to your conclusion that “the Johnson Amendment does not substantially burden 
the religious activity of a religious organization—and therefore does not raise 
any serious Free Exercise or RFRA questions—even if the organization believes 
that partisan politicking is a significant component of its religious mission” 
(emphasis added)?

-David

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Thursday, May 4, 2017 at 5:55 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment<https://linkprotect.cudasvc.com/url?a=https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment=E,1,_-sdTULXZVit5esk1q9CjqIQ45Hv-72LSCkoXZJo7hv5uv1DHfbFMEm6GIi2LKzeCRtpTbEAgpKulNuz3qbbj-ZFFa7_lpo_LXO7k_TYT1o8J00,=1>

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937<tel:(202)%20662-9937>


___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

___
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Re: Johnson Amendment E.O.

[Marty Lederman]

That, as the court of appeals explained, the only legal ramification of so
speaking would be that the church would then be treated the same as
everyone else who speaks likewise--i.e., it'd get major tax benefits, but
contributions wouldn't be tax-deductible.  The fact that the state would
not provide such a dramatic *subsidy *for such speech would not
substantially burden that speech, any more than it would burden similarly
motivated speech by an individual, for-profit corporation, or other kind of
association.

But even if you disagree, and would find a substantial burden, it would
still be unconstitutional to give churches special political-speech
rights--and avoiding that constitutional violation means the government
ought to win under RFRA.

On Thu, May 4, 2017 at 10:47 AM, David Cruz  wrote:

> In *Branch Ministries*, “the Church d[id] not maintain that a withdrawal
> from electoral politics would violate its beliefs.” 211 F.3d at 142.  This
> fact played a role in the court’s “no substantial burden” reasoning.  If a
> Church did so  maintain today, Marty, what extra analysis would you endorse
> that leads to your conclusion that “the Johnson Amendment does not
> substantially burden the religious activity of a religious organization—and
> therefore does not raise any serious Free Exercise or RFRA questions—*even
> if the organization believes that partisan politicking is a significant
> component of its religious mission*” (emphasis added)?
>
>
>
> -David
>
>
>
> David B. Cruz
>
> Professor of Law
>
> University of Southern California Gould School of Law
>
> Los Angeles, CA 90089-0071
>
> U.S.A.
>
>
>
>
>
> *From: * on behalf of Marty Lederman <
> martin.leder...@law.georgetown.edu>
> *Reply-To: *Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> *Date: *Thursday, May 4, 2017 at 5:55 AM
> *To: *Law & Religion issues for Law Academics 
> *Subject: *Johnson Amendment E.O.
>
>
>
> FYI:
>
>
>
> https://takecareblog.com/blog/what-s-all-this-fuss-about-
> the-johnson-amendment
> 
>
>
>
> Please let me know if you notice any mistakes, thanks.
>
>
>
> --
>
> Marty Lederman
>
> Georgetown University Law Center
>
> 600 New Jersey Avenue, NW
>
> Washington, DC 20001
>
> 202-662-9937 <(202)%20662-9937>
>
>
>
> ___
> 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.
>



-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
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Re: Johnson Amendment E.O.

[David Cruz]

In Branch Ministries, “the Church d[id] not maintain that a withdrawal from 
electoral politics would violate its beliefs.” 211 F.3d at 142.  This fact 
played a role in the court’s “no substantial burden” reasoning.  If a Church 
did so  maintain today, Marty, what extra analysis would you endorse that leads 
to your conclusion that “the Johnson Amendment does not substantially burden 
the religious activity of a religious organization—and therefore does not raise 
any serious Free Exercise or RFRA questions—even if the organization believes 
that partisan politicking is a significant component of its religious mission” 
(emphasis added)?

-David

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From:  on behalf of Marty Lederman 

Reply-To: Law & Religion issues for Law Academics 
Date: Thursday, May 4, 2017 at 5:55 AM
To: Law & Religion issues for Law Academics 
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

___
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RE: Johnson Amendment E.O.

[Laycock, H Douglas (hdl5c)]

Unless there has been some recent change in IRS policy that I don’t know about 
and that Marty does not suggest, the Amendment is not limited to “express” 
endorsements. The IRS jawboning, which is its only enforcement effort, 
describes many things that it views as implicit endorsements, such as voter 
guides that focus on issues of concern to the church, or comparisons of 
candidate positions to church positions. These are summarized in the CRS report 
he links to.

There is an ambiguity at the end of the paragraph that begins “notably.” 
Contributions to the 501(c)(4) would not be tax deductible. Creating the 
501(c)(4) would not change the status of the original 501(c)(3).

The DC Circuit in Branch Ministries upheld the Johnson Amendment as applied to 
political expenditures. The hard issue of cost-free endorsements in sermons was 
not presented.

Is there any reason to think that the IRS is pursuing cost-free endorsements by 
secular non-profits? If not, there is no discrimination to trigger Marty’s 
Establishment Clause argument about current enforcement policy. I have never 
seen any account of such a case against a secular non-profit.

The real problem with what Marty anticipates from the EO is this: Since the IRS 
already has an implicit policy of non-enforcement with respect to cost-free 
endorsements, the only possible effect of the EO is to direct non-enforcement 
with respect to political expenditures of money. And that would open up an 
enormous loophole in campaign finance regulation and in the rule that political 
expenditures are not tax deductible.

A House Subcommittee is holding hearings this morning on the bills to repeal or 
amend the Johnson Amendment.

Shameless plug: I wrote about the Johnson Amendment here: 
https://www.christiancentury.org/article/dont-repeal-johnson-amendment-fix-it

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 Marty Lederman
Sent: Thursday, May 4, 2017 8:56 AM
To: Law & Religion issues for Law Academics 
Subject: Johnson Amendment E.O.

FYI:

https://takecareblog.com/blog/what-s-all-this-fuss-about-the-johnson-amendment

Please let me know if you notice any mistakes, thanks.

--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

___
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Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo)

[Eric Rassbach]

Maybe Doug is just very convincing?



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Ira Lupu <icl...@law.gwu.edu>
Sent: Friday, April 28, 2017 9:21 AM
To: Law & Religion issues for Law Academics; rtut...@law.gwu.edu
Subject: Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper 
hypo)

Marty's excellent and probing questions deserve a reply, and at length.  Bob 
Tuttle is not on this list, but he and Marty live within 15 minutes of each 
other and me, and the three of us will have that conversation sometime soon, 
face to face. I will add only that Bob and I discuss Chris Lund's very good 
article in our "mystery of unanimity" piece. And I will assert that no one else 
has even tried to explain the Court's very surprising unanimity in 
Hosanna-Tabor.
On Fri, Apr 28, 2017 at 7:18 AM Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> 
wrote:
I agree entirely with Chip that the Court in H-T eschewed Sherbert/Yoder-type 
balancing.  The important questions going forward, however, are (i) why it did 
so -- i.e., what the justification is for the church's absolute immunity w/r/t 
"ministers" and antidiscrimination laws; and (ii) whether that rationale is 
likewise implicated as to other sorts of laws, and persons other than ministers.

The greatest virtue (among many) of Chip and Bob's article, I think, is that 
they tie the decision in H-T to the line(s) of cases in which the Court has 
held that the state cannot evaluate --is not capable of evaluating -- certain 
kinds of religious questions, which we can denominate "exclusively 
ecclesiastical questions."

For example:  The state may not -- cannot -- assess whether and to what extent 
Person X adequately or effectively conveys the faith (e.g., the word of God) to 
parishioners (or to students), or whether, e.g., Cheryl Perich has or has not 
violated Lutheran tenets.  Chip and Bob's shorthand for such things, as I 
understand it, is that the state cannot assess an individual's "fitness" for 
the ministry (from the perspective of the church).

I agree with this.  Likewise, I agree that the state could not assess the 
impact upon congregational prayer of the presence of nursing women.  That is to 
say, the state must accept as true the church's conclusion (i) that Cheryl 
Perich violated Lutheran precepts (indeed, that fact was undisputed -- by 
filing an EEOC claim, she did, indeed, breach a church rule, based in 
scripture, that such disputes be settled without resort to civil authorities); 
(ii) that Perich's violation (and/or her other conduct) made her incapable of 
adequately conveying the faith to students, and generally "unfit" for such a 
role; and (iii) that the religious functions/effectiveness of prayer are 
undermined by the presence of nursing women.

The state should (or must) also accept the church's judgment that the functions 
in question (e.g., inculcating the faith to students in H-T; congregational 
prayer in Steve's hypo) are of supreme importance to the church's religious 
mission.

But those things only go so far to resolving how the cases should come out.  We 
could--and must--defer to the Church on all of the relevant religious question, 
and thus must accept the proposition that retaining Perich as a called teacher 
would undermine its ability to inculcate the faith, or that the presence of 
nursing women will, for whatever reason, make communal prayer less effective.  
And I'll accept for present purposes the related notion that we must, too, 
accept the church's conclusions that these are very damaging harms to its 
religious mission--harms that the state has no business second-guessing.

OK, but now we must still decide whether the ADA's prohibition on retaliation 
can and should apply notwithstanding this (conceded) harm to the church.  And 
however one thinks we ought to resolve that question, the important point I'm 
trying to stress here is that that assessment does not require the state to 
answer any "exclusively ecclesiastical questions."  Such constituent 
ecclesiastical questions are all already answered, in the church's favor (which 
is different from the case of another, nonreligious employer, where the court 
could critically assess whether the law would actually have the impact on 
productivity, etc., that the employer claims).  We still need to decide, 
however, whether the civil law should trump the harms to the church--harms that 
we must accept as a given--particularly if the requested remedy does not 
include retention as a minister (e.g., if Perich were asking only for back pay, 
or for retention as a lay (not called) teacher).

This might be made clearer by looking at two related hypos, both of which the 
Court in effect reserved in H-T (i.e., that the Court conceded are not 
necessa

Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo)

[Steven Jamar]

Hosanna-Tabor is an easy case once you decide that the person is within the 
category of minister and the unanimity is not surprising on those facts. 
Contrary to the assertions of some, liberals do not respond in knee-jerk 
pavlovian fashion in favor of government regulation of any and all sorts nor do 
they always favor equality-based approaches over liberty-based ones. 

Hosanna-Tabor is only about the ministerial exception. It is not about 
determining who is a proper congregant and thus does not by its holding control 
the nursing worshipper issue. Of course as everyone agrees, the underlying idea 
of church autonomy in religious decisions would apply not just to ministerial 
control but also to control of members. But that is an extension, not a holding.

Oh, and by the way, the nursing worshipper is a real thing, not a hypo. And the 
Virginia law does in fact protect a woman’s right to nurse without covering her 
breast, no matter how absurd some may think such a law is. The only limitation 
is whether the woman has a right to be in that place or not. If the woman is 
determined by the church not to have a right to be in the sanctuary, then the 
law does not apply. 

I find it interesting that no one can imagine that this action to exclude a 
woman was not done by the church authority but rather by a self-interested 
congregant and that it might even be against church policy and that there might 
in fact be a gender discrimination claim here under certain circumstances 
regarding church doctrine and practice.  Or are we so suddenly separationist 
here but accommodationist in funding that there can never be a discrimination 
claim any time a church says religious doctrine and congregant definition?

The Court in H-T did not go that far and that is probably why it was unanimous.

Steve


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"It is by education I learn to do by choice, what other men do by the 
constraint of fear."

Aristotle




> On Apr 28, 2017, at 9:21 AM, Ira Lupu  wrote:
> 
> Marty's excellent and probing questions deserve a reply, and at length.  Bob 
> Tuttle is not on this list, but he and Marty live within 15 minutes of each 
> other and me, and the three of us will have that conversation sometime soon, 
> face to face. I will add only that Bob and I discuss Chris Lund's very good 
> article in our "mystery of unanimity" piece. And I will assert that no one 
> else has even tried to explain the Court's very surprising unanimity in 
> Hosanna-Tabor.
> On Fri, Apr 28, 2017 at 7:18 AM Marty Lederman 
>  > wrote:
> 

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo)

[Ira Lupu]

Marty's excellent and probing questions deserve a reply, and at length.
Bob Tuttle is not on this list, but he and Marty live within 15 minutes of
each other and me, and the three of us will have that conversation sometime
soon, face to face. I will add only that Bob and I discuss Chris Lund's
very good article in our "mystery of unanimity" piece. And I will assert
that no one else has even tried to explain the Court's very surprising
unanimity in Hosanna-Tabor.
On Fri, Apr 28, 2017 at 7:18 AM Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I agree entirely with Chip that the Court in H-T eschewed
> Sherbert/Yoder-type balancing.  The important questions going forward,
> however, are (i) *why *it did so -- i.e., what the justification is for
> the church's absolute immunity w/r/t "ministers" and antidiscrimination
> laws; and (ii) whether that rationale is likewise implicated as to other
> sorts of laws, and persons other than ministers.
>
> The greatest virtue (among many) of Chip and Bob's article, I think, is
> that they tie the decision in H-T to the line(s) of cases in which the
> Court has held that the state cannot evaluate --is *not capable of
> evaluating *-- certain kinds of religious questions, which we can
> denominate "exclusively ecclesiastical questions."
>
> For example:  The state may not -- cannot -- assess whether and to what
> extent Person X adequately or effectively conveys the faith (e.g., the word
> of God) to parishioners (or to students), or whether, e.g., Cheryl Perich
> has or has not violated Lutheran tenets.  Chip and Bob's shorthand for such
> things, as I understand it, is that the state cannot assess an individual's
> "fitness" for the ministry (from the perspective of the church).
>
> I agree with this.  Likewise, I agree that the state could not assess the
> impact *upon congregational prayer *of the presence of nursing women.
> That is to say, the state *must accept as true* the church's conclusion
> (i) that Cheryl Perich violated Lutheran precepts (indeed, that fact was
> undisputed -- by filing an EEOC claim, she did, indeed, breach a church
> rule, based in scripture, that such disputes be settled without resort to
> civil authorities); (ii) that Perich's violation (and/or her other conduct)
> made her incapable of adequately conveying the faith to students, and
> generally "unfit" for such a role; and (iii) that the religious
> functions/effectiveness of prayer are undermined by the presence of nursing
> women.
>
> The state should (or must) also accept the church's judgment that the
> functions in question (e.g., inculcating the faith to students in H-T;
> congregational prayer in Steve's hypo) are of supreme *importance *to the
> church's religious mission.
>
> But those things only go so far to resolving how the cases should come
> out.  We could--and must--defer to the Church on all of the relevant
> religious question, and thus must *accept *the proposition that retaining
> Perich as a called teacher would undermine its ability to inculcate the
> faith, or that the presence of nursing women will, for whatever reason,
> make communal prayer less effective.  And I'll accept for present purposes
> the related notion that we must, too, accept the church's conclusions that
> these are very damaging harms to its religious mission--harms that the
> state has no business second-guessing.
>
> OK, but now we must still decide whether the ADA's prohibition on
> retaliation can and should apply *notwithstanding *this (conceded) harm
> to the church.  And however one thinks we ought to resolve that question,
> the important point I'm trying to stress here is that *that *assessment
> does *not *require the state to answer any "exclusively ecclesiastical
> questions."  Such constituent ecclesiastical questions are all already
> answered, *in the church's favor* (which is different from the case of
> another, nonreligious employer, where the court could critically assess
> whether the law would actually have the impact on productivity, etc., that
> the employer claims).  We still need to decide, however, whether the civil
> law should trump the harms to the church--harms that we must accept as a
> given--particularly if the requested remedy does *not *include retention
> as a minister (e.g., if Perich were asking only for back pay, or for
> retention as a lay (not called) teacher).
>
> This might be made clearer by looking at two related hypos, both of which
> the Court in effect *reserved *in H-T (i.e., that the Court conceded are
> not necessarily governed by the decision in H-T):
>
> 1.  A common-law contract claim in Perich's case, in which the contract
> includes a promise by the church that the minister retains all statutory
> rights to file EEOC claims.
>
> 2.  A Fair Labor Standards statute that prohibits persons under 18 from
> working more than 20 hours a week, as applied to a church that claims that
> a 15-year-old is most fit to be its minister, and 

RE: Church excludes nursing woman

[Christopher Lund]

Just a few short replies, and then I'll leave everyone alone:


1.   You're right.  The Court doesn't resolve the child-labor issue.  It 
just said the issue was different.  For myself, I have trouble believing the 
Court is going to let a 13-year-old kid work 40 hours a week for a church, even 
if the church sincerely believes him to be a minister.  But you're right that 
it didn't resolve the issue.



2.   No disagreement here.  I agree that the government could not prohibit 
the ordination of a child minister.  And I agree that the government could 
limit the hours that the child works.  It could limit them, presumably, to 
zero.  That is, the government could prohibit the child minister from working 
any hours at all.  The ordination would have to be in name and in principle 
only.  Again, we're returning to the conclusion that churches have no immunity 
from child-labor laws.



3.   I don't know if "religious affairs" is broader or vaguer than 
"exclusively ecclesiastical questions."  I guess it depends on how those 
concepts get fleshed out.  You say you mean "exclusively ecclesiastical 
questions" to refer to  "questions which the state lacks substantive 
jurisdiction to decide."  I don't quite get that.  It seems circular to me.  
And I don't quite get how ecclesiastical questions cease being ecclesiastical 
questions when religious groups are funded by the state.  If the idea is that 
it is no longer an *exclusively* ecclesiastical question, then that raises a 
bunch of issues-the kind of ones that Marty was asking earlier.  I don't see, 
for example, why Cheryl Perich's firing was *exclusively* ecclesiastical in the 
first place.  She didn't just lose her religious call; she lost her secular 
salary.  Justice Ginsburg pointed out at oral argument that the church hired 
uncalled teachers-which meant the church could rescind Perich's call (the 
exclusively ecclesiastical part) without taking away her job.  Obviously the 
Court didn't go that road.  But whatever-this is all within the realm of 
reasonable debate.  Everyone's theory has issues.  Certainly mine does.

... and that brings me to my shameless plug.  I offer a slightly different take 
from Chip in this piece, Free Exercise Reconceived: The Logic and Limits of 
Hosanna-Tabor, available here, 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1002=nulr.
  It spends a lot of time trying to unpack the boundaries of the decision, 
relying pretty heavily on the decisions of lower courts both before and after 
Hosanna-Tabor.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website-http://law.wayne.edu/profile/christopher.lund/
Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 10:54 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Church excludes nursing woman

A few replies to Chris:

1.  The Court never says in Hosanna-Tabor that "churches have no immunity from 
child-labor laws."   Please read that section of the opinion again (page 21 of 
the pdf version). It explicitly concludes: "The case before us is an employment 
discrimination suit brought on behalf of a minister, challenging her church's 
decision to fire her. Today we hold only that the ministerial exception bars 
such a suit. We express no view on whether the exception bars other types of 
suits, including actions by employees alleging breach of contract or tortious 
conduct by their religious employers. There will be time enough to address the 
applicability of the exception to other circumstances if and when they arise." 
Chris, you are making up some notion of interest balancing in this enterprise 
that is just not there.

2. I do not think the government could prohibit the ordination of a child 
minister.  I do think it could limit the hours that the child works.

3.  "Religious affairs" seems like a much broader (or vaguer) concept than 
"exclusively ecclesiastical questions."  The latter encompasses those questions 
which the state lacks substantive jurisdiction to decide.  (This is a crucial 
piece of what church-state separation means -- power to decide certain 
questions).  Whether a religious community may proselytize in its government 
funded social service efforts is not an exclusively ecclesiastical question.  
The government has a legitimate interest in who has access to services it 
funds.  If the social service were exclusively church funded and was part of 
what it sees as its ministry, the content of the service would present an 
exclusively ecclesiastical question.

On Thu, Apr 27, 2017 at 1

Re: Church excludes nursing woman

[Michael Moreland]

Setting aside the discussion of Hosanna-Tabor and RFRA for a moment, the 
initial question was about where a person “has a right to be.” As it happens, 
Virginia has a church trespass statute (Va. Code. § 18.2-128), which provides, 
"It shall be unlawful for any person, whether or not a church member or 
student, to enter upon or remain upon any church or school property in 
violation of (i) any direction to vacate the property by a person authorized to 
give such direction….” Imprudent as the church’s decision might be here, 
doesn’t the statutory right of the church to exclude for trespass (without all 
the difficulties of “excommunication” and so on) give a straightforward answer 
to the problem?

--
Michael P. Moreland
Visiting Professor of Law
and Mary Ann Remick Senior Visiting Fellow
University of Notre Dame
3101 Eck Hall of Law
Notre Dame, Indiana 46556
Tel: 574-631-2306
Email: moreland...@nd.edu<mailto:moreland...@nd.edu>

From: 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Thursday, April 27, 2017 at 10:44 PM
To: Law Religion & Law List 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Church excludes nursing woman

Anyway, to return to my original question, how would this work out under RFRA, 
it seems that there is no substantial burden on religious exercise unless the 
church in question considers uncovered breast feeding immodest under its 
religious teachings. Then, is uncovered breast feeding a compelling state 
interest? I don’t think so. If it is, there seems to be no less instrusive 
alternative than to say “allow it.”
Under Smith, this would be a neutral, generally applicable law that applies to 
religious conduct — here allowing uncovered breast feeding during a service in 
the sanctuary — where the person has a right to be unless the church 
excommunicates (or whatever term they use to define members) the person.
Which then brings us to Hosanna-Tabor. I agree that some aspects of religious 
practice, e.g., selecting ministers and even choosing who is a “minister” is 
insulated from governmental regulation. And I agree that a religion can choose 
who will be admitted as congregants and can impose any rules of modesty and 
decorum it likes. But can a religion be required to show that it has a rule of 
modesty that was violated? Or can it exclude anyone for an ad hoc, unknown 
rule? Does it matter whether it was an officious meddling congregant as opposed 
to a church official who did the meddling? Or is the exclusion utterly 
unreviewable.
The ecclesiastical immunity of Hossana-Tabor has limits — child abuse, 
pedophilia, murder, slavery, and so on — but just where is that edge? Surely we 
can stop trial of faith by serpent’s bite. But what short of that?

Steve


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fiipsj.org=02%7C01%7Cmoreland%40law.villanova.edu%7Ca3332bbf569a4a35bcbb08d48de09b1f%7C765a8de5cf9444f09cafae5bf8cfa366%7C0%7C0%7C636289443198238321=fdZN5oqfXicyj2pXK20hW%2FCoR7F2VEvDsS3%2BZ2ncBrE%3D=0>
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost



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Re: Church excludes nursing woman

[Ira Lupu]

A few replies to Chris:

1.  The Court never says in Hosanna-Tabor that "churches have no immunity
from child-labor laws."   Please read that section of the opinion again
(page 21 of the pdf version). It explicitly concludes: "The case before us
is an employment discrimination suit brought on behalf of a minister,
challenging her church’s decision to fire her. Today we hold only that the
ministerial exception bars such a suit. We express no view on whether the
exception bars other types of suits, including actions by employees
alleging breach of contract or tortious conduct by their religious
employers. There will be time enough to address the applicability of the
exception to other circumstances if and when they arise." Chris, you are
making up some notion of interest balancing in this enterprise that is just
not there.

2. I do not think the government could prohibit the ordination of a child
minister.  I do think it could limit the hours that the child works.

3.  "Religious affairs" seems like a much broader (or vaguer) concept than
"exclusively ecclesiastical questions."  The latter encompasses those
questions which the state lacks substantive jurisdiction to decide.  (This
is a crucial piece of what church-state separation means -- power to decide
certain questions).  Whether a religious community may proselytize in
its *government
funded* social service efforts is not an exclusively ecclesiastical
question.  The government has a legitimate interest in who has access to
services it funds.  If the social service were exclusively church funded
and was part of what it sees as its ministry, the content of the service
would present an exclusively ecclesiastical question.

On Thu, Apr 27, 2017 at 10:19 PM, Christopher Lund <l...@wayne.edu> wrote:

> Chip and I agree on a lot of this, so I’ll try to make this short:
>
>
>
> *“Chris says this is a matter of church freedom, which it is, but then he
> has to face the question of why isn't every question a church decides a
> matter of church freedom (no balancing, and the church always wins).”*
>
>
>
> True.  There have to be limits on church autonomy, just as there are
> limits on everything else.  The most obvious limit is that churches can
> only claim autonomy in their **religious** affairs.  But there also is
> going to have to be some kind of limitation for sufficiently strong
> government interests.  To give just one example, *Hosanna-Tabor *gives
> churches immunity from ministers bringing employment-related claims.  But
> it also says that churches have no immunity from child-labor laws.  The
> interest in protecting children is (rightly) just too strong.
>
>
>
> Chip and I both think that this line of cases is motivated by two things:
> (1) notions of judicial incompetence and (2) notions of religious freedom.
> The only thing I want to press is that (1) exists in significant part
> because of (2).  That is, a big reason why we deem the state incompetent to
> address religious questions is because we think religious organizations
> should have the right to decide those questions for themselves without
> government interference.*
>
>
>
> Again, at the end of the day, I don’t know if I have any disagreement at
> all with Chip.  I use the phrase, “church autonomy.”  He’d prefer the
> phrase, “church freedom.”  I’d say churches have autonomy in their
> religious affairs.  He would rather say, I take it, that they have freedom
> in deciding ecclesiastical questions.  Fine with me.
>
>
>
> Best,
>
> Chris
>
>
>
> * I have sometimes thought similar things might be said about the
> political-question doctrine, for its motivations lie both in: (1) notions
> of judicial incompetence over political questions, (2) notions that
> political questions are committed to other branches.  And again there, (2)
> becomes a reason for (1).  But maybe I should leave well enough alone…
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Thursday, April 27, 2017 9:39 PM
>
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Church excludes nursing woman
>
>
>
> Thanks for the kind words, Marty.  Now look at your formulation: "We [the
> state] *accept* your word that nursing women are not 'entitled' to
> worship as a matter of religious precepts.  We will not second-guess that
> ecclesiastical question.  Nevertheless, we have concluded that the
> nondiscrimination norm is more important than honoring religious notions of
> 'entitlement.'  Therefore you can't exclude such women."
>
>
>
> That approach is perfectly inconsistent with the "no balancing" paragraph
> th

Re: Church excludes nursing woman

[Steven Jamar]

Anyway, to return to my original question, how would this work out under RFRA, 
it seems that there is no substantial burden on religious exercise unless the 
church in question considers uncovered breast feeding immodest under its 
religious teachings. Then, is uncovered breast feeding a compelling state 
interest? I don’t think so. If it is, there seems to be no less instrusive 
alternative than to say “allow it.” 
Under Smith, this would be a neutral, generally applicable law that applies to 
religious conduct — here allowing uncovered breast feeding during a service in 
the sanctuary — where the person has a right to be unless the church 
excommunicates (or whatever term they use to define members) the person.
Which then brings us to Hosanna-Tabor. I agree that some aspects of religious 
practice, e.g., selecting ministers and even choosing who is a “minister” is 
insulated from governmental regulation. And I agree that a religion can choose 
who will be admitted as congregants and can impose any rules of modesty and 
decorum it likes. But can a religion be required to show that it has a rule of 
modesty that was violated? Or can it exclude anyone for an ad hoc, unknown 
rule? Does it matter whether it was an officious meddling congregant as opposed 
to a church official who did the meddling? Or is the exclusion utterly 
unreviewable.
The ecclesiastical immunity of Hossana-Tabor has limits — child abuse, 
pedophilia, murder, slavery, and so on — but just where is that edge? Surely we 
can stop trial of faith by serpent’s bite. But what short of that?

Steve


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost





> On Apr 27, 2017, at 10:19 PM, Christopher Lund <l...@wayne.edu> wrote:
> 
> Chip and I agree on a lot of this, so I’ll try to make this short:
>  
> “Chris says this is a matter of church freedom, which it is, but then he has 
> to face the question of why isn't every question a church decides a matter of 
> church freedom (no balancing, and the church always wins).”
>  
> True.  There have to be limits on church autonomy, just as there are limits 
> on everything else.  The most obvious limit is that churches can only claim 
> autonomy in their *religious* affairs.  But there also is going to have to be 
> some kind of limitation for sufficiently strong government interests.  To 
> give just one example, Hosanna-Tabor gives churches immunity from ministers 
> bringing employment-related claims.  But it also says that churches have no 
> immunity from child-labor laws.  The interest in protecting children is 
> (rightly) just too strong.
>  
> Chip and I both think that this line of cases is motivated by two things: (1) 
> notions of judicial incompetence and (2) notions of religious freedom.  The 
> only thing I want to press is that (1) exists in significant part because of 
> (2).  That is, a big reason why we deem the state incompetent to address 
> religious questions is because we think religious organizations should have 
> the right to decide those questions for themselves without government 
> interference.*  
>  
> Again, at the end of the day, I don’t know if I have any disagreement at all 
> with Chip.  I use the phrase, “church autonomy.”  He’d prefer the phrase, 
> “church freedom.”  I’d say churches have autonomy in their religious affairs. 
>  He would rather say, I take it, that they have freedom in deciding 
> ecclesiastical questions.  Fine with me.
>  
> Best,
> Chris
>  
> * I have sometimes thought similar things might be said about the 
> political-question doctrine, for its motivations lie both in: (1) notions of 
> judicial incompetence over political questions, (2) notions that political 
> questions are committed to other branches.  And again there, (2) becomes a 
> reason for (1).  But maybe I should leave well enough alone…
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Thursday, April 27, 2017 9:39 PM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Church excludes nursing woman
>  
> Thanks for the kind words, Marty.  Now look at your formulation: "We [the 
> state] accept your word that nursing women are not 'entitled' to worship as a 
> matter of religious precepts.  We will not second-guess that ecclesiastical 
> question.  Nevertheless, we have concluded that the nondiscrimination norm is 
> more important than honoring religious notions of 'entitlement.'  Therefore 
> you can't exclude such women."
>  
> That approach is pe

RE: Church excludes nursing woman

[Christopher Lund]

Chip and I agree on a lot of this, so I’ll try to make this short:

“Chris says this is a matter of church freedom, which it is, but then he has to 
face the question of why isn't every question a church decides a matter of 
church freedom (no balancing, and the church always wins).”

True.  There have to be limits on church autonomy, just as there are limits on 
everything else.  The most obvious limit is that churches can only claim 
autonomy in their *religious* affairs.  But there also is going to have to be 
some kind of limitation for sufficiently strong government interests.  To give 
just one example, Hosanna-Tabor gives churches immunity from ministers bringing 
employment-related claims.  But it also says that churches have no immunity 
from child-labor laws.  The interest in protecting children is (rightly) just 
too strong.

Chip and I both think that this line of cases is motivated by two things: (1) 
notions of judicial incompetence and (2) notions of religious freedom.  The 
only thing I want to press is that (1) exists in significant part because of 
(2).  That is, a big reason why we deem the state incompetent to address 
religious questions is because we think religious organizations should have the 
right to decide those questions for themselves without government interference.*

Again, at the end of the day, I don’t know if I have any disagreement at all 
with Chip.  I use the phrase, “church autonomy.”  He’d prefer the phrase, 
“church freedom.”  I’d say churches have autonomy in their religious affairs.  
He would rather say, I take it, that they have freedom in deciding 
ecclesiastical questions.  Fine with me.

Best,
Chris

* I have sometimes thought similar things might be said about the 
political-question doctrine, for its motivations lie both in: (1) notions of 
judicial incompetence over political questions, (2) notions that political 
questions are committed to other branches.  And again there, (2) becomes a 
reason for (1).  But maybe I should leave well enough alone…

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 9:39 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Church excludes nursing woman

Thanks for the kind words, Marty.  Now look at your formulation: "We [the 
state] accept your word that nursing women are not 'entitled' to worship as a 
matter of religious precepts.  We will not second-guess that ecclesiastical 
question.  Nevertheless, we have concluded that the nondiscrimination norm is 
more important than honoring religious notions of 'entitlement.'  Therefore you 
can't exclude such women."

That approach is perfectly inconsistent with the "no balancing" paragraph that 
Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very well with 
pre-Smith Free Exercise law, but that's been wiped out by Smith.  The Court in 
Hosanna-Tabor says Smith does not apply in a ministerial exception case. Why? 
Because who is fit for ministry, like who may attend a particular worship 
service, cannot be a matter for state decision. Chris says this is a matter of 
church freedom, which it is, but then he has to face the question of why isn't 
every question a church decides a matter of church freedom (no balancing, and 
the church always wins).

If you read the article (Marty and Chris have), you will see how deeply 
grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme Court 
precedent (church property and personnel cases, all the way back to Watson v. 
Jones) and 2) widespread, continuous lower court adherence in the wake of 
Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom to control 
the conditions of worship -- who leads, and who may attend), and the 
Establishment Clause (state is not competent to prescribe the appropriate 
participants in worship).  We didn't make this up; we found it deeply in the 
law.  Many others who have defended Hosanna-Tabor are making stuff up about 
some doctrine of institutional church autonomy that just doesn't exist.

On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
I don’t know whether anything rides on this in terms of results—maybe there is 
no need to get into it—but I think Hosanna-Tabor is just as much about the 
rights of religious organizations as it is about judicial competence.

Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees 
religious bodies independence from secular control or manipulation—in short, 
power to decide for themselves, free from state interference, matters of church 
government as well as those of faith and doctrine.”  It doesn’t use the phrase 
“church autonomy.”  But why isn’t that a pretty decent shorthand for what the 
Court is talking about here?  Throughout its opinion, the Court says things 
like  “the

Re: Church excludes nursing woman

[Ira Lupu]

Thanks for the kind words, Marty.  Now look at your formulation: "We [the
state] *accept* your word that nursing women are not 'entitled' to worship
as a matter of religious precepts.  We will not second-guess that
ecclesiastical question.  Nevertheless, we have concluded that the
nondiscrimination norm is more important than honoring religious notions of
'entitlement.'  Therefore you can't exclude such women."

That approach is perfectly inconsistent with the "no balancing" paragraph
that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very
well with pre-Smith Free Exercise law, but that's been wiped out by Smith.
The Court in Hosanna-Tabor says Smith does not apply in a ministerial
exception case. Why? Because who is fit for ministry, like who may attend a
particular worship service, cannot be a matter for state decision. Chris
says this is a matter of church freedom, which it is, but then he has to
face the question of why isn't every question a church decides a matter of
church freedom (no balancing, and the church always wins).

If you read the article (Marty and Chris have), you will see how deeply
grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme
Court precedent (church property and personnel cases, all the way back to
Watson v. Jones) and 2) widespread, continuous lower court adherence in the
wake of Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom
to control the conditions of worship -- who leads, and who may attend), and
the Establishment Clause (state is not competent to prescribe the
appropriate participants in worship).  We didn't make this up; we found it
deeply in the law.  Many others who have defended Hosanna-Tabor are making
stuff up about some doctrine of institutional church autonomy that just
doesn't exist.

On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund <l...@wayne.edu> wrote:

> I don’t know whether anything rides on this in terms of results—maybe
> there is no need to get into it—but I think *Hosanna-Tabor *is just as
> much about the rights of religious organizations as it is about judicial
> competence.
>
>
>
> *Hosanna-Tabor* says, quoting *Kedroff*, that “[t]he Constitution
> guarantees religious bodies independence from secular control or
> manipulation—in short, power to decide for themselves, free from state
> interference, matters of church government as well as those of faith and
> doctrine.”  It doesn’t use the phrase “church autonomy.”  But why isn’t
> that a pretty decent shorthand for what the Court is talking about here?
> Throughout its opinion, the Court says things like  “the Free Exercise
> Clause . . . protects a group’s right to shape its own faith and mission
> through its appointments” and “the First Amendment itself . . . gives
> special solicitude to the rights of religious organizations.”  There are a
> bunch of similar statements about churches’ “rights” or “freedoms” or
> “interests.”  So why are we hesitant to use the language of rights here?  I
> must be missing something.
>
>
>
> Look at the last paragraph of the opinion:
>
>
>
> *The interest of society in the enforcement of employment discrimination
> statutes is undoubtedly important.  But so too is the interest of religious
> groups in choosing who will preach their beliefs, teach their faith, and
> carry out their mission. When a minister who has been fired sues her church
> alleging that her termination was discriminatory, the First Amendment has
> struck the balance for us. The church must be free to choose those who will
> guide it on its way. The judgment of the Court of Appeals for the Sixth
> Circuit is reversed.*
>
>
>
> There are two interests, says the Court—society’s interest and the
> church’s interest.*  And the church’s interest triumphs, says the Court.
> The church must be free to choose those who guide it.  There is no
> expressed concern in that paragraph about judicial incompetence.  The
> expressed concern is about the church’s rights.
>
>
>
> Again, I’m not objecting to the results to which Chip’s formulation
> leads.  I don’t know quite where it leads.  A broad idea of Chip’s
> “exclusively ecclesiastical questions” could lead to a very robust
> understanding of *Hosanna-Tabor*.  I take that to be precisely what Marty
> was fearing in his most recent post.
>
>
>
> Best,
>
> Chris
>
>
>
> *Interest balancing (cough, cough).
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsBy

RE: Church excludes nursing woman

[Christopher Lund]

I don’t know whether anything rides on this in terms of results—maybe there is 
no need to get into it—but I think Hosanna-Tabor is just as much about the 
rights of religious organizations as it is about judicial competence.

Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees 
religious bodies independence from secular control or manipulation—in short, 
power to decide for themselves, free from state interference, matters of church 
government as well as those of faith and doctrine.”  It doesn’t use the phrase 
“church autonomy.”  But why isn’t that a pretty decent shorthand for what the 
Court is talking about here?  Throughout its opinion, the Court says things 
like  “the Free Exercise Clause . . . protects a group’s right to shape its own 
faith and mission through its appointments” and “the First Amendment itself . . 
. gives special solicitude to the rights of religious organizations.”  There 
are a bunch of similar statements about churches’ “rights” or “freedoms” or 
“interests.”  So why are we hesitant to use the language of rights here?  I 
must be missing something.

Look at the last paragraph of the opinion:

The interest of society in the enforcement of employment discrimination 
statutes is undoubtedly important.  But so too is the interest of religious 
groups in choosing who will preach their beliefs, teach their faith, and carry 
out their mission. When a minister who has been fired sues her church alleging 
that her termination was discriminatory, the First Amendment has struck the 
balance for us. The church must be free to choose those who will guide it on 
its way. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

There are two interests, says the Court—society’s interest and the church’s 
interest.*  And the church’s interest triumphs, says the Court.  The church 
must be free to choose those who guide it.  There is no expressed concern in 
that paragraph about judicial incompetence.  The expressed concern is about the 
church’s rights.

Again, I’m not objecting to the results to which Chip’s formulation leads.  I 
don’t know quite where it leads.  A broad idea of Chip’s “exclusively 
ecclesiastical questions” could lead to a very robust understanding of 
Hosanna-Tabor.  I take that to be precisely what Marty was fearing in his most 
recent post.

Best,
Chris

*Interest balancing (cough, cough).
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=36340

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 7:49 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Church excludes nursing woman

Neither Eugene not Steven has made any attempt to state the principle for which 
Hosanna-Tabor stands.  It certainly does not stand for a broad and free 
floating principle of church autonomy, subject to some balancing test.  It does 
not assert that broad principle, and it explicitly eschews any balancing of 
interests.

Hosanna-Tabor is much cleaner that many have made it out to be.  It reaffirms a 
longstanding constitutional principle, resting on both Religion Clauses of the 
First Amendment, that the state may not resolve exclusively ecclesiastical 
questions. See generally Lupu & Tuttle, The Mystery of Unanimity in 
[Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017), 
https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.

Who is fit for ministry is such a question.  Another exclusively ecclesiastical 
 question is who is entitled to attend a worship service, and under what 
conditions.  So the church has a First A right to exclude a breast-feeding 
woman from its worship service.  Once the church does so, it is no longer a 
place where she has a right to be.

On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:
I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http

Re: Church excludes nursing woman

[Marty Lederman]

I think Chip and Bob's article is probably the best thing yet written about
H-T, or at least it makes the best sense of the opinion.  As Chip knows,
however, I am uneasy, not about whether they've accurately captured what
the Chief was getting at (or what he must have been getting at), but about
just how one determines what is a "purely ecclesiastical question," and
about why adjudication of the legal claim in a case such as this, or H-T,
would necessarily *require the court to assess* such a religious question.

Here, for instance, why is "who is *entitled* to attend a worship service"
an "exclusively ecclesiastical question"?  Does it necessarily require an
assessment that civil authorities are incapable of making, such as whether
the presence of nursing women would make prayer ineffective?  (It might --
but perhaps not.  Depends on why the church is excluding them.  It might be
for the same (noncompelling) secular reasons that other organizations are
uneasy with nursing, e.g., it makes some men uncomfortable.)

But even if the question of "entitlement" to worship-attendance is, for
some reason, "exclusively ecclesiastical," why would civil authorities have
to engage on that question?  "Fine," the (completely hypothetical,
nonexistent) state might say:  "We *accept* your word that nursing women
are not 'entitled' to worship as a matter of religious precepts.  We will
not second-guess that ecclesiastical question.  Nevertheless, we have
concluded that the nondiscrimination norm is more important than honoring
religious notions of 'entitlement.'  Therefore you can't exclude such
women."

Of course, this entire hypo is off-the-charts, in the sense that no state
in our lifetimes -- or on this planet -- will ever prohibit churches from
imposing modesty rules for worship services.

On Thu, Apr 27, 2017 at 7:48 PM, Ira Lupu  wrote:

> Neither Eugene not Steven has made any attempt to state the principle for
> which Hosanna-Tabor stands.  It certainly does not stand for a broad and
> free floating principle of church autonomy, subject to some balancing
> test.  It does not assert that broad principle, and it explicitly eschews
> any balancing of interests.
>
> Hosanna-Tabor is much cleaner that many have made it out to be.  It
> reaffirms a longstanding constitutional principle, resting on both Religion
> Clauses of the First Amendment, that the state may not resolve exclusively
> ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of
> Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017),
> https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.
>
> Who is fit for ministry is such a question.  Another exclusively
> ecclesiastical  question is who is entitled to attend a worship service,
> and under what conditions.  So the church has a First A right to exclude a
> breast-feeding woman from its worship service.  Once the church does so, it
> is no longer a place where she has a right to be.
>
> On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar 
> wrote:
>
>> I assume freedom of association would protect a church in selecting its
>> membership. And I assume Hosanna-Tabor would protect religion-driven
>> decorum decisions like separate seating for men and women in synagogues and
>> mosques.
>> But this is just a case of people being uncomfortable — not a
>> religiously-compelled doctrine or code of conduct. I don’t see either
>> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just
>> any activity a church claims and RFRA requires a substantial burden on the
>> exercise of religion (assuming the VA RFRA is like the federal one — again,
>> I’m not interested in the particulars of the VA RFRA).
>>
>>
>> --
>> Prof. Steven D. Jamar
>> Assoc. Dir. of International Programs
>> Institute for Intellectual Property and Social Justice
>> http://iipsj.org
>> http://sdjlaw.org
>>
>> "In these words I can sum up everything I've learned about life:  It
>> goes on."
>>
>> --Robert Frost
>>
>>
>>
>>
>>
>> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
>>
>> 1.  Does the principle underlying *Hosanna-Tabor *extend
>> to churches excluding members (or visitors) based on race, sex, religion,
>> etc.?  I assume it would, which is why, for instance, Orthodox synagogues
>> could have separate seating for men and women, Nation of Islam events could
>> be men-only (there are a few cases on the latter, though free speech cases
>> rather than religious freedom cases), various churches could be racially or
>> ethnically exclusionary in their membership, and so on.
>>
>> 2.  If a church can exclude people from membership or
>> attendance based on race, sex, etc., I assume it would likewise be free to
>> exclude people who engage in certain behavior.
>>
>> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but
>> I assume the *Hosanna-Tabor *principle – if it’s 

Re: Church excludes nursing woman

[Ira Lupu]

Neither Eugene not Steven has made any attempt to state the principle for
which Hosanna-Tabor stands.  It certainly does not stand for a broad and
free floating principle of church autonomy, subject to some balancing
test.  It does not assert that broad principle, and it explicitly eschews
any balancing of interests.

Hosanna-Tabor is much cleaner that many have made it out to be.  It
reaffirms a longstanding constitutional principle, resting on both Religion
Clauses of the First Amendment, that the state may not resolve exclusively
ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of
Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017),
https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.

Who is fit for ministry is such a question.  Another exclusively
ecclesiastical  question is who is entitled to attend a worship service,
and under what conditions.  So the church has a First A right to exclude a
breast-feeding woman from its worship service.  Once the church does so, it
is no longer a place where she has a right to be.

On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar  wrote:

> I assume freedom of association would protect a church in selecting its
> membership. And I assume Hosanna-Tabor would protect religion-driven
> decorum decisions like separate seating for men and women in synagogues and
> mosques.
> But this is just a case of people being uncomfortable — not a
> religiously-compelled doctrine or code of conduct. I don’t see either
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just
> any activity a church claims and RFRA requires a substantial burden on the
> exercise of religion (assuming the VA RFRA is like the federal one — again,
> I’m not interested in the particulars of the VA RFRA).
>
>
> --
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org
> http://sdjlaw.org
>
> "In these words I can sum up everything I've learned about life:  It
> goes on."
>
> --Robert Frost
>
>
>
>
>
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
>
> 1.  Does the principle underlying *Hosanna-Tabor *extend
> to churches excluding members (or visitors) based on race, sex, religion,
> etc.?  I assume it would, which is why, for instance, Orthodox synagogues
> could have separate seating for men and women, Nation of Islam events could
> be men-only (there are a few cases on the latter, though free speech cases
> rather than religious freedom cases), various churches could be racially or
> ethnically exclusionary in their membership, and so on.
>
> 2.  If a church can exclude people from membership or
> attendance based on race, sex, etc., I assume it would likewise be free to
> exclude people who engage in certain behavior.
>
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but
> I assume the *Hosanna-Tabor *principle – if it’s applicable – would
> provide categorical protection, not subject to trumping under strict
> scrutiny.
>
> Eugene
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu ] *On
> Behalf Of *Steven Jamar
> *Sent:* Thursday, April 27, 2017 9:49 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Church excludes nursing woman
>
> If RFRA applied to the state, or if Virginia had a state RFRA that copied
> the federal RFRA, would this state law be legal?
>
> Virginia law provides that a woman can breast feed uncovered anywhere she
> has a legal right to be. Can a church then exclude her because breast
> feeding uncovered might make some other congregants uncomfortable?
>
> https://www.washingtonpost.com/local/virginia-politics/
> this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/
> adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>
> --
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org
> http://sdjlaw.org
>
>
> "Years ago my mother used to say to me... 'In this world Elwood' ... She
> always used to call me Elwood... 'In this world Elwood, you must be Oh So
> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend
> pleasant.  You may quote me." --Elwood P. Dowd
>
> - Mary Chase, "Harvey", 1950
>
>
>
> ___
> 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: Church excludes nursing woman

[Steven Jamar]

Eugene clearly reads Hosanna-Tabor far more broadly than I do.

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Whenever you find yourself on the side of the majority, it is time to pause 
and reflect."

Mark Twain






> On Apr 27, 2017, at 6:19 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> 
> If I’m right that Hosanna-Tabor applies, wouldn’t the church 
> just have a categorical right to exclude members or attendees, 
> notwithstanding any antidiscrimination law, just as it has a categorical 
> right to dismiss clergy notwithstanding any discrimination law – even without 
> a showing that the church feels religiously compelled to violate the law?
>  
> To be sure, I don’t think that Hosanna-Tabor protects “just 
> any activity [of] a church.”  But it does protect decisions whether to accept 
> or reject clergy; might it equally protect decisions whether to accept or 
> reject church members or attendees?
>  
> Eugene
>  
> 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 Steven Jamar
> Sent: Thursday, April 27, 2017 10:13 AM
> To: Law Religion & Law List
> Subject: Re: Church excludes nursing woman
>  
> I assume freedom of association would protect a church in selecting its 
> membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
> decisions like separate seating for men and women in synagogues and mosques.
> But this is just a case of people being uncomfortable — not a 
> religiously-compelled doctrine or code of conduct. I don’t see either 
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just 
> any activity a church claims and RFRA requires a substantial burden on the 
> exercise of religion (assuming the VA RFRA is like the federal one — again, 
> I’m not interested in the particulars of the VA RFRA).
>  
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org <http://iipsj.org/>
> http://sdjlaw.org <http://sdjlaw.org/>
> 
> "In these words I can sum up everything I've learned about life:  It goes on."
> 
> --Robert Frost
> 
> 
> 
> 
>  
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu 
> <mailto:vol...@law.ucla.edu>> wrote:
>  
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> 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 Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> <https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Failinger, Marie]

My class discussed this problem of government funding of parochial schools 
yesterday.   Most retreated to the simplistic model of “don’t take the money if 
you don’t want the conditions,”  which isn’t very reflective about the deeper 
and longer-term issues involved in financial interdependence between religion 
and the state.   They had great difficulty thinking through how far the 
government might, legally can and ethically should go in imposing majoritarian 
values on religious schools.

It does not seem that my students realize that, in an era of declining 
voluntary support for some religious institutions, some of them  truly hurting 
for money (especially to compete with the more lavishly appointed suburban 
public schools) may be tempted to take the money and either ignore the 
conditions or ignore the effect that complying with the conditions will have 
eventually on their community values.  Of course, these same temptations can 
also be presented by a tuition-financed religious school that finds itself 
catering to the consumerist mentality of parents who are paying significant 
tuition to send their children to religious schools and therefore expect them 
to compete with public schools in amenities, ethos and programs.

Partly, I think, this is partly due to the fact that the virtue and habit of 
benevolence and shared community sacrifice has not been passed down very well 
to the non-gray-haired members of Christian congregations in some 
denominations.As just one example, in my church body, which is more 
mainstream, many (perhaps most) church schools have gone from being largely 
supported through congregational giving (in which all of the people in the 
congregation essentially took care of the children of the church school) to 
tuition to be paid by the parents, with perhaps some limited scholarships for 
low-income people and perhaps meager support from the congregation.  This 
is not only true in the struggling congregations but in the wealthy 
congregations, where such support should be easily available.

Perhaps the justices who asked these questions are responding to this “reality 
on the ground” more than trying to stake out a different ideological approach.  
 However, I really wonder some days if the “voluntary principle” will work for 
the future in this much altered climate of expectations about religious 
benevolence, if our church body’s experience is representative.

Marie A. Failinger  |  Professor of Law
651-695-7658 |  Fax: 651-290-6414
marie.failin...@mitchellhamline.edu<mailto:marie.failin...@mitchellhamline.edu>

Mitchell Hamline School of Law
875 Summit Ave. | St. Paul, MN 55105
Great in theory. Even better in practice.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Wednesday, April 26, 2017 5:20 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?


Not all of the same folk who complain about government funding.



There are still some of us left who support the old model of significant 
limitations on government funding of religious institutions and significant 
protection of religious institutions from government regulation and 
interference.



What I see developing, unhappily, is both conservatives and liberals accepting 
a minimalist, formalistic understanding of the religion clauses. Constitutional 
prohibitions will invalidate overt discrimination against religion through 
regulation or funding.

Neutral regulations and conditions accompanying funding will be grist for the 
political mill. I suspect that the end result will be increased polarization 
and antipathy in our society and a patchwork quilt of distinct environments. A 
lot may depend on where one lives.



Alan


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Marc Stern <ste...@ajc.org<mailto:ste...@ajc.org>>
Sent: Wednesday, April 26, 2017 2:47:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.twitter.com/AJCGlobal>

RE: Church excludes nursing woman

[Volokh, Eugene]

If I’m right that Hosanna-Tabor applies, wouldn’t the church 
just have a categorical right to exclude members or attendees, notwithstanding 
any antidiscrimination law, just as it has a categorical right to dismiss 
clergy notwithstanding any discrimination law – even without a showing that the 
church feels religiously compelled to violate the law?

To be sure, I don’t think that Hosanna-Tabor protects “just any 
activity [of] a church.”  But it does protect decisions whether to accept or 
reject clergy; might it equally protect decisions whether to accept or reject 
church members or attendees?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 10:13 AM
To: Law Religion & Law List
Subject: Re: Church excludes nursing woman

I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost




On Apr 27, 2017, at 12:54 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle – if it’s applicable – would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c

--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org<http://iipsj.org/>
http://sdjlaw.org<http://sdjlaw.org/>

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




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Re: Church excludes nursing woman

[Steven Jamar]

I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).
 

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost





> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
> 
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> 
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org 
> http://sdjlaw.org 
> 
> "Years ago my mother used to say to me... 'In this world Elwood' ... She 
> always used to call me Elwood... 'In this world Elwood, you must be Oh So 
> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend 
> pleasant.  You may quote me." --Elwood P. Dowd
> 
> - Mary Chase, "Harvey", 1950
> 
> 
> 
>  
> ___
> To post, send message to Religionlaw@lists.ucla.edu 
> 
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 
> 
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.

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RE: Church excludes nursing woman

[Volokh, Eugene]

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle - if it's applicable - would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c

--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950



___
To post, send message to Religionlaw@lists.ucla.edu
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Mark Scarberry]

I would like to know whether her superior allowed or would have allowed other 
secular messages to be posted, like "Be a positive thinker!" or even "My 
daughter is the best!" Perhaps the burden should be on the military to show 
that other messages would have been treated the same. We are told only that "as 
far as the record shows," he would have. That's a bit ambiguous. Did the record 
show he would have?

The message was not, I think, overtly religious; how many list members would 
have thought, "Oh, that's from the Bible!" (It could have been from Dungeons 
and dragons, or a Lord of the Rings clone, or just vivid and creative 
language.) Nor was it exclusionary, so as to potentially disrupt the cohesion 
that might be important particularly in a military environment. Nor does it 
appear that the message was directed against others in the office that Sterling 
might have thought were against her.

Even with its somewhat archaic language, I would think that the message was 
entirely appropriate for a military, much of whose purpose is to defeat or 
deter others in the use of weapons.

If there might be a speech discrimination issue here -- with religious speech 
being favored under RFRA -- one solution would be to allow everyone to post a 
non-disruptive message at their desk.

 Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>>
Sent: Wednesday, April 26, 2017 4:37 PM
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>


Here's the government's brief in 
opposition<http://www.scotusblog.com/wp-content/uploads/2017/04/16-814-BIO.pdf>.
  It stresses that RFRA's substantial burden test requires the claimant at a 
minimum to provide evidence of an honest belief that the practice in 
question--rather than available alternatives--wasimportant to her exercise of 
religion (something utterly lacking here--see my description below).

The SG does not mention, in addition, that even if there were a substantial 
burden here, RFRA would not require a religious exemption because the 
government has a compelling interest in not violating the Free Speech Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> 
wrote:
Now that Paul Clement has filed a cert. 
petition<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified,a "mental reminder” to her and that she didnot intend 
to “send a message to anyone” else.  Paul's petition asserts, without citation 
to the record, that "[t]he conduct at issue was an undisputed exercise of 
religion by LCpl Sterling to beseech a higher power for spiritual strength and 
fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  S

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

No. But disagreements over matters related to sexual morality more broadly -- 
gay rights, abortion, contraception, sex outside marriage, in vitro 
fertilization, etc. -- explains much of the hostility to exemptions and the 
breakup of the coalition that passed RFRA.



On funding, there are many relevant changes: the decline of Protestant-Catholic 
tensions, the evangelicals switching sides, many black parents switching sides, 
the rise of the secular school choice movement. All these things both changed 
the numbers and reframed the issue.



Shameless plug: On the first point, see Sex, Atheism, and the Free Exercise of 
Religion, 88 U. Detroit Mercy L. Rev. 407 (2011). On the second, see Why the 
Supreme Court Changed Its Mind About Government Aid to Religious Institutions: 
It's a Lot More Than Just Republican Appointments, 2008 BYU L. Rev. 275.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Wednesday, April 26, 2017 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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 Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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George Washington University
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Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marc Stern]

There have been fights over parochial school teachers " living in sin, " 
announcing support for abortion, having an abortion; schools wishing to hire 
only believers for secular positions. Lately, there are challenges to abortion 
conscience clauses. LGBT rights certainly figure prominently, but they are not 
unique or even first in time. The old timers amongst us remember the efforts in 
the 1980s to require Christian schools  not getting  government money to mimic 
in all respects the curriculum of the public schools including value laden 
issues such as evolution and women's roles.

And none of this is to discuss the expanded role of government funding ( and 
levels of taxes) since the founding, at the federal level at least premised on 
a reconsidered view of delegated powers such as the spending clause.

Marc Stern
General Counsel
AJC
212  891 1480
646 287 2606(cell)




On Apr 26, 2017, at 7:23 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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 Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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--
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
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Please note that messag

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Here's the government's brief in opposition
.  It
stresses that RFRA's substantial burden test requires the claimant at a
minimum to provide evidence of an honest belief that the practice in
question--rather than available alternatives--was *important* to her
exercise of religion (something utterly lacking here--see my description
below).

The SG does not mention, in addition, that even if there were a substantial
burden here, RFRA would not require a religious exemption because the
government has a compelling interest in not violating the Free Speech
Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman  > wrote:
>
>> For purposes of a project I'm 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marty Lederman]

P.S.  I'd wager that most of the "left" also supports *O Centro*--indeed,
many might even argue for a *constitutionally* compelled exemption for
congregational ceremonial rituals of that kind.

This is all speculative, of course.

On Wed, Apr 26, 2017 at 7:27 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I think there has been very, very little change on the "left" in terms of
> views on the funding and regulation *of houses of worship *(except that,
> perhaps, there's no longer any understanding of/sympathy for the "no
> funding" rule).  Far as I know, there aren't a lot of folks on the "left"
> who oppose *Amos*, or even *Hosanna-Tabor *as applied to actual
> ministers.
>
> On Wed, Apr 26, 2017 at 7:22 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
>> So is it correct to conclude that the struggle over LGBT rights explains
>> 100% of any change in public attitudes -- left and right-- about funding
>> and regulation of houses of worship? If not, what else explains the change?
>> The end of the fight between Protestants and Catholics about public funding
>> of religious schools?
>> On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> I think people are aware that funding may bring more regulation. Judges
>>> tend to defer to government conditions attached to money, even though some
>>> of those conditions raise serious questions of unconstitutional conditions.
>>>
>>>
>>>
>>> The fear has lost much of its force in part because of *Smith* and the
>>> underenforcement or nonenforcement of state RFRAs. If these institutions
>>> are going to be regulated anyway, they have less to lose by taking the
>>> money. And if you look at the history of evangelical schools, where many of
>>> these claims are coming from, first they fought out the regulatory issues,
>>> in mostly unsuccessful litigation and in state legislatures and before
>>> state boards of education. Only after most of those issues were resolved
>>> one way or the other did they begin to push for equal access to government
>>> money.
>>>
>>>
>>>
>>> I’m less certain about this second point, but I think that many of them
>>> feel that the risk of extra conditions attached to money is smaller than
>>> the risk of fighting a culture war where the other side is government
>>> funded.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Douglas Laycock
>>>
>>> Robert E. Scott Distinguished Professor of Law
>>>
>>> University of Virginia Law School
>>>
>>> 580 Massie Road
>>>
>>> Charlottesville, VA 22903
>>>
>>> 434-243-8546 <(434)%20243-8546>
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Eric J Segall
>>>
>>>
>>> *Sent:* Wednesday, April 26, 2017 5:17 PM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
>>> Special Treatment or Not?
>>>
>>>
>>>
>>> When I worked for DOJ in the late 80's and litigated a major Chapter
>>> (now I think Title) 2 funding case in San Francisco, the main plaintiff's
>>> lawyer was a devout 7th Day Adventist who strongly feared government grants
>>> to religious schools would ultimately dissipate religious freedom. Many
>>> religious folks at the time held this view. I agree with Marty and Chris
>>> that this view seems to have largely disappeared.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Eric
>>>
>>> Sent from my iPhone
>>>
>>>
>>>
>>> ___
>>> 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.
>>
>> --
>> Sent from Gmail Mobile
>> F. Elwood & Eleanor Davis Pr

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

So is it correct to conclude that the struggle over LGBT rights explains
100% of any change in public attitudes -- left and right-- about funding
and regulation of houses of worship? If not, what else explains the change?
The end of the fight between Protestants and Catholics about public funding
of religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> I think people are aware that funding may bring more regulation. Judges
> tend to defer to government conditions attached to money, even though some
> of those conditions raise serious questions of unconstitutional conditions.
>
>
>
> The fear has lost much of its force in part because of *Smith* and the
> underenforcement or nonenforcement of state RFRAs. If these institutions
> are going to be regulated anyway, they have less to lose by taking the
> money. And if you look at the history of evangelical schools, where many of
> these claims are coming from, first they fought out the regulatory issues,
> in mostly unsuccessful litigation and in state legislatures and before
> state boards of education. Only after most of those issues were resolved
> one way or the other did they begin to push for equal access to government
> money.
>
>
>
> I’m less certain about this second point, but I think that many of them
> feel that the risk of extra conditions attached to money is smaller than
> the risk of fighting a culture war where the other side is government
> funded.
>
>
>
>
>
>
>
> 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 *Eric J Segall
>
>
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> When I worked for DOJ in the late 80's and litigated a major Chapter (now
> I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer
> was a devout 7th Day Adventist who strongly feared government grants to
> religious schools would ultimately dissipate religious freedom. Many
> religious folks at the time held this view. I agree with Marty and Chris
> that this view seems to have largely disappeared.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
>
> ___
> 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.

-- 
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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 Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

Not all of the same folk who complain about government funding.


There are still some of us left who support the old model of significant 
limitations on government funding of religious institutions and significant 
protection of religious institutions from government regulation and 
interference.


What I see developing, unhappily, is both conservatives and liberals accepting 
a minimalist, formalistic understanding of the religion clauses. Constitutional 
prohibitions will invalidate overt discrimination against religion through 
regulation or funding.

Neutral regulations and conditions accompanying funding will be grist for the 
political mill. I suspect that the end result will be increased polarization 
and antipathy in our society and a patchwork quilt of distinct environments. A 
lot may depend on where one lives.


Alan


From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Marc Stern <ste...@ajc.org>
Sent: Wednesday, April 26, 2017 2:47:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.twitter.com/AJCGlobal>
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu<mailto:l...@wayne.edu>
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief<https://na01.safelinks.pr

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[James Oleske]

I'm confused about how the "deal" has changed.

The Title VII exemption allowing religious preferences by religious
organizations has remained the same since its expansion in 1972, and the
key cases rejecting its application to other types of discrimination were
decided in the 1980s -- the same period Eric refers to below. See Rayburn
v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) ("While the language of § 702 makes clear that religious institutions
may base relevant hiring decisions upon religious preferences, Title VII
does not confer upon religious organizations a license to make those same
decisions on the basis of race, sex, or national origin.") (collecting
cases).

The Court unanimously recognized the ministerial exception in 2012,
explicitly following the pattern established by the circuit courts since
the 1970s.

Sure, there are some commentators who opposed both the 1972 expansion of
the Title VII exemption and the Court's 2012 recognition of the ministerial
exception, but I'm having difficulty seeing how the prevailing
understanding of "church autonomy" to "hire and fire for religious reasons"
has changed.

- Jim


On Wed, Apr 26, 2017 at 2:47 PM, Marc Stern <ste...@ajc.org> wrote:

> That’s all true, but the deal used to be no funding and lots of church
>  autonomy in return., including the right to hire and fire for religious
> reasons. The same folks who complain about government funding are quite
> willing to  allow government regulation of religious organizations with our
> regard to funding.
>
>
>
> Marc D. Stern
>
> General Counsel
>
> AJC
>
> 212 891 1480 <(212)%20891-1480>
>
> 646 289 2707 <(646)%20289-2707> (c )
>
> 212 891 1495 <(212)%20891-1495> (f)
>
> ste...@ajc.org
>
> www.ajc.org
>
> Facebook.com/AJCGlobal <http://www.facebook.com/AJCGlobal>
>
> Twitter.com/AJCGlobal <http://www.twitter.com/AJCGlobal>
>
> [image: Description: cid:image005.jpg@01CFA04D.71B24C30]
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Eric J Segall
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> When I worked for DOJ in the late 80's and litigated a major Chapter (now
> I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer
> was a devout 7th Day Adventist who strongly feared government grants to
> religious schools would ultimately dissipate religious freedom. Many
> religious folks at the time held this view. I agree with Marty and Chris
> that this view seems to have largely disappeared.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
> On Apr 26, 2017, at 5:03 PM, Christopher Lund <l...@wayne.edu> wrote:
>
> Marty makes some good points here.
>
>
>
> It leads me back to a recurring thought I’ve had about *Trinity Lutheran*
> and *Dignity Health*.  They don’t have much in common.  But in both
> cases, the rationale for distinctive treatment rests on an old
> separationist rationale that few people believe anymore or even
> understand.  “Separation for the sake of separation,” they will say.  Marty
> talks about *Trinity Lutheran *this way and he’s right, but I think *Dignity
> Health* is strikingly similar.  If *Dignity Health* were litigated today,
> and the religious exemption were requested under RFRA or *Sherbert/Yoder*,
> would it even raise a genuine issue?  I assume not—I can’t see a cognizable
> burden on religion.
>
>
>
> Things are changing all around.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty
> Lederman
> *Sent:* Saturday, April 22, 2017 11:36 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> Yes, but neither before, nor during, nor after, that 14-year window
> (1971-1985) did the Court ever suggest that direct money payments to a
> church wou

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marc Stern]

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.twitter.com/AJCGlobal>
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu<mailto:l...@wayne.edu>
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is r

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

What I find most surprising is that the demise of the argument that government 
funding will undermine religious freedom is occurring at a time when the 
argument may well turn out to be accurate at least in some locations.


It may be that for many people on the left the failure of the church autonomy 
and religious freedom arguments against state funding of religious institutions 
reflects a lack of commitment to both of these values and a reluctance to 
present arguments that reinforce either interest.


Government control will follow government funding. Not everyone thinks that is 
a bad result today.


Alan





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Eric J Segall <eseg...@gsu.edu>
Sent: Wednesday, April 26, 2017 2:16:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu<mailto:l...@wayne.edu>
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religi

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Eric J Segall]

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu<mailto:l...@wayne.edu>
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause constraint been virtually forgotten, the Court is likely 
on the verge of replacing a "no funding" prohibition with a "must fund" 
requirement!

He's also right that one major reason why this could happen is that the 
rationales for the "no funding" rule--in particular, Madison's 
church-autonomy-protective rationales--have virtually disappeared from the 
litigation, and from the public discourse more broadly.  (Note, for instance, 
that in Mitchell, O'Connor refers to "the original object of the Establishment 
Clause’s prohibition" without mentioning what it might be.)  One minor 
exception is the BJC amicus 
brief<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F07%2F15-577-BJC-Amici-Respondent.pdf=02%7C01%7Cesegall%40gsu.edu

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Christopher Lund]

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief<http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranMeritsAmicusUOJC.pdf>
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause constraint been virtually forgotten, the Court is likely 
on the verge of replacing a "no funding" prohibition with a "must fund" 
requirement!

He's also right that one major reason why this could happen is that the 
rationales for the "no funding" rule--in particular, Madison's 
church-autonomy-protective rationales--have virtually disappeared from the 
litigation, and from the public discourse more broadly.  (Note, for instance, 
that in Mitchell, O'Connor refers to "the original object of the Establishment 
Clause’s prohibition" without mentioning what it might be.)  One minor 
exception is the BJC amicus 
brief<http://www.scotusblog.com/wp-content/uploads/2016/07/15-577-BJC-Amici-Respondent.pdf>
 [disclosure:  I consulted on it]; but its arguments, which were once so 
prominent in Religion Clause jurisprudence and scholarship, apparently no 
longer resonate with the audience that matters, including, perhaps, the author 
of Rosenberger, who once "recognized special Establishment Clause dangers where 
the government makes direct money payments to sectarian institutions” and 
purported to be committed to "guard[ing] against this abuse.”

On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government mone

Re: Bible classes in elementary schools

[Hillel Y. Levin]

And remember that the cases that are actually brought are just the tip of
the iceberg.

I'm convinced that one reason that these aren't challenged often enough to
eradicate them entirely is that few people want to be the
"Jew/atheist/Muslim/secular humanist/agnostic/etc who stole Christmas."
What parents want to make their children a pariah in a small community by
taking away the Bible?

This is a version of the soft coercion that Kennedy spoke of, only here the
coercion is not necessarily in respectful participation but in tolerating a
clear constitutional violation.

On Monday, April 24, 2017, Christopher Lund <l...@wayne.edu> wrote:

> It is astonishing how much defiance there is of the basic principles of *Engel
> *and *Schempp*.  The cases are periodic, but the facts are striking and
> they make you wonder what’s really going on out there.
>
>
>
> So, for example, one recent case out of the Southern District of
> Mississippi involved videos shown during school assemblies encouraging
> conversion to Christianity, prayers delivered by invited clergy, and
> Gideons distributing Bibles.  All flagrant violations of the rules—for
> example, with the Gideons, the principal had instructed the teachers by
> email to make sure that the students came into contact with the
> Gideons—“Gideons will set up in the lobby of the fifth grade building at
> 7:35. Fifth grade teachers—please walk your class through the lobby at that
> time.”  The case is M*.B. ex rel. Bedi v. Rankin Cty. Sch. Dist*., No.
> 3:13CV241-CWR-FKB, 2015 WL 5023115 (S.D. Miss. July 10, 2015).
>
>
>
> Another case, coming out of South Carolina, involved graduation prayer at
> an elementary school.  The district judge remarked: “[T]he undersigned's
> most overwhelming rhetorical reaction to all of this is how in 2015 is
> there still any debate or legal nuance to hash over prayers at
> graduation?”  Am. Humanist Ass'n. v. S.C. Dep't of Educ., 108 F. Supp. 3d
> 355, 358 (D.S.C. 2015).  Indeed.
>
>
>
> When I taught in Mississippi, there was a teacher at a public high school
> near Vicksburg who had been fired at least twice for insisting on praying
> with her class.  Both times, there was such an outcry that the school
> district felt obliged to take her back.  She made no promises not to do the
> same thing in the future.  As far as I know, she’s still there.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu <javascript:_e(%7B%7D,'cvml','l...@wayne.edu');>
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu
> <javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>
> [mailto:religionlaw-boun...@lists.ucla.edu
> <javascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');>] *On
> Behalf Of *Nelson Tebbe
> *Sent:* Monday, April 24, 2017 10:18 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu
> <javascript:_e(%7B%7D,'cvml','religionlaw@lists.ucla.edu');>>
> *Subject:* Re: Bible classes in elementary schools
>
>
>
>
>
>
>
> CBS This Morning produced a piece about the case in early February — I
> appear (very) briefly: http://www.cbsnews.com/news/lawsuit-to-end-bible-
> class-west-virginia-mercer-county-public-schools-
> separation-church-state/?ftag=CNM-00-10aab8d=34252653 They
> obtained some powerful footage from parents and students who support the
> class.
>
>
>
> Nelson Tebbe
>
>
>
> On Apr 24, 2017, at 10:05 AM, Michael Masinter <masin...@nova.edu
> <javascript:_e(%7B%7D,'cvml','masin...@nova.edu');>> wrote:
>
>
>
> I grew up in Charleston, W.Va. and attended Kanawha County public schools
> beginning in 1952 from the first grade through the ninth grade; even before
> Engle and Abbington Township, we did not have bible study classes.  The
> school district was surprisingly compliant with the constitution as
> construed by SCOTUS; it ended de jure segregation in the fall of 1954, and
> ended opening prayers following Engle.  Unfortunately, the school district
> was not representative of the state as a whole.
>
>
>
> Mike
>
>
>
> Michael R. Masinter
>
> Professor of Law
>
> Nova Southeastern University
>
> 3305 College Avenue
>
> Fort Lauderdale, FL 33314
>
> 954.262.6151
>
> masin...@nova.edu <javascript:_e(%7B%7D,'cvml','masin...@nova.edu');>
>
>
&

RE: Bible classes in elementary schools

[Christopher Lund]

It is astonishing how much defiance there is of the basic principles of Engel 
and Schempp.  The cases are periodic, but the facts are striking and they make 
you wonder what’s really going on out there.

So, for example, one recent case out of the Southern District of Mississippi 
involved videos shown during school assemblies encouraging conversion to 
Christianity, prayers delivered by invited clergy, and Gideons distributing 
Bibles.  All flagrant violations of the rules—for example, with the Gideons, 
the principal had instructed the teachers by email to make sure that the 
students came into contact with the Gideons—“Gideons will set up in the lobby 
of the fifth grade building at 7:35. Fifth grade teachers—please walk your 
class through the lobby at that time.”  The case is M.B. ex rel. Bedi v. Rankin 
Cty. Sch. Dist., No. 3:13CV241-CWR-FKB, 2015 WL 5023115 (S.D. Miss. July 10, 
2015).

Another case, coming out of South Carolina, involved graduation prayer at an 
elementary school.  The district judge remarked: “[T]he undersigned's most 
overwhelming rhetorical reaction to all of this is how in 2015 is there still 
any debate or legal nuance to hash over prayers at graduation?”  Am. Humanist 
Ass'n. v. S.C. Dep't of Educ., 108 F. Supp. 3d 355, 358 (D.S.C. 2015).  Indeed.

When I taught in Mississippi, there was a teacher at a public high school near 
Vicksburg who had been fired at least twice for insisting on praying with her 
class.  Both times, there was such an outcry that the school district felt 
obliged to take her back.  She made no promises not to do the same thing in the 
future.  As far as I know, she’s still there.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Monday, April 24, 2017 10:18 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Bible classes in elementary schools



CBS This Morning produced a piece about the case in early February — I appear 
(very) briefly: 
http://www.cbsnews.com/news/lawsuit-to-end-bible-class-west-virginia-mercer-county-public-schools-separation-church-state/?ftag=CNM-00-10aab8d=34252653
 They obtained some powerful footage from parents and students who support the 
class.

Nelson Tebbe

On Apr 24, 2017, at 10:05 AM, Michael Masinter 
<masin...@nova.edu<mailto:masin...@nova.edu>> wrote:

I grew up in Charleston, W.Va. and attended Kanawha County public schools 
beginning in 1952 from the first grade through the ninth grade; even before 
Engle and Abbington Township, we did not have bible study classes.  The school 
district was surprisingly compliant with the constitution as construed by 
SCOTUS; it ended de jure segregation in the fall of 1954, and ended opening 
prayers following Engle.  Unfortunately, the school district was not 
representative of the state as a whole.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masin...@nova.edu<mailto:masin...@nova.edu>





From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Chambers, Hank
Sent: Monday, April 24, 2017 8:52 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Bible classes in elementary schools

Hello all -

My wife grew up Catholic in Bluefield, Mercer County, W.Va., in the 1980s, and 
took Bible in middle school.  Her take: "Of course, it is unconstitutional and 
has been for decades, and you felt like an outsider/strange one if you did not 
take the class." I was bemused when I heard about the Bible class decades ago, 
but chalked it up to local custom.

Go to  http://www.mercerbits.org/aboutus.htm  for more information about the 
Bible in the Schools program. Very interesting.

Hank

Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hcham...@richmond.edu<mailto:hcham...@richmond.edu>



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>>
Sent: Monday, April 24, 2017 4:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I do an informal raise your hand sort of survey of th

Re: Bible classes in elementary schools

[Nelson Tebbe]

CBS This Morning produced a piece about the case in early February — I appear 
(very) briefly: 
http://www.cbsnews.com/news/lawsuit-to-end-bible-class-west-virginia-mercer-county-public-schools-separation-church-state/?ftag=CNM-00-10aab8d=34252653
 They obtained some powerful footage from parents and students who support the 
class.

Nelson Tebbe

On Apr 24, 2017, at 10:05 AM, Michael Masinter 
<masin...@nova.edu<mailto:masin...@nova.edu>> wrote:

I grew up in Charleston, W.Va. and attended Kanawha County public schools 
beginning in 1952 from the first grade through the ninth grade; even before 
Engle and Abbington Township, we did not have bible study classes.  The school 
district was surprisingly compliant with the constitution as construed by 
SCOTUS; it ended de jure segregation in the fall of 1954, and ended opening 
prayers following Engle.  Unfortunately, the school district was not 
representative of the state as a whole.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masin...@nova.edu<mailto:masin...@nova.edu>





From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Chambers, Hank
Sent: Monday, April 24, 2017 8:52 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Bible classes in elementary schools

Hello all -

My wife grew up Catholic in Bluefield, Mercer County, W.Va., in the 1980s, and 
took Bible in middle school.  Her take: "Of course, it is unconstitutional and 
has been for decades, and you felt like an outsider/strange one if you did not 
take the class." I was bemused when I heard about the Bible class decades ago, 
but chalked it up to local custom.

Go to  http://www.mercerbits.org/aboutus.htm  for more information about the 
Bible in the Schools program. Very interesting.

Hank

Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hcham...@richmond.edu<mailto:hcham...@richmond.edu>



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>>
Sent: Monday, April 24, 2017 4:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone


On Apr 23, 2017, at 11:48 PM, Finkelman, Paul 
<paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>> wrote:
The community apparently raises $500,000 a year for the course – that should 
cover attorney’s fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
paul.finkel...@pitt.edu<mailto:paul.finkel...@pitt.edu>
o) 412-648-2079
c) 518-605-0296



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.

Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.

Douglas Laycock
Robert E. Scott Distinguished

RE: Bible classes in elementary schools

[Michael Masinter]

I grew up in Charleston, W.Va. and attended Kanawha County public schools 
beginning in 1952 from the first grade through the ninth grade; even before 
Engle and Abbington Township, we did not have bible study classes.  The school 
district was surprisingly compliant with the constitution as construed by 
SCOTUS; it ended de jure segregation in the fall of 1954, and ended opening 
prayers following Engle.  Unfortunately, the school district was not 
representative of the state as a whole.

Mike

Michael R. Masinter
Professor of Law
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314
954.262.6151
masin...@nova.edu





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Chambers, Hank
Sent: Monday, April 24, 2017 8:52 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Bible classes in elementary schools


Hello all -



My wife grew up Catholic in Bluefield, Mercer County, W.Va., in the 1980s, and 
took Bible in middle school.  Her take: "Of course, it is unconstitutional and 
has been for decades, and you felt like an outsider/strange one if you did not 
take the class." I was bemused when I heard about the Bible class decades ago, 
but chalked it up to local custom.



Go to  http://www.mercerbits.org/aboutus.htm  for more information about the 
Bible in the Schools program. Very interesting.



Hank


Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hcham...@richmond.edu<mailto:hcham...@richmond.edu>






From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Steven Jamar <stevenja...@gmail.com<mailto:stevenja...@gmail.com>>
Sent: Monday, April 24, 2017 4:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone


On Apr 23, 2017, at 11:48 PM, Finkelman, Paul 
<paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>> wrote:
The community apparently raises $500,000 a year for the course - that should 
cover attorney's fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
paul.finkel...@pitt.edu<mailto:paul.finkel...@pitt.edu>
o) 412-648-2079
c) 518-605-0296



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>]

Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
th

Re: Bible classes in elementary schools

[Chambers, Hank]

Hello all -


My wife grew up Catholic in Bluefield, Mercer County, W.Va., in the 1980s, and 
took Bible in middle school.  Her take: "Of course, it is unconstitutional and 
has been for decades, and you felt like an outsider/strange one if you did not 
take the class." I was bemused when I heard about the Bible class decades ago, 
but chalked it up to local custom.


Go to  http://www.mercerbits.org/aboutus.htm  for more information about the 
Bible in the Schools program. Very interesting.


Hank


Henry L. Chambers, Jr.
Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hcham...@richmond.edu




From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Steven Jamar <stevenja...@gmail.com>
Sent: Monday, April 24, 2017 4:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone


On Apr 23, 2017, at 11:48 PM, Finkelman, Paul 
<paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>> wrote:

The community apparently raises $500,000 a year for the course – that should 
cover attorney’s fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
paul.finkel...@pitt.edu<mailto:paul.finkel...@pitt.edu>
o) 412-648-2079
c) 518-605-0296




From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>]

Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
this<https://www.washingtonpost.com/local/education/a-popular-public-school-bible-class-in-west-virginia-faces-legal-challenge/2017/04/23/14c50460-2144-11e7-ad74-3a742a6e93a7_story.html>
 is constitutional?
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto: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.
--
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
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Re: Bible classes in elementary schools

[Steven Jamar]

I do an informal raise your hand sort of survey of those students in my con law 
class who had in-public-school instruction in Christianity in elementary 
school. It ranges from a low of 15% to around 50% each year. Once a student 
asked me if Catholicism counted as Christian. In that case it was indeed a 
public school, but only one teacher doing it.

Steve

Sent from Steve's iPhone 


> On Apr 23, 2017, at 11:48 PM, Finkelman, Paul <paul.finkel...@albanylaw.edu> 
> wrote:
> 
> The community apparently raises $500,000 a year for the course – that should 
> cover attorney’s fees.  Nice irony if the county and the donors help support 
> the  Freedom From Religion Foundation.
>  
>  
> ***
> Paul Finkelman
> John E. Murray Visiting Professor of Law
> University of Pittsburgh School of Law
> 3900 Forbes Avenue
> Pittsburgh, PA  15260
> paul.finkel...@albanylaw.edu
> paul.finkel...@yahoo.com
> paul.finkel...@pitt.edu
> o) 412-648-2079
> c) 518-605-0296
>  
> 
> 
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Sunday, April 23, 2017 11:36 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Bible classes in elementary schools
>  
> I think it is impossible to teach a constitutionally defensible Bible class 
> to 7 year olds. And anytime the Bible course is described as "history," the 
> game is over. What a waste of money for this School District to have to pay 
> the plaintiffs' attorneys fees, even if Liberty Institute is representing the 
> School  Board for free.
> On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
> <hd...@virginia.edu> wrote:
> One could teach a constitutional Bible course in public schools. The odds 
> that they are teaching it that way in Princeton, WV seem vanishingly small. 
> And the story's quotations from the curriculum seem to eliminate that slim 
> possibility.
> 
>  
> 
> Of course there is no constituency for teaching the Bible in the agnostic way 
> that would be constitutional. The political demand is to teach it as Sunday 
> School.
> 
>  
> 
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Marty Lederman [martin.leder...@law.georgetown.edu]
> 
> Sent: Sunday, April 23, 2017 9:49 PM
> To: Law & Religion issues for Law Academics
> Subject: Bible classes in elementary schools
> Any possibility this is constitutional?
> ___
> 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.
> --
> Sent from Gmail Mobile
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University
> ___
> 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 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Bible classes in elementary schools

[Finkelman, Paul]

The community apparently raises $500,000 a year for the course – that should 
cover attorney’s fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
paul.finkel...@pitt.edu<mailto:paul.finkel...@pitt.edu>
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>]

Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
this<https://www.washingtonpost.com/local/education/a-popular-public-school-bible-class-in-west-virginia-faces-legal-challenge/2017/04/23/14c50460-2144-11e7-ad74-3a742a6e93a7_story.html>
 is constitutional?
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
--
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Bible classes in elementary schools

[Finkelman, Paul]

Exactly. Of course Doug is right.  And this why it should be taught in Sunday 
School and not public school. The answer is obvious.
One question would be what are the qualifications for the teacher to teach the 
course?



***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
paul.finkel...@pitt.edu<mailto:paul.finkel...@pitt.edu>
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Sunday, April 23, 2017 11:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Bible classes in elementary schools


One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu]
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
this<https://www.washingtonpost.com/local/education/a-popular-public-school-bible-class-in-west-virginia-faces-legal-challenge/2017/04/23/14c50460-2144-11e7-ad74-3a742a6e93a7_story.html>
 is constitutional?
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Bible classes in elementary schools

[Laycock, H Douglas (hdl5c)]

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [martin.leder...@law.georgetown.edu]
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools

Any possibility 
this
 is constitutional?
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

RE: Bible classes in elementary schools

[Finkelman, Paul]

Hard to imagine; I like this juxtaposition.  Not religion – just history 
followed by “proclaiming” God’s word “is a good thing.”  The story does not 
indicate if there are any prayers at these sessions.


“Supporters are adamant that the weekly class is an elective meant to explore 
the history and literature of the Bible, not to promote religious belief.”

“My experience with it has been very positive. I’ve never known of anyone who 
has been pressured or felt ostracized,” said the Rev. David W. Dockery, senior 
pastor at First Baptist Church of Princeton. “Any time God’s word can be 
proclaimed is beneficial and is a good thing.”



***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
paul.finkel...@pitt.edu
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools

Any possibility 
this
 is constitutional?
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

Doug, I make no originalist claims about the scope of the "no aid"
principle under the federal Establishment Clause.  Chapter 3 of Lupu &
Tuttle, Secular Government, Religious People makes a "nuanced" (thank you)
argument about the normatively appropriate scope of that principle.  The
principle is not "no money for churches" -- it is "the state should not be
responsible for the formation of religious character, through religious
worship, instruction, or proselytizing." Government aid to secular
functions of faith-based entities is thus OK, and we recognize that drawing
the religious/secular line can be quite difficult.  I think the playground
grants in Missouri would not violate the Establishment Clause if the church
had to promise to make no religious use of the playground (just like the
schools in Mitchell v. Helms had to promise to make no religious use of
computers, etc).

As for the scope of state constitutional no funding provisions, I have
never offered any definitive view of federal constitutional boundaries on
them.  They would obviously violate the First A if they involved explicit
sectarian favoritism or animus.  Under current political circumstances, I
think state decision-makers can be trusted to make sensible decisions about
the scope of their own constitutional limitations.  Missouri is showing how
state politics might shape those decisions at the margins.  So Trinity
Lutheran Church, like Locke v. Davey, which Doug also criticized, is
federalism operating -- each state with its own policies about church-state
separation, and no obvious reason for federal constitutional interference.

On Sat, Apr 22, 2017 at 12:46 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> And you can argue for no aid because you think it's normatively desirable
> -- although at times I have understood you to be on the other side of the
> issue, or at least to have taken a much more nuanced view.
>
>
>
> But you cannot win the normative argument by claiming that the Founders
> decided, because they issue they decided was very different. And we should
> not exaggerate what the Supreme Court did, because for most of the last 70
> years, it struggled with two very different understandings of the
> Establishment Clause.
>
>
>
> There can be no original intent, understanding, or public meaning with
> respect to government programs to distribute funds to broad classes of
> beneficiaries, because there were essentially no such programs in 1791 or
> 1868.
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Saturday, April 22, 2017 11:44 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> Mark suggests I am advocating "disarmament for those . . . who think the
> underlying originalist principles incorporate at the very least
> non-discrimination against religious groups."  Au contraire.  To arms,
> Mark!  Please suggest something -- anything -- that supports the argument
> that the original meaning of the equal protection clause, or the free
> exercise clause, supports equal treatment of religious groups in the
> distribution of state funds.  It seems to me that the evidence, from all
> those state constitutional provisions re: no funding of religion, cuts
> strongly the other way, but I am open to persuasion.
>
> To Doug:  The Court adhered to a strong "free exercise exemption"
> principle only from 1963-1981, and Court majorities explicitly rejected
> that principle before 1963 and afterward.  You still fight for it because
> you think it's normatively desirable.  Fine.  And there has never been a
> repudiation by a majority of a "weaker" no-aid principle -- i.e., the state
> may not directly subsidize worship or religious instruction (a principle to
> which O'Connor plainly adhered, even as she wrote opinions that upheld aid
> for remedial teachers in secular subjects in religious schools, and aid for
> computers and other materials restricted to secular use).
>
> On Sat, Apr 22, 2017 at 11:19 AM, Mark Scarberry <
> mark.scarbe...@pepperdine.edu> wrote:
>
>> Originalism needs to be applied in context in light of underlying
>> principles and entrenched nonoriginalist doctrine. No one would have
>> thought in 1868 that the Establishment Clause would be given its current
>> expansive reading, as applied to the states; it now places very substantial
>>

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

And you can argue for no aid because you think it's normatively desirable -- 
although at times I have understood you to be on the other side of the issue, 
or at least to have taken a much more nuanced view.



But you cannot win the normative argument by claiming that the Founders 
decided, because they issue they decided was very different. And we should not 
exaggerate what the Supreme Court did, because for most of the last 70 years, 
it struggled with two very different understandings of the Establishment Clause.



There can be no original intent, understanding, or public meaning with respect 
to government programs to distribute funds to broad classes of beneficiaries, 
because there were essentially no such programs in 1791 or 1868.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, April 22, 2017 11:44 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Mark suggests I am advocating "disarmament for those . . . who think the 
underlying originalist principles incorporate at the very least 
non-discrimination against religious groups."  Au contraire.  To arms, Mark!  
Please suggest something -- anything -- that supports the argument that the 
original meaning of the equal protection clause, or the free exercise clause, 
supports equal treatment of religious groups in the distribution of state 
funds.  It seems to me that the evidence, from all those state constitutional 
provisions re: no funding of religion, cuts strongly the other way, but I am 
open to persuasion.

To Doug:  The Court adhered to a strong "free exercise exemption" principle 
only from 1963-1981, and Court majorities explicitly rejected that principle 
before 1963 and afterward.  You still fight for it because you think it's 
normatively desirable.  Fine.  And there has never been a repudiation by a 
majority of a "weaker" no-aid principle -- i.e., the state may not directly 
subsidize worship or religious instruction (a principle to which O'Connor 
plainly adhered, even as she wrote opinions that upheld aid for remedial 
teachers in secular subjects in religious schools, and aid for computers and 
other materials restricted to secular use).

On Sat, Apr 22, 2017 at 11:19 AM, Mark Scarberry 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, be

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

Mark suggests I am advocating "disarmament for those . . . who think the
underlying originalist principles incorporate at the very least
non-discrimination against religious groups."  Au contraire.  To arms,
Mark!  Please suggest something -- anything -- that supports the argument
that the original meaning of the equal protection clause, or the free
exercise clause, supports equal treatment of religious groups in the
distribution of state funds.  It seems to me that the evidence, from all
those state constitutional provisions re: no funding of religion, cuts
strongly the other way, but I am open to persuasion.

To Doug:  The Court adhered to a strong "free exercise exemption" principle
only from 1963-1981, and Court majorities explicitly rejected that
principle before 1963 and afterward.  You still fight for it because you
think it's normatively desirable.  Fine.  And there has never been a
repudiation by a majority of a "weaker" no-aid principle -- i.e., the state
may not directly subsidize worship or religious instruction (a principle to
which O'Connor plainly adhered, even as she wrote opinions that upheld aid
for remedial teachers in secular subjects in religious schools, and aid for
computers and other materials restricted to secular use).

On Sat, Apr 22, 2017 at 11:19 AM, Mark Scarberry <
mark.scarbe...@pepperdine.edu> wrote:

> Originalism needs to be applied in context in light of underlying
> principles and entrenched nonoriginalist doctrine. No one would have
> thought in 1868 that the Establishment Clause would be given its current
> expansive reading, as applied to the states; it now places very substantial
> limits on a state that desires to give religious groups equal access to
> resources. There are not enough originalists on the Court to modify that
> reading substantially, putting to one side the appropriate role of stare
> decisis for an originalist. Nor does it seem likely that the very expanded
> role of governments at all levels in controlling and allocating resources
> was contemplated in 1868.
>
> To the extent that incorporation requires that the First Amendment be
> given the same effect as applied to the states that it is given as applied
> to the federal government, it's not just equality as against a state that
> is at issue; equality in access to federal resources is also at issue.
>
> Chip's approach amounts to a kind of unilateral disarmament for those of
> us who think the underlying originalist principles incorporate at the very
> least non-discrimination against religious groups. When a nonoriginalist
> reading of the Establishment Clause puts the underlying originalist
> principles out of balance, there may be a justification for restoring the
> balance to honor originalist principles at a fairly high level of
> generality.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
> _____
> From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
> Sent: Saturday, April 22, 2017 8:09 AM
> Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
>
> Actually, the Court adhered to a strong no-aid principle from 1971 to
> 1985. There are no cases striking down aid programs before or after that
> window. And even in that window there were a lot more than three pence
> worth of exceptions.
>
>
>
> *Everson* announced two principles: no aid in absolutist terms, and no
> person can be deprived of social welfare benefits because of his religion.
> The two principles turn out to be inconsistent, because any government
> money can be understood either as aid or as a social welfare benefit. The
> inconsistency accounts for the inconsistencies of the*Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and *Board of Education v. Allen* in 1968, and all the cases
> from*Witters* forward.
>
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Saturday, April 22, 2017 9:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> A few points:
>
> 1) Trinity Lutheran has never been asked for or given its "word that the
> playground will be used for [exclusively] secular purposes." If it receives
> a grant, nothing in Missouri law will stop 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Eric J Segall]

The first sentence of Mark's email is partly why many of us keep writing over 
and over that there is no longer a real difference between Originalists and 
non-Originalists...

e

Sent from my iPhone

On Apr 22, 2017, at 11:19 AM, Mark Scarberry 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of theLemon-era cases. And the social welfare 
benefit principle accounts for the result inEverson, and Board of Education v. 
Allen in 1968, and all the cases fromWitters forward.



Douglas Laycock

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the fed

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marty Lederman]

Yes, but neither before, nor during, nor after, that 14-year window
(1971-1985) did the Court ever suggest that direct money payments to a
church would be constitutional under the Establishment Clause -- let alone
that a state would be constitutionally *prohibited *from adhering to such a
bright-line rule, something that 39 states have done for 200 or so years
(Missouri's prohibition having been in its Constitution when it joined the
union in 1821).  (And even in the states that do not have such an express
prohibition, and within the federal government, I am not aware of *any
*practice,
until very recently, of direct money grants being given to churches.  The
examples cited at pages 6-9 of the Orthodox Jewish Congregations brief
<http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranMeritsAmicusUOJC.pdf>
(cited
by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, *Mitchell*,
Justice O'Connor's controlling opinion stated that there are “special
dangers associated with direct money grants to religious institutions”—a
“form of aid [that] falls precariously close to the original object of the
Establishment Clause’s prohibition.”  And even in *Rosenberger*, Justice
Kennedy's majority opinion stated that “we have recognized special
Establishment Clause dangers where the government makes direct money
payments to sectarian institutions” and that “[i]t is, of course, true that
if the State pays a church’s bills it is subsidizing it, *and we must guard
against this abuse*.”  (Both of these were, of course, in the context of
"neutral" programs that did not *favor *religious recipients.)

Chip is right that it is remarkable that not only has this
longstanding *Establishment
Clause *constraint been virtually forgotten, the Court is likely on the
verge of replacing a "no funding" prohibition with a "must fund"
requirement!

He's also right that one major reason why this could happen is that the
rationales for the "no funding" rule--in particular, Madison's
church-autonomy-protective rationales--have virtually disappeared from the
litigation, and from the public discourse more broadly.  (Note, for
instance, that in *Mitchell, *O'Connor refers to "the original object of
the Establishment Clause’s prohibition" *without mentioning what it might
be*.)  One minor exception is the BJC amicus brief
<http://www.scotusblog.com/wp-content/uploads/2016/07/15-577-BJC-Amici-Respondent.pdf>
[disclosure:  I consulted on it]; but its arguments, which were once so
prominent in Religion Clause jurisprudence and scholarship, apparently no
longer resonate with the audience that matters, including, perhaps, the
author of *Rosenberger*, who once "recognized special Establishment Clause
dangers where the government makes direct money payments to sectarian
institutions” and purported to be committed to "guard[ing] against this
abuse.”

On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Actually, the Court adhered to a strong no-aid principle from 1971 to
> 1985. There are no cases striking down aid programs before or after that
> window. And even in that window there were a lot more than three pence
> worth of exceptions.
>
>
>
> *Everson* announced two principles: no aid in absolutist terms, and no
> person can be deprived of social welfare benefits because of his religion.
> The two principles turn out to be inconsistent, because any government
> money can be understood either as aid or as a social welfare benefit. The
> inconsistency accounts for the inconsistencies of the *Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and *Board of Education v. Allen* in 1968, and all the cases
> from *Witters* forward.
>
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546 <(434)%20243-8546>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Saturday, April 22, 2017 9:42 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> A few points:
>
> 1) Trinity Lutheran has never been asked for or given its "word that the
> playground will be used for [exclusively] secular purposes." If it receives
> a grant, nothing in Missouri law will stop the church from using the
> playground for worship services or religious instruction.
>
> 2) In my original post, I did not claim that the Madisonian narrative
> behind the "no funding" rules of the Establis

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Mark Scarberry]

Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of theLemon-era cases. And the social welfare 
benefit principle accounts for the result inEverson, and Board of Education v. 
Allen in 1968, and all the cases fromWitters forward.



Douglas Laycock

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the federal constitution; rather, it is whether equal 
funding is required by the federal constitution.

4) I understand completely the normative objections to a no funding rule when 
the state is subsidizing public safety.  And I understand the Church's 
arguments from the equal protection clause, and the free exercise clause, that 
suppo

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of the Lemon-era cases. And the social welfare 
benefit principle accounts for the result in Everson, and Board of Education v. 
Allen in 1968, and all the cases from Witters forward.



Douglas Laycock

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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the federal constitution; rather, it is whether equal 
funding is required by the federal constitution.

4) I understand completely the normative objections to a no funding rule when 
the state is subsidizing public safety.  And I understand the Church's 
arguments from the equal protection clause, and the free exercise clause, that 
support those normative objections.  What I do not understand, and have not 
seen, are anything resembling an originalist argument that a rule forbidding 
the funding of churches violates either of those two provisions. How anyone 
could read the history of the 14th A, and prevalent attitudes at the time, to 
support a constitutional requirement of equal funding of churches is beyond me. 
I am not an originalist, but Justices Thomas and Gorsuch claim to be, and I 
will be very curious to read the originalist portions of the opinions that 
either of them writes or joins.

On Sat, Apr 22, 2017 at 12:43 AM, Michael Peabody 
<mich...@californialaw.org<mailto:mich...@californialaw.org>> wrote:


As to the "secular function" argument, is it truly a secular function?  
Churches would claim that secular functions are not religious functions but at 
the same time are also saying, "We are doing something that secular 
organizations also do, but we are going to limit access in ways that secular 
non-profits by law cannot."   I don't know that such a position is tenable 
given the gestalt of the post-Obergefell age.

Further, many religious elementary schools as a rule do not generally 
distinguish between secular and religious portions but try to provide a 
wholistic spiritual atmosphere in all aspects of their activities and 
properties.  Having said this, I do believe the Court will avoid trying to 
figure out how secular or religious the use is, but rather take the 
organization's word that is is "secular."

And doesn't the "secular" designation invite secular regulation?

If the law required defibrillators and the state gave grants to secular 
institutions but denied them to religious schools that would be an entirely 
different matter. After all, a defibrillator has a clear purpose and can't be 
used for anything else. But here there is no such mandate for a rubber 
playground and a playground can be used for many things.

On a pers

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

>
> On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
> wrote:
>
>> The funding question resolved in the founding generation was special
>> allocation of public funds, not part of any broader program or category, to
>> support the core religious functions of churches -- the salaries of clergy
>> mostly, but also sometimes the construction of churches, or the income from
>> glebe lands, which could be used for any purpose the church chose. That
>> kind of expenditure was and is unconstitutional; there is no modern dispute
>> about that.
>>
>>
>>
>> In that environment,  the principle of no discrimination in favor of or
>> against religion was entirely consistent with the principle of no funding
>> for religion. There were no programs of funding broad categories of private
>> activities.
>>
>>
>>
>> Today's issue is nondiscriminatory funding of secular functions carried
>> out by religious organizations in religious contexts. Now the principles of
>> no discrimination and no funding squarely conflict, and we have to choose
>> between them. And the founding generation did not make that choice.
>>
>>
>> Douglas Laycock
>> Robert E. Scott Distinguished Professor of Law
>> University of Virginia
>> 580 Massie Road
>> Charlottesville, VA 22903
>> 434-243-8546 <(434)%20243-8546>
>> --
>> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucl
>> a.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
>> *Sent:* Friday, April 21, 2017 4:52 PM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
>> Special Treatment or Not?
>>
>> I have been struck this week by how almost all of the pro-state
>> discussion of Trinity Lutheran has focused on the problem of discrimination
>> by state funded churches (i.e., why should taxpayers fund activities from
>> which some are invidiously excluded?).  It's as if we (academics as well as
>> informed journalists) have all forgotten the origins and justifications of
>> no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
>> of such rules, is certainly not concerned with discrimination by recipient
>> churches.  It is, rather, focused on other policies that justify separation
>> in funding matters -- religious voluntarism (not forcing taxpayers to
>> subsidize faiths with which they disagree or agree); the danger of church
>> dependence on the state; mutual corruption of church and state that
>> financial relationships might produce, etc.. As John Ely wisely wrote, the
>> Establishment Clause is a separation of powers provision, and the same is
>> true for the state constsitutions' no-funding provisions, including
>> Missouri's.
>> Of course, times have changed, and the state now provides many more forms
>> of largesse, including funds for safe playground surfaces. So we can argue
>> about whether it is wise to relax state-based no funding rules (the 1st A
>> rules have already been relaxed to some extent), or whether it is fair to
>> exclude churches from some forms of largesse. (No one is excluding them
>> from police and fire protection).  My point here is that the Madisonian
>> understanding of church-state separation, and the no-funding rules that
>> followed, has been largely lost.  Maybe that's because the fight, so
>> prominent from the mid-19th century until relatively late in the 20th
>> century, about funding Catholic schools has long been over. Maybe our
>> collective forgetfulness about the Madisonian narrative is also about the
>> expanded welfare state, where religious communities play a huge partnership
>> role.  Maybe we now have full confidence in religious pluralism and the
>> unlikelihood of sectarian discrimination by the state, though the
>> continuing experience of Muslims and Native Americans in the U.S. should be
>> a cautionary note on that one.
>> All I know for sure is that the conversation has changed.  Not even
>> Justices Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday
>> of maintaining continuity with that tradition.  When the no-funding
>> tradition is reduced to a formal rule -- the state cannot write a check to
>> the church -- it will soon disappear in the face of countervailing legal
>> and political pressure.
>> And I must add that the idea that the Free Exercise Clause, as *an
>> original matter*, entitles houses of worship to equal treatment in state
>> funding arrangements seems spectacula

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Michael Peabody]

As to the "secular function" argument, is it truly a secular function?
Churches would claim that secular functions are not religious functions but
at the same time are also saying, "We are doing something that secular
organizations also do, but we are going to limit access in ways that
secular non-profits by law cannot."   I don't know that such a position is
tenable given the gestalt of the post-Obergefell age.

Further, many religious elementary schools as a rule do not generally
distinguish between secular and religious portions but try to provide a
wholistic spiritual atmosphere in all aspects of their activities and
properties.  Having said this, I do believe the Court will avoid trying to
figure out how secular or religious the use is, but rather take the
organization's word that is is "secular."

And doesn't the "secular" designation invite secular regulation?

If the law required defibrillators and the state gave grants to secular
institutions but denied them to religious schools that would be an entirely
different matter. After all, a defibrillator has a clear purpose and can't
be used for anything else. But here there is no such mandate for a rubber
playground and a playground can be used for many things.

On a personal note, I am a strong supporter of parochial education​. I send
both of my kids to religious schools at considerable expense. But I am
concerned with the trending winnowing away of the religious character of
these institutions if they begin to accept state funds and the state
imposes hiring, curriculum, and other regulations that impinge on this
character in order to protect the taxpayers' secular investment.

Ultimately, I do anticipate that the Court, if it reaches the merits, will
find in favor of Trinity Lutheran and accept the school's word that the
playground will be used for secular purposes.

Given the bakery and photographer cases, and threats to require facilities
to be open to all comers, I think a follow-up round of litigation on usage
will be unavoidable and given the results of the existing wedding services
cases involving small businesses, it would seem that churches ought to be
wary of what is lurking on the horizon if Trinity wins.

Thank you for the very informative and thoughtful points and discussion.

Michael Peabody, Esq.
President,
Founders First Freedom

On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
wrote:

> The funding question resolved in the founding generation was special
> allocation of public funds, not part of any broader program or category, to
> support the core religious functions of churches -- the salaries of clergy
> mostly, but also sometimes the construction of churches, or the income from
> glebe lands, which could be used for any purpose the church chose. That
> kind of expenditure was and is unconstitutional; there is no modern dispute
> about that.
>
>
>
> In that environment,  the principle of no discrimination in favor of or
> against religion was entirely consistent with the principle of no funding
> for religion. There were no programs of funding broad categories of private
> activities.
>
>
>
> Today's issue is nondiscriminatory funding of secular functions carried
> out by religious organizations in religious contexts. Now the principles of
> no discrimination and no funding squarely conflict, and we have to choose
> between them. And the founding generation did not make that choice.
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546 <(434)%20243-8546>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Friday, April 21, 2017 4:52 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> I have been struck this week by how almost all of the pro-state discussion
> of Trinity Lutheran has focused on the problem of discrimination by state
> funded churches (i.e., why should taxpayers fund activities from which some
> are invidiously excluded?).  It's as if we (academics as well as informed
> journalists) have all forgotten the origins and justifications of
> no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
> of such rules, is certainly not concerned with discrimination by recipient
> churches.  It is, rather, focused on other policies that justify separation
> in funding matters -- religious voluntarism (not forcing taxpayers to
> subsidize faiths with which they disagree or agree); the danger of church
> dependence on the state; mutual corruption

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

The funding question resolved in the founding generation was special allocation 
of public funds, not part of any broader program or category, to support the 
core religious functions of churches -- the salaries of clergy mostly, but also 
sometimes the construction of churches, or the income from glebe lands, which 
could be used for any purpose the church chose. That kind of expenditure was 
and is unconstitutional; there is no modern dispute about that.



In that environment,  the principle of no discrimination in favor of or against 
religion was entirely consistent with the principle of no funding for religion. 
There were no programs of funding broad categories of private activities.



Today's issue is nondiscriminatory funding of secular functions carried out by 
religious organizations in religious contexts. Now the principles of no 
discrimination and no funding squarely conflict, and we have to choose between 
them. And the founding generation did not make that choice.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, April 21, 2017 4:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Mark Scarberry]

One question is what to do when governments at all levels control more and more 
resource allocations (far more I think than Madison could have expected). 
Programs that target religious institutions for particular affirmative benefits 
still should be highly suspect. Programs that deny equal access to resources 
impose more and more of a burden as governments grow.

Some "benefits" may appropriately be seen as attempts to respect separate space 
for religious organizations and for religious obligations.

Mark

Mark S. Scarberry
Pepperdine University School of Law

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Friday, April 21, 2017 2:51:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, th

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Volokh, Eugene]

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.
___
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: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Eric J Segall]

ular counterparts, it should be protected against certain burdensome 
land use regulations -- then why shouldn't the pre-school be conceptualized as 
religious for the purpose of determining its eligibility to receive government 
funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Michael Peabody 
<mich...@californialaw.org<mailto:mich...@californialaw.org>>
Sent: Thursday, April 20, 2017 8:47:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org<http://foundersfirstfreedom.org>

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

lely on
> anecdotal evidence (but that includes a lot of talks to a lot of lay
> audiences and various advocates and advocacy groups for a lot of years) I
> suggest:
>
>
> Few arguments have been as effective in my discussions with progressive or
> secular audiences in arguing for distinctive treatment (e.g.
> accommodations) for religious individuals and institutions as the argument
> that the distinctiveness of religion is recognized and taken into account
> for establishment clause purposes and concerns in limiting government
> funding of religion.
>
>
> The unwillingness of progressive or secular groups to accept
> accommodations and exemptions for religious institutions increases
> exponentially when the religious institution receives government funds --
> and the rejection of accommodations reaches its zenith when the government
> funds support the very activities for which an accommodation is sought. An
> argument for religious institutional autonomy including exclusionary
> decisions that resonates with progressive and secular audiences is the idea
> that religious institutions are using private funds donated to them for the
> furtherance of sacred purposes and accordingly, they should be able to
> limit the use of those funds to only those activities and individuals that
> reflect that mission. That argument is not only unpersuasive, it is
> counterproductive, when public funds are at issue.
>
>
> At its harshest, the argument is expressed that religion will be
> characterized as sufficiently distinct from non-religion to require
> different treatment or sufficiently similar to non-religion to require
> similar treatment based solely on whichever characterization produces a
> favorably outcome for religion. When the characterization of religion
> is thought to be manipulated gamesmanship, support for religious liberty is
> diminished.
>
>
> At least this has been my experience.
>
>
> Alan
>
>
>
>
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Michael Peabody <mich...@californialaw.org>
> *Sent:* Thursday, April 20, 2017 8:47:24 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> Thank you. It is helpful and yet I see an ultimate collision between the
> dischordant rights to both be free from discrimination and also to
> discriminate.
>
> I suppose what I'm looking for is what happens when a church is able to
> get funding from the state for a project but then relies on free exercise
> to discriminate against a protected class in how that state-funded project
> is used.
>
> For instance, let's say that Trinity Lutheran gets it's playground and the
> state has a non-discrimination requirement.  Trinity normally uses the
> property but occasionally rents it out ay a nominal cost for events. An
> same-sex couple wants to get married there (obviously this particular
> example isn't perfect and I don't know what the church  thinks  about
>  same-sex marriage)  and the church declines the request citing religious
> reasons.
>
> In this scenario, Trinity would have achieved access to state-funded
> infrastructure by prevailing in a claim of anti-religious discrimination by
> the state, but then would claim that it could in turn discriminate in the
> use of this same infrastructure against LGBTQ persons. And if the state
> tried to enforce a non-discrimination policy, the church would claim the
> protection of church-state separation and defend its right to discriminate.
> So suddenly the already limited state resources are further hampered by
> virtue of the fact that the church is religious.
>
> So this circles around to the question - can a church that intends to use
> state funding in a discriminatory manner really present itself on an equal
> footing with secular non-profits when applying for state grants, or does
> the religious institution's discriminatory bent need to be taken into
> account when a state is dispensing limited state grants funds?
>
> Michael Peabody, Esq
> President,
> Founders First Freedom
> Foundersfirstfreedom.org
>
> On Apr 20, 2017 5:51 PM, "Christopher Lund" <l...@wayne.edu> wrote:
>
>> I don’t think there’s anything necessarily inconsistent with the two
>> positions you describe.  Religion might be entitled to special treatment in
>> some cases, but equal treatment in others.  (Doesn’t everyone, at some
>> level, believe that?)  Certainly the Court does.  The Court has, for
>> example, said that ministers must be accorded special (not equal) treatment
>&g

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

I think the question Michael poses is more complicated than his posts suggest 
in important respects, but I also think the dischordant rights argument he 
presents has substantial force.


>From an analytic perspective, because religion implicates not only liberty 
>values but group and identity values, and speech values, I think there are 
>cases where religion may need to be treated differently than non-religion and 
>situations where it should be treated the same as non-religion. But equality 
>and speech consequences present powerful counterweights to the idea that 
>religious institutions should as a general matter receive special exemptions 
>from general laws because of their distinctive nature while at the same time 
>be eligible for government grants and largess on the same terms as their 
>secular counterparts.


>From a policy perspective, I might rephrase Michael's question this way (my 
>apologies Michael if my rephrasing does not capture your meaning), If a 
>pre-school operated by an adjacent church should be conceptualized as 
>religious for the purpose of evaluating claims that 1. unlike its secular 
>counterparts, it should be permitted to discriminate on the basis of religious 
>belief and conduct in hiring staff -- including playground monitors; 2. unlike 
>its secular counterparts it should be permitted to discriminate on the basis 
>of religious belief and conduct in admitting students -- even if most of what 
>the students do is to play on the playground; 3. unlike its secular 
>counterparts it should be provided additional discretion in designing its 
>curriculum, and 4. unlike its secular counterparts, it should be protected 
>against certain burdensome land use regulations -- then why shouldn't the 
>pre-school be conceptualized as religious for the purpose of determining its 
>eligibility to receive government funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Michael Peabody <mich...@californialaw.org>
Sent: Thursday, April 20, 2017 8:47:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the c

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

Advocate Health Care does not present the question Mr. Peabody raises, or at 
least not squarely. The religious hospitals there do not seek exemption under 
some general guarantee of religious liberty; they seek to enforce a specific 
exemption that Congress enacted. The case is about statutory interpretation, 
and I expect the Court to treat it as such whichever way it decides.

The pipermail link in Chris Lund's post has citations to further academic 
discussion of the basic point. The interpretation of neutrality most consistent 
with liberty for all is neutral incentives, neither encouraging nor 
discouraging religion. That sometimes aligns with neutral categories, and 
sometimes requires exceptions.

Mr. Peabody's second post asks whether the church forfeits its free exercise 
rights when it accepts government funds. That is a question of unconstitutional 
conditions. The government's funding may increase the weight of its interest 
and tip the balance against exemptions in close cases. But the government 
should not generally be able to buy up constitutional rights with its general 
welfare spending.  And there is no connection between a safer playground 
surface and requiring a church to host a religious ceremony that violates its 
core teachings about marriage or any other religious matter.

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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Thursday, April 20, 2017 11:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people in

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Michael Peabody]

Thank you. It is helpful and yet I see an ultimate collision between the
dischordant rights to both be free from discrimination and also to
discriminate.

I suppose what I'm looking for is what happens when a church is able to get
funding from the state for a project but then relies on free exercise to
discriminate against a protected class in how that state-funded project is
used.

For instance, let's say that Trinity Lutheran gets it's playground and the
state has a non-discrimination requirement.  Trinity normally uses the
property but occasionally rents it out ay a nominal cost for events. An
same-sex couple wants to get married there (obviously this particular
example isn't perfect and I don't know what the church  thinks  about
 same-sex marriage)  and the church declines the request citing religious
reasons.

In this scenario, Trinity would have achieved access to state-funded
infrastructure by prevailing in a claim of anti-religious discrimination by
the state, but then would claim that it could in turn discriminate in the
use of this same infrastructure against LGBTQ persons. And if the state
tried to enforce a non-discrimination policy, the church would claim the
protection of church-state separation and defend its right to discriminate.
So suddenly the already limited state resources are further hampered by
virtue of the fact that the church is religious.

So this circles around to the question - can a church that intends to use
state funding in a discriminatory manner really present itself on an equal
footing with secular non-profits when applying for state grants, or does
the religious institution's discriminatory bent need to be taken into
account when a state is dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund"  wrote:

> I don’t think there’s anything necessarily inconsistent with the two
> positions you describe.  Religion might be entitled to special treatment in
> some cases, but equal treatment in others.  (Doesn’t everyone, at some
> level, believe that?)  Certainly the Court does.  The Court has, for
> example, said that ministers must be accorded special (not equal) treatment
> in some constitutional contexts (like their ability to bring
> employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that
> ministers must be accorded equal (not special) treatment in other
> constitutional cntexts (like their ability to sit in the constitutional
> convention—see McDaniel v. Paty).  And the Court was unanimous both times!
>
>
>
> For the classic reconciliation of the pro-exemption position and the
> equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and
> Substantial Neutrality, available here, http://via.library.depaul.edu/
> cgi/viewcontent.cgi?article=2059=law-review.  Or just read this,
> http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.
> I’d add my own thoughts, but I’m running out of time.
>
>
>
> Also, by the way, you could have just as easily framed your point the
> other way:  Why do people insist that religious groups are not entitled to
> special exemptions because of some dominant equality principle, but then
> yet insist that religious groups cannot even be treated equally when it
> comes to funding?
>
>
>
> (And I should say that I think both of those framings—both yours and
> mine—are misleading and ultimately too harsh on the people who hold those
> views.)
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Michael Peabody
> *Sent:* Thursday, April 20, 2017 8:06 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> This term the Supreme Court is hearing two cases involving whether or not
> churches should be treated the same as other non-profit organizations, and
> I want to make sure I have this straight.
>
>
>
> First, in *Advocate Health Care Network v. Stapleton*, heard March 27,
> religious hospitals are claiming that they should be treated differently
> from other non-profit organizations when it comes to whether they need to
> comply with ERISA regulations that require them to adequately fund employee
> pension plans. If I understand it correctly, their central argument is that
> they are so closely affiliated with churches that their plans are,
> effectively, "established and maintained ... by a church."
>
>
>
> In the hospital ERISA 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Christopher Lund]

I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people insist that religious groups are not entitled to special 
exemptions because of some dominant equality principle, but then yet insist 
that religious groups cannot even be treated equally when it comes to funding?

(And I should say that I think both of those framings—both yours and mine—are 
misleading and ultimately too harsh on the people who hold those views.)

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Thursday, April 20, 2017 8:06 PM
To: Law & Religion issues for Law Academics 
Subject: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

This term the Supreme Court is hearing two cases involving whether or not 
churches should be treated the same as other non-profit organizations, and I 
want to make sure I have this straight.

First, in Advocate Health Care Network v. Stapleton, heard March 27, religious 
hospitals are claiming that they should be treated differently from other 
non-profit organizations when it comes to whether they need to comply with 
ERISA regulations that require them to adequately fund employee pension plans. 
If I understand it correctly, their central argument is that they are so 
closely affiliated with churches that their plans are, effectively, 
"established and maintained ... by a church."

In the hospital ERISA cases, religious institutions are demanding special 
treatment BECAUSE they are religious.

Now, in Trinity Lutheran Church v. Pauley, heard April 19, a church is claiming 
that they should NOT be treated differently from other non-profit organizations 
when it comes to whether or not they can participate in a state program that 
provides funding for playground resurfacing material when doing so would 
violate the state constitution.

In the Trinity Lutheran case and as indicated by amici, religious institutions 
are demanding that they be treated THE SAME as secular non-profit organizations.

So do churches want to be treated in a discriminatory manner or not? It seems 
that if regulations could impose some kind of financial responsibility on them, 
church-state separation applies. Yet, if they can get some infrastructure 
upgrade benefit, churches want to fully participate with no such separation.

But what will happen if the state, in return, imposes non-discrimination 
provisions on the churches for the use of the state-funded infrastructure? 
Would they still be treated the same as other non-profits and be required to 
open their facilities to all, or will they then be able to assert the 
protection of church-state separation?


Michael Peabody, Esq.
President,
Founders First Freedom
foundersfirstfreedom.org


___
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Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

I would just say Sandy, that when it comes to standing, ripeness and mootness, 
the only way the Court could act in a principled manner would be to shelve all 
prior cases and start over.

e

Sent from my iPhone

On Apr 18, 2017, at 6:45 PM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

I can’t refrain from asking the snarky question as to whether anyone believes 
that the decision of the Supreme Court to decide or to dump the case will 
represent a “principled” elaboration of mootness doctrine, as against 1) a 
desire by Gorsuch and the other four to announce their solicitude for religious 
organizations in a comparatively easy case; 2) a prudential desire by the Court 
to wait a while before it so clearly illustrates the possible difference 
between a Justice Gorsuch and Justice Garland (contrary to my assertion that 
this is an “easy” case, which rests on its not being a 5=4 decision.

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:36 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I am once again reminded why I refuse to teach the 11th Amendment :-).  But of 
course you are all correct, I had forgotten about that line of cases.



Ash


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C714646cdacde479b914908d486aca2bb%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281523408998610=PqE5ZqjlSfdE5cshEYOIhkB0a6MORELMKhWpuUOSUpA%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.



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 James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):



"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.





- Jim





On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a stat

RE: Is Trinity Lutheran Church moot?

[Levinson, Sanford V]

I can't refrain from asking the snarky question as to whether anyone believes 
that the decision of the Supreme Court to decide or to dump the case will 
represent a "principled" elaboration of mootness doctrine, as against 1) a 
desire by Gorsuch and the other four to announce their solicitude for religious 
organizations in a comparatively easy case; 2) a prudential desire by the Court 
to wait a while before it so clearly illustrates the possible difference 
between a Justice Gorsuch and Justice Garland (contrary to my assertion that 
this is an "easy" case, which rests on its not being a 5=4 decision.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:36 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?


I am once again reminded why I refuse to teach the 11th Amendment :-).  But of 
course you are all correct, I had forgotten about that line of cases.



Ash


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.



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 James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):



"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.





- Jim





On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a state official in his 
official capacity, is a "person" within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546<tel:(434)%20243-8546>



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religio

Re: Is Trinity Lutheran Church moot?

[Ashutosh A Bhagwat]

I am once again reminded why I refuse to teach the 11th Amendment :-).  But of 
course you are all correct, I had forgotten about that line of cases.


Ash


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Sent: Tuesday, April 18, 2017 2:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?



See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):



"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.





- Jim





On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546<tel:(434)%20243-8546>



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?



Ash Bhagwat

Martin Luther King, Jr. Professor of Law

UC Davis School of Law
(530) 752-8687<tel:(530)%20752-8687>

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>





From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
T

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):

"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.


- Jim


On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:
There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric
Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546<tel:(434)%20243-8546>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687<tel:(530)%20752-8687>

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

That Will arose in state court is probably why the Court wrote it in terms of 
who is a person. They had not yet held that the Eleventh Amendment applies in 
state court (that’s Alden v Maine, in 1997 I think). So they said that § 1983 
doesn’t create a cause of action. The metastasizing of sovereign immunity 
reaches every where.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:45 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric
Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

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 Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they descri

Re: Is Trinity Lutheran Church moot?

[James Oleske]

See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):

"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that
our holding in *Edelman* that § 1983 does not abrogate the States' Eleventh
Amendment immunity is 'most likely incorrect.' To reach this conclusion he
relies on 'assum[ptions]' drawn from the Fourteenth Amendment, on
'occasional remarks' found in a legislative history that contains little
debate on § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor
to § 1983, on the reference to 'bodies politic' in the Act of Feb. 25,
1871, 16 Stat. 431, the 'Dictionary Act,' and, finally on the general
language of § 1983 itself. But, unlike our Brother BRENNAN, *we simply are
unwilling to believe, on the basis of such slender 'evidence,' that
Congress intended by the general language of § 1983 to override the
traditional sovereign immunity of the States*. We therefore conclude that
neither the reasoning of *Monell* or of our Eleventh Amendment cases
subsequent to *Edelman*, nor the additional legislative history or
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a
conclusion different from that which we reached in *Edelman.*



- Jim


On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall <eseg...@gsu.edu> wrote:

> There's also language in other cases involving federal jurisdiction that
> Congress didn't intend 1983 to abrogate immunity. Will is only a state
> court case.
>
> Best,
>
> Eric
>
> Sent from my iPhone
>
> On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> Because the Court held that neither a state, nor a state official in his
> official capacity, is a “person” within the meaning of § 1983. It is a
> slightly round about way of saying that § 1983 does not override sovereign
> immunity. Will v. Michigan Dept. of State Police.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Ashutosh
> A Bhagwat
> *Sent:* Tuesday, April 18, 2017 5:31 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Is Trinity Lutheran Church moot?
>
>
>
> I may be completely wrong here, but if this is a section 1983 case
> enforcing the Religion Clauses as incorporated through the 14th Amendment,
> does that trump 11th Amendment immunity?  What am I missing?
>
>
>
> Ash Bhagwat
>
> Martin Luther King, Jr. Professor of Law
>
> UC Davis School of Law
> (530) 752-8687
>
> Find my papers at:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>
>
>
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
> *Sent:* Tuesday, April 18, 2017 2:21 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Is Trinity Lutheran Church moot?
>
>
>
> I haven’t looked at the complaint, but that has to be right. Damages for
> delay could not be recovered from the state, or from any state official in
> his official capacity,  because of sovereign immunity. And they could not
> be recovered from any state official in his personal capacity, because of
> qualified immunity. There is certainly no clearly settled law in favor of
> the church.
>
>
>
> So injunction or declaratory judgment against an official in his or her
> official capacity are the only possible remedies.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Eric
> J Segall
> *Sent:* Tuesday, April 18, 2017 5:13 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Is Trinity Lutheran Church moot?
>
>
>
> Doug, is the complaint seeking money as damages for wrongful denial

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

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 Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.



They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted 

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

But the whole point of the voluntary cessation doctrine is that a promise to 
comply in the future is not enough.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:28 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?

Well if that is true, and I think it is, the state's promise to treat their 
grant applications in the future equally with all others is all they can get 
(admittedly they'd rather have an injunction) but that seems a slender reed.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:22 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.

So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.

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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

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 Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be

RE: Is Trinity Lutheran Church moot?

[Laycock, H Douglas (hdl5c)]

Because the Court held that neither a state, nor a state official in his 
official capacity, is a "person" within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

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 Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven't looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



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 Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it's paid out, but I don't actually 
know that.



They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.



Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.



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 Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Chur