Re: Locke v. Davey and expanded free exercise rights
Alan, A state law that conditioned aid on not maintaining a Kosher kitchen would seem to discriminate on the basis of religion and to lack a compelling state interest. The Saturday operation condition might be treated as neutral on its face. If so, wouldn't Smith apply? Brian [EMAIL PROTECTED] 03/02/2004 2:29:47 PM I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought
Re: Locke v. Davey and expanded free exercise rights
I think Alan has made an interesting point here. The footnote states that "at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause." First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis
RE: Locke v. Davey and expanded free exercise rights
The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions
Re: Locke v. Davey and expanded free exercise rights
Marc makes a good and perfectly fair point. The question for me is the relative balance of the burdens. Where there is a generally applicable law, that means that there is some harm the legislature was trying to prevent. Where it imposes a burden on religious entities, I think it is perfectly legitimate for legislators to consider whether lifting that burden is appropriate. If it [nulifying the law for the religious practice] imposes a de minimis burden on the society, then by all means, lift the burden. The peyote exemption is a perfect example. But where it imposes a serious and intolerable burden on the society, the burden on the religion is outweighed. For example, the decision to exempt clergy from child abuse reporting places an intolerable burden on children by leaving them unprotected where the only one who has knowledge of the abuse does not report. I think the Court in Smith was dead-on when it stated that we should expect legislatures to be sympathetic listeners to claims of religious burden. My greatest concern is when the legislature only listens to the religious institution and then fails to listen to (or ask) those significantly harmed by lifting the burden on the religious institution. When legislators assume that those who are religious will not harm the public good, they are already harming the public good by failing to make an independent assessment of it. Marci What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board
Re: Locke v. Davey and expanded free exercise rights
The Women's Contraceptive Equity Act (WCEA) is not limited to organizations that receive state funds. Catholic Charities could refuse all state support and it would still have to comply with the WCEA. Further, the criteria employed by the Act to determine which religious organizations are exempt from the Act says nothing about government funding. I don't think there can be an exact equivalence between Establishment Clause prohibitions on state support and Free Exercise protection against government interference. An individual or organization may engage in some activities for religious reasons, receive free exercise protection for that choice, and still be eligible for state support. I think a soup kitchen affiliated with a Synagogue can receive funds from the state to feed the hungry and also have the free exercise right not to operate on Saturday or to maintain a Kosher kitchen. Do you disagree, Brian? I do agree that a religious organization that receives direct subsidies from the state must accept conditions accompanying those subsidies -- even if the condition violates the institutions religious commitments. But that's not what the WCEA does. Alan Brownstein UC Davis At 02:37 PM 3/2/2004 -0600, you wrote: Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...) Richard Dougherty University of Dallas Brian Landsberg wrote: The question posed was whether Catholic Charities were religion. If so, they would have qualified for an exemption from the rule. If they are a religion, as they insist, should that affect their eligibility to participate in state and federal programs? [EMAIL PROTECTED] 03/02/2004 6:20:00 AM Several postings have suggested that any accommodation that imposes a burden on third parties is unconstitutional. Why should this be so? A failure to accommodate burdens the rights of religious individuals or institutions. Why should there be an inflexible rule that where there are unavoidably burdens on one party or the other, the burdens must inevitably be borne by the religious side to the dispute? In this regard it should be noted that in the California case, the burden on Catholic Charities was one of principle, the burden on employees was merely financial (They had to pay for their own contraceptives; Catholic Charities was not firing persons who used contraceptives). What is it (except ,perhaps ,deference to the democratic process) that makes all seem to assume that even in this context, the burden on religion must yield to the secular burden? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of [EMAIL PROTECTED] Sent: Tuesday, March 02, 2004 8:49 AM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public
Re: Locke v. Davey and expanded free exercise rights
To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I think Alan has made an interesting point here. The footnote states that at least in some respects, [Washington's] constitution provides greater protection of relgious liberties than the Free Exercise Clause. First, I don't think it is unconstitutional for state constitutions, anymore than the First Amendment, to require strict scrutiny in certain circumstances, so long as there is an establishment principle at work as well. The goal is a balance of power between church and state, and that can be achieved via different calculations. There is no state that provides strict scrutiny in every circumstance under its state constitution, just as there was never a rule at the Supreme Court that strict scrutiny applied in every circumstance. It is beyond cavil that such a regime is intolerable. This footnote would have worried me had it spoken approvingly of a regime in which every law affecting religious entities is subject to strict scrutiny. Second, the footnote is speaking to judicially crafted interpretations of the free exercise clause. It does not speak to the proper conditions for legislative accommodation. Proper legislative accommodation requires a weighing of the special privilege to avoid the law against the harm to the public interest. The sort of blind accommodation at the base of RFRA and RLUIPA made it impossible for members of Congress to engage in this calculus. The failure to consider the public interest and to only focus on the benefit to religion shows that the law has an improper purpose. Marci Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Moving away from Lukumi (which never carried as much of a punch for free exercise rights as some commentators have argued -- so the Court's limited reading of it is hardly a surprise)) and back to the Washington constitution and Locke. I am curious, Marci, if you think that Washington's interpretation of the free exercise provision of it's constitution violates the Establishment clause of the First Amendment -- for the same reasons that you believe that RLUIPA violates the Establishment Clause. And if so, does the Court's favorable comments about play in the joints and an expansive reading of state free exercise rights undercut your argument. Alan Brownstein UC Davis At 09:59 AM 2/27/2004 -0500, you wrote: My point is simply that the Court in Locke limits Lukumi to its facts--the presence of animus or hostility was a necessary trigger for strict scrutiny Animus and hostility were found in Lukumi not through legis history as much as the use of the term sacrifice in the law. Marci In a message dated 2/26/2004 5:10:30 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I am not clear about your argument. Are you saying that Rehnquist changed his mind (he joined Scalia’s opinion in Lukumi, objecting to any probing in to legislative motivation) and now favors precisely that kind of probing? In any event, I am not persuaded that the two cases easily “speak” to each other, give the extraordinary factual differences, which Rehnquist points out, of course, in Locke. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thursday, February 26, 2004 2:16 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights On the one hand, Alan is absolutely correct that the Court refers to expansive state constitutional rights. On the other hand, the Court dramatically narrows the usefulness of Lukumi in attacking laws for violation of the federal Free Exercise Clause. The argument that Lukumi's strict scrutiny applied simply because religion is mentioned, excluded, or treated differently in a law is defunct. Lukumi's rationale was narrowed to instances where there is animus and hostility to religion. The Court could not have said it more often. Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
I wonder, Alan, if you could play this out a bit for me. Locke v. Davey stands for the proposition that disestablishment principles support carving back on benefits to religious groups from an otherwise generally applicable scheme. At the same time, it says those disestablishment principles do not require a carveout for religious groups. RLUIPA is not on point, but maybe I'm missing something here. RLUIPA says that religious groups, and religious groups alone, get first class treatment in the land use process. That is a preference for religion that looks very different from the scheme the Court implicitly approves, which is a generally applicable scholarship plan that would include religion. Maybe if every other landowner were getting good treatment, and religious groups were just being brought up to their standards, one could say that RLUIPA looks like the scheme in Locke. But that is not in fact the situation in land use law. For nighbors with contiuous parcels in identically zoned areas, the religious landowner gets the RLUIPA tool to avoid the law, while the nonreligious landowner gets nothing beyond the existing law. As I say, though, I may not understand your question. With respect to expansive protection for free exercise in the states under land use law, no state provides uniform strict scrutiny in the land use context, and every state that tends toward stricter scrutiny has exceptions for the public good. Land use is, in many respects, an arena that is like no other arena. Regards, Marci I am curious, Marci, if you think that Washington's interpretation of the free exercise provision of it's constitution violates the Establishment clause of the First Amendment -- for the same reasons that you believe that RLUIPA violates the Establishment Clause. And if so, does the Court's favorable comments about play in the joints and an expansive reading of state free exercise rights undercut your argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
To the extent that the Establishment Clause today commands some sort of parallelism between the review of laws that favor and disfavor religion--and nothing in Davey appears to me to suggest a retreat from this principle--the opinion would seem to lower the bar for both types. The former requirement to neither favor nor disfavor religion now apparently has a mildness exception. Since the Court supposedly rejected the EC claim for the same reasons it rejected the FE claim, it appears that the new standard would uphold legislative disfavor that is of a far milder kind. Whether it is ones view that RLUIPA was born from accommodationist concerns or a desire to impose pre-Smith law, it can hardly be said that Congress was acting out of hostility to other landowners. If anyone was being targeted, it would be the municipal bodies that burden religious exercise. It is certainly true that the nonreligious landowner gets nothing out of RLUIPA (other than sharing in the same protections for his/her own place of worship, of course) but even if this can be called disfavor, it has to be milder than that faced by theology students that were at least targeted in some fashion. Roman -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 01, 2004 2:06 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights I wonder, Alan, if you could play this out a bit for me. Locke v. Davey stands for the proposition that disestablishment principles support carving back on benefits to religious groups from an otherwise generally applicable scheme. At the same time, it says those disestablishment principles do not require a carveout for religious groups. RLUIPA is not on point, but maybe I'm missing something here. RLUIPA says that religious groups, and religious groups alone, get first class treatment in the land use process. That is a preference for religion that looks very different from the scheme the Court implicitly approves, which is a generally applicable scholarship plan that would include religion. Maybe if every other landowner were getting good treatment, and religious groups were just being brought up to their standards, one could say that RLUIPA looks like the scheme in Locke. But that is not in fact the situation in land use law. For nighbors with contiuous parcels in identically zoned areas, the religious landowner gets the RLUIPA tool to avoid the law, while the nonreligious landowner gets nothing beyond the existing law. As I say, though, I may not understand your question. With respect to expansive protection for free exercise in the states under land use law, no state provides uniform strict scrutiny in the land use context, and every state that tends toward stricter scrutiny has exceptions for the public good. Land use is, in many respects, an arena that is like no other arena. Regards, Marci I am curious, Marci, if you think that Washington's interpretation of the free exercise provision of it's constitution violates the Establishment clause of the First Amendment -- for the same reasons that you believe that RLUIPA violates the Establishment Clause. And if so, does the Court's favorable comments about play in the joints and an expansive reading of state free exercise rights undercut your argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
1,Congress was not clueless because the issue of impacts on communities was discussed in hearings Besides, many members of Congress started their political careers on zoning boards. 2.It is not true that Congress only foray into land use law is RLUIPA. The Fair Housing act makes substantial inroads into zoning, as to the regulations of cell towers and airports to name just two. 3.Contrary to Marcis claim here and elsewhere RLUIPA does automatically favor religious land use over homeowners. But it does not follow as Marci and several communities have argued in opposition to churches locating in residential neighborhoods that there is a constitutional right to park in front of ones home. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 01, 2004 3:54 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights Congress was not even thinking of other landowners, because it is clueless when it comes to land use law. Its only foray into land use has been to enforce equality norms in the federal housing laws, not to meddle with setback, traffic, and height restrictions. But Congress, like anyone else, is responsible for the natural consequences of its actions, so its demotion of all landowners to second-class citizen status as compared to religious landowners looks like hostility to me (and thousands, if not millions, of homeowners across the country). To call the destruction of the residential quality of a neighborhood mild seems a bit of an understatement, unless, of course, one believes that the Constitution has a built-in preference for religious observance over family home ownership. I don't. It is true, of course, that RLUIPA targets local government by directly regulating local law, but that simply goes to show its severe violation of federalism, a topic beyond the scope of this listserv. Marci Since the Court supposedly rejected the EC claim for the same reasons it rejected the FE claim, it appears that the new standard would uphold legislative disfavor that is of a far milder kind. Whether it is ones view that RLUIPA was born from accommodationist concerns or a desire to impose pre-Smith law, it can hardly be said that Congress was acting out of hostility to other landowners. If anyone was being targeted, it would be the municipal bodies that burden religious exercise. It is certainly true that the nonreligious landowner gets nothing out of RLUIPA (other than sharing in the same protections for his/her own place of worship, of course) but even if this can be called disfavor, it has to be milder than that faced by theology students that were at least targeted in some fashion. Roman ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
In a message dated 3/1/2004 4:42:08 PM Eastern Standard Time, [EMAIL PROTECTED] writes: 1,Congress was not clueless because the issue of impacts on communities was discussed in hearings Besides, many members of Congress started their political careers on zoning boards. I missed that when I read the entirety of the RLUIPA record. What impacts were discussed, Marc? I don't remember a single reference to the destruction of the residential quality of a neighborhood. If you could give the exact cite, I would be educated and appreciative. 2.It is not true that Congress only foray into land use law is RLUIPA. The Fair Housing act makes substantial inroads into zoning, as to the regulations of cell towers and airports to name just two. As I stated, the Fair Housing Act involves discrimination, not whether a certain amount of traffic will be permissible at a certain location. The cell tower regulations are under attack. I'm not sure what aspect of airports, which obviously involve interstate commerce, you are referring to. 3.Contrary to Marcis claim here and elsewhere RLUIPA does automatically favor religious land use over homeowners. But it does not follow as Marci and several communities have argued in opposition to churches locating in residential neighborhoods that there is a constitutional right to park in front of ones home. I have yet to meet a homeowner who demands a right to park in front of their home, but they do like to get out of their driveways. They also like to have their trash picked up, which cannot happen when the religious group brings in large numbers of cars that park up the streets and make it impossible for the trash trucks to get to the trash bins. In any event, the attack on residential neighborhoods under RLUIPA goes far beyond parking issues. Traffic, aesthetics, quality of life, property values, and safety, are frequently implicated. I know that religious groups, or at least their lawyers, have nothing but contempt for aesthetics, but private homeowners feel rather differently. There was a thread during the RLPA hearings that somehow RLUIPA would not implicate neighborhoods because religious groups can never find plots big enough. As an empirical matter, its worst and most intense impact has been on residential neighborhoods. Marci Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Had O'Connor written the opinion, I would have agreed with you, because she looks at cases case-by-case. But that is not the Chief's style. He has laid out those instances in which strict scrutiny applies, and all the examples he gives, he gives under the heading of hostility/animus. He is very careful in the way he structures paragraphs, points, etc., and the way he has grouped his discussion points points strongly to a general rule that the free exercise clause does not trigger strict scrutiny unless there is some animus (he is interpreting Sherbert as animus, because there were exemptions for secular reasons, but specifically not for religious reasons). This is so consistent with Smith and Boerne, I don't think one is overreading it to say that the possible interpretations of Lukumi have been reduced. Of course, he is distinguishing Lukumi as well. Marci Maybe all that the Court did was to distinguish Lukumi on its facts with far fewer doctrinal consequences than would follow from limiting Lukumi. The cases are so different, in terms of their facts, that I think that distinguishing rather than limiting is what happened. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
Given the ideologically diverse make-up of the majority in Locke v. Davey, I am leery of reaching large conclusions about the supposed meaning of a case that is factually inapposite. And I still dont understand why the one paragraph that addresses Lukumi (I think that there was just one) has the meaning that you ascribe to it. Your reading requires a kind of agreement among the seven justices that strikes me as very unlikely. It is easier, again, just to say that on the facts, Lukumi is inapposite, because that is clearly true, and all seven could easily agree on that narrow point. And there still remains the little matter of the Scalia-Rehnquist dissent in Lukumi. What I dont understand is why the moderates would agree to cutting back Lukumi, when they dont like Smith! (Recall, also, that moderates can speak up when the conservative author of an opinion goes a bit too far, as was the case in Grutter. We dont hear a peep from the moderates in Locke. I think that that is an important consideration in trying to make sense of Rehnquists opinion.) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] Sent: Monday, March 01, 2004 4:56 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights Had O'Connor written the opinion, I would have agreed with you, because she looks at cases case-by-case. But that is not the Chief's style. He has laid out those instances in which strict scrutiny applies, and all the examples he gives, he gives under the heading of hostility/animus. He is very careful in the way he structures paragraphs, points, etc., and the way he has grouped his discussion points points strongly to a general rule that the free exercise clause does not trigger strict scrutiny unless there is some animus (he is interpreting Sherbert as animus, because there were exemptions for secular reasons, but specifically not for religious reasons). This is so consistent with Smith and Boerne, I don't think one is overreading it to say that the possible interpretations of Lukumi have been reduced. Of course, he is distinguishing Lukumi as well. Marci Maybe all that the Court did was to distinguish Lukumi on its facts with far fewer doctrinal consequences than would follow from limiting Lukumi. The cases are so different, in terms of their facts, that I think that distinguishing rather than limiting is what happened. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
Sorry for not being clearer, Marci. I'm not focusing on the holding in Locke but only on the note about expansive free exercise rights under the Washington constitution. I thought from some earlier posts quite a while back that you believed that religious exemptions that were not limited to specific problems violated the Establishment Clause -- and that this was one of your concerns with RFRA and RLUIPA. These laws created across the board exemptions, not a situation specific exemption. They applied to too many different activities and circumstances. (I may have gotten your position on this wrong. Obviously, if I did the rest of my question will not make a lot of sense.) State constitutions that provide broader and more rigorous protection for free exercise rights than the federal constitution seem to me to accept an across the board standard for religious exemptions. They typically apply a rule that requires some form of rigorous review to laws or individual assessments that substantially burden the exercise of religion. I would assume that if a state statute that creates an across the board exemption violates the Establishment Clause, a state constitutional provision that is interpreted to apply a similar exemption standard would also violate the Establishment Clause. I read Locke as commenting favorably on the expansive protection provided by the Washington constitution's free exercise clause. The Court seemed to suggest that play in the joints applied to both free exercise and establishment clause values and that the fact that the state provided greater protection under the state's free exercise clause than the federal constitution required helped to justify the Court's establishment clause holding. I don't suggest that these state constitutional interpretations are identical to RFRA or RLUIPA. Merely that they apply broadly to laws or individual assessments that substantially burden the exercise of religion. So my question is -- Do you believe that free exercise provisions in state constitutions that provide more rigorous protection than Smith and apply generally and broadly violate the Establishment Clause -- and if so, does the Court's language in Locke undercut such an argument. Alan Brownstein UC Davis At 02:05 PM 3/1/2004 -0500, you wrote: I wonder, Alan, if you could play this out a bit for me. Locke v. Davey stands for the proposition that disestablishment principles support carving back on benefits to religious groups from an otherwise generally applicable scheme. At the same time, it says those disestablishment principles do not require a carveout for religious groups. RLUIPA is not on point, but maybe I'm missing something here. RLUIPA says that religious groups, and religious groups alone, get first class treatment in the land use process. That is a preference for religion that looks very different from the scheme the Court implicitly approves, which is a generally applicable scholarship plan that would include religion. Maybe if every other landowner were getting good treatment, and religious groups were just being brought up to their standards, one could say that RLUIPA looks like the scheme in Locke. But that is not in fact the situation in land use law. For nighbors with contiuous parcels in identically zoned areas, the religious landowner gets the RLUIPA tool to avoid the law, while the nonreligious landowner gets nothing beyond the existing law. As I say, though, I may not understand your question. With respect to expansive protection for free exercise in the states under land use law, no state provides uniform strict scrutiny in the land use context, and every state that tends toward stricter scrutiny has exceptions for the public good. Land use is, in many respects, an arena that is like no other arena. Regards, Marci I am curious, Marci, if you think that Washington's interpretation of the free exercise provision of it's constitution violates the Establishment clause of the First Amendment -- for the same reasons that you believe that RLUIPA violates the Establishment Clause. And if so, does the Court's favorable comments about play in the joints and an expansive reading of state free exercise rights undercut your argument. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
My point is simply that the Court in Locke limits Lukumi to its facts--the presence of animus or hostility was a necessary trigger for strict scrutiny Animus and hostility were found in Lukumi not through legis history as much as the use of the term "sacrifice" in the law. Marci In a message dated 2/26/2004 5:10:30 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I am not clear about your argument. Are you saying that Rehnquist changed his mind (he joined Scalias opinion in Lukumi, objecting to any probing in to legislative motivation) and now favors precisely that kind of probing? In any event, I am not persuaded that the two cases easily speak to each other, give the extraordinary factual differences, which Rehnquist points out, of course, in Locke. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thursday, February 26, 2004 2:16 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights On the one hand, Alan is absolutely correct that the Court refers to expansive state constitutional rights. On the other hand, the Court dramatically narrows the usefulness of Lukumi in attacking laws for violation of the federal Free Exercise Clause. The argument that Lukumi's strict scrutiny applied simply because religion is mentioned, excluded, or treated differently in a law is defunct. Lukumi's rationale was narrowed to instances where there is "animus" and "hostility" to religion. The Court could not have said it more often. Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Locke v. Davey and expanded free exercise rights
Defunct? Does Marci seriously think that the Supreme Court would uphold a law that allowed the slaughter of animals for all but religious reasons? What in Lukumi gives any credence to that idea? Or what after Lukumi suggests otherwise? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED] Sent: Thursday, February 26, 2004 2:16 PM To: [EMAIL PROTECTED] Subject: Re: Locke v. Davey and expanded free exercise rights On the one hand, Alan is absolutely correct that the Court refers to expansive state constitutional rights. On the other hand, the Court dramatically narrows the usefulness of Lukumi in attacking laws for violation of the federal Free Exercise Clause. The argument that Lukumi's strict scrutiny applied simply because religion is mentioned, excluded, or treated differently in a law is defunct. Lukumi's rationale was narrowed to instances where there is animus and hostility to religion. The Court could not have said it more often. Marci In a message dated 2/26/2004 1:31:32 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I was particularly pleased with footnote 8 in the majority opinion that pointed out that Washington provides greater free exercise protection than the federal constitution. Conceptually, this resonates with the argument that there an important connection or equilibrium in interpreting the religion clauses such that the rigorous enforcement of one reinforces and justifies the rigorous enforcement of the other. Pragmatically, it supports the rhetorical argument that a state that uses the play in the joints it is allowed to impose more restrictions on the funding of religious institutions and activities than the federal constitution requires ought to provide comparably greater protection to religious institutions and activities on the free exercise side of the constitutional equation as well. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey and expanded free exercise rights
ition, just as few if any title X recipients in Rust would have the wherewithal or desire to set up a separate abortion-speech clinic -- and just as no divinity majors in Washington are about to attend two schools in order to receive a Promise Scholarship. But in cases where the state does not even offer this unpalatable choice, the plaintiff might have a plausible unconstitutional conditions claim. - Original Message ----- From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Thursday, February 26, 2004 2:15 PM Subject: Re: Locke v. Davey and expanded free exercise rights On the one hand, Alan is absolutely correct that the Court refers to expansive state constitutional rights. On the other hand, the Court dramatically narrows the usefulness of Lukumi in attacking laws for violation of the federal Free Exercise Clause. The argument that Lukumi's strict scrutiny applied simply because religion is mentioned, excluded, or treated differently in a law is defunct. Lukumi's rationale was narrowed to instances where there is "animus" and "hostility" to religion. The Court could not have said it more often. Marci In a message dated 2/26/2004 1:31:32 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I was particularly pleased with footnote 8 in the majority opinion that pointed out that Washington provides greater free exercise protection than the federal constitution. Conceptually, this resonates with the argument that there an important connection or equilibrium in interpreting the religion clauses such that the rigorous enforcement of one reinforces and justifies the rigorous enforcement of the other. Pragmatically, it supports the rhetorical argument that a state that uses the play in the joints it is allowed to impose more restrictions on the funding of religious institutions and activities than the federal constitution requires ought to provide comparably greater protection to religious institutions and activities on the free exercise side of the constitutional equation as well.Alan BrownsteinUC Davis ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
