Re: Locke v. Davey and expanded free exercise rights

[Brian Landsberg]

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 cl

Re: Locke v. Davey and expanded free exercise rights

[Richard Dougherty]

holic 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
> > &

Re: Locke v. Davey and expanded free exercise rights

[A.E. Brownstein]

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

Re: Locke v. Davey and expanded free exercise rights

[Richard Dougherty]

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

Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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

 



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To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
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RE: Locke v. Davey and expanded free exercise rights

[Brian Landsberg]

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.
S

RE: Locke v. Davey and expanded free exercise rights

[AJCONGRESS]

 

 

-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





 






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RE: Locke v. Davey and expanded free exercise rights

[AJCONGRESS]

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 un

Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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




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Re: Locke v. Davey and expanded free exercise rights

[A.E. Brownstein]

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


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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

In a message dated 3/1/2004 6:33:40 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

As Marc notes, Congress has often legislated in the land use context, including the ADA, the CZMA, various environmental statutes such as the ESA and NEPA, and the Historic Preservation Act.  Although laws like the FHA and ADA were also passionately opposed by local governments, they have all eventually been implemented successfully by the same and have become part of the land-use culture.

  

Roman

  


And all are being challenged on federalism grounds...  I wouldn't feel too confident about RLUIPA simply because it has other federal land use bedfellows.  In the end, though, RLUIPA is the only federal law that goes to local land use itself, the specific questions that are peculiarly local: impact of use, including height, aesthetics, parking, traffic, safety, etc., etc.  Of all the examples you list, none displaces local control over community development in quite the same way.
  
And I will stick to my original premise that those in Congress and their staff are clueless about the specifics of land use.  The same can be said for the federal courts who have never before been called into these issues before. In one oral argument, after 2 hours of argument by both sides, the judge asked how to apply the conditional use permit procedures.  The ENTIRE argument had been premised on understanding that particular point.  I think that is one of the reasons that land use RLUIPA cases are moving far more slowly through the courts than the prison cases. 


Marci
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RE: Locke v. Davey and expanded free exercise rights

[Roman Storzer]

Describing RLUIPA as destruction of residential
quality of neighborhoods is, at the very least, a matter of perspective.  It
could certainly be argued that the existence of houses of worship enhances
community life, and for every case involving the “horrors” of a megachurch that
are referred to, there are a dozen more concerning much more trivial interests
like the (real-life) example of opposition to a church’s addition for
handicapped accessibility because such addition would “block the morning sun.” 
But to stay within the topic, any such possible effects of RLUIPA now seems
outside of the scope of relevant evidence for an Establishment Clause claim
under Davey, especially given the Court’s about-face on the issue of
legislative intent.  If it meant what it said when it rejected the EC/”disfavoring
religion” claim for the same reasons as the FE claim, then a “mild” intentional
disfavor may be acceptable, and an unintentional negative effect would seem to
be wholly irrelevant.  And I’ve seen nothing in RLUIPA’s legislative record
that “suggests animus toward [nonreligious landowners]”; there is certainly
less than in Davey.

 

As Marc notes, Congress has often legislated in the land use
context, including the ADA, the CZMA, various
environmental statutes such as the ESA and NEPA, and the Historic Preservation
Act.  Although laws like the FHA and ADA were also passionately
opposed by local governments, they have all eventually been implemented
successfully by the same and have become part of the land-use culture.

 

Roman

 

-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 one’s 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










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RE: Locke v. Davey and expanded free exercise rights

[Newsom Michael]

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 don’t 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
don’t understand is why the moderates would agree to cutting back Lukumi, when they don’t 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 don’t hear a peep from the moderates in Locke.  I think that that is an important
consideration in trying to make sense of Rehnquist’s 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.  













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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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 âlimitingâ Lukumi.  The cases are so different, in terms of their facts, that I think that âdistinguishingâ rather than âlimitingâ is what happened.  

 



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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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 Congressâ 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 Marciâs 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 oneâs 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



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RE: Locke v. Davey and expanded free exercise rights

[AJCONGRESS]

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 Congressâ 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 Marciâs 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 oneâs 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 âof a far milder kind.â  Whether it is oneâs 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 âthe
nonreligious landowner gets nothingâ 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 âmilderâ than that faced by theology
students that were at least targeted in some fashion.

  

Roman












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RE: Locke v. Davey and expanded free exercise rights

[Newsom Michael]

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.  

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Friday, February 27, 2004
10:00 AM
To: [EMAIL PROTECTED]
Subject: 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 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  


















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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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 âof a far milder kind.â  Whether it is oneâs 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 âthe nonreligious landowner gets nothingâ 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 âmilderâ than that faced by theology students that were at least targeted in some fashion.

  

Roman



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RE: Locke v. Davey and expanded free exercise rights

[Roman Storzer]

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 one’s 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

 






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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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



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Re: Locke v. Davey and expanded free exercise rights

[A.E. Brownstein]

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









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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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 Scaliaâs 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 âspeakâ 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  





 




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Re: Locke v. Davey and expanded free exercise rights

[Marty Lederman]

  Of course, few sectarian schools would agree to such a 
condition, 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
  
  

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RE: Locke v. Davey and expanded free exercise rights

[AJCONGRESS]

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



 






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RE: Locke v. Davey and expanded free exercise rights

[Newsom Michael]

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  





 






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Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

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


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RE: Locke v. Davey and expanded free exercise rights

[Skip L'Heureux]

The reference to Washington's Constitution providing greater free exercise
protection is from the decision in First Covenant Church v. Seattle, a case
in which the State Supreme Court held (for a second time) that the unwanted
landmark designation of a church building violated the Church's free
exercise rights. The US Supreme Court sent the case back to the State
Supreme Court a few weeks after the Smith decision in 1990 for
reconsideration in light of Smith. A year after reargument, the Washington
State Supreme Court issued an opinion, the first 2/3 of which directly
challenged the Court's interpretation of the First Amendment in its Smith
decision, and then went on for the balance to anchor its own decision in the
State Constitution as providing greater protection.

It could be that the USSC has engaged in a delayed "got you back."


[EMAIL PROTECTED] 
[Also: [EMAIL PROTECTED]   ]

Visit our Web site at http://www.QueensChurches.org/

Rev. N. J. L'Heureux, Jr.
Executive Director
Queens Federation of Churches
86-17 105th Street
Richmond Hill, New York 11418-1597
Voice (718) 847-6764
FAX (718) 847-7392




-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of A.E. Brownstein
Sent: Thursday, February 26, 2004 1:30 PM
To: Law & Religion issues for Law Academics
Subject: Locke v. Davey and expanded free exercise rights


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

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