RE: Religious exemptions in ND
Sorry, I sent this yesterday, but it bounced accidentally—so pardon the lateness: “My point is simply this: when an individual (or group; e.g., a religiously affiliated organization) engages in public activity, his/her interests must be weighed against the interests of the persons they harm. Isn't that fair? Isn't that the aim of Smith?” That Is fair. But that’s not the aim of Smith. There’s no weighing with Smith. There is weighing with RFRA and state RFRAs. And in those cases, I think the weighing has been consistent with courts taking seriously the interests on both sides of the ledger. I think government-sponsored religious symbols and prayers are out. I would have dissented in Van Orden and in Marsh. On those issues, I am squarely with you. I think it’s all the same principle. The government leaves religion alone, so private individuals and groups can practice or not practice how they want. I also agree on the horse. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Thursday, June 21, 2012 12:16 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, you state: RFRA and state RFRAs protect the freedom of individuals and voluntary groups. That's the theory and that's the problem from a secularists view. They protect one set of individuals -- perhaps insulate might be a better term -- from the harm they cause others. Taken to an extreme, perhaps, RFRAs read like a license to discriminate in ways society on occasion deems inappropriate via law, regulation or ordinance. My point is simply this: when an individual (or group; e.g., a religiously affiliated organization) engages in public activity, his/her interests must be weighed against the interests of the persons they harm. Isn't that fair? Isn't that the aim of Smith? Are government sponsored religious symbols and prayers out (as you suggest)? What about the Fraternal Order of Eagles Ten Commandments monument in Austin, Texas (which I consider to be a Supreme Scandal)? Or the 11th Circuit decision holding that sectarian prayers at council meetings are permissible. If Scalia and Thomas clones are appointed to the Bench, we could see, well, let me just say a new era in Establishment Clause jurisprudence. My questions were largely rhetorical. I think we've beaten a dead horse in the defeated ND Religious Liberty Restoration Amendment proposal. Bob Ritter ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Chris, you state: RFRA and state RFRAs protect the freedom of individuals and voluntary groups. That's the theory and that's the problem from a secularists view. They protect one set of individuals -- perhaps insulate might be a better term -- from the harm they cause others. Taken to an extreme, perhaps, RFRAs read like a license to discriminate in ways society on occasion deems inappropriate via law, regulation or ordinance. My point is simply this: when an individual (or group; e.g., a religiously affiliated organization) engages in public activity, his/her interests must be weighed against the interests of the persons they harm. Isn't that fair? Isn't that the aim of Smith? Are government sponsored religious symbols and prayers out (as you suggest)? What about the Fraternal Order of Eagles Ten Commandments monument in Austin, Texas (which I consider to be a Supreme Scandal)? Or the 11th Circuit decision holding that sectarian prayers at council meetings are permissible. If Scalia and Thomas clones are appointed to the Bench, we could see, well, let me just say a new era in Establishment Clause jurisprudence. My questions were largely rhetorical. I think we've beaten a dead horse in the defeated ND Religious Liberty Restoration Amendment proposal. Bob Ritter On June 19, 2012 at 10:07 AM Christopher Lund l...@wayne.edu wrote: I think we agree. Let me say that I strongly support RFRA and state RFRAs, and I don’t think they change the issues you talk about in the first paragraph at all. Government-sponsored religious prayers, symbols, and teachings are still out. RFRA and the state RFRAs explicitly state that they don’t change the Establishment Clause (and they couldn’t even if they tried—it would just make them unconstitutional). RFRA and state RFRAs protect the freedom of individuals and voluntary groups, not the state. In the second paragraph, you point out how the Establishment Clause protects people from the psychological harms in Schempp and Trunk (the pending case), but not in Elane Photography. I think the explanation lies in state action. The state rejecting your religious beliefs or your sexual orientation is a deep harm, and totally unnecessary to governance. Even without coercion, that should be actionable (I think). But individual people rejecting your religious beliefs or your sexual orientation is different. It’s still an insult and it’s still painful, but they are people with rights too. As for your final paragraph, I cheerfully submit that it’s all a mess, at least somewhat, and that the Court would probably agree. But has it ever been different? =) Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Monday, June 18, 2012 7:36 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, From the Religion Clause blog and the organizations that I belong to, it seems that most of the action is in government sponsored prayers (schools and city councils), crosses and other religious icons on public property and schools trying to teach the bible or crationism/ID/anti-evolution, with the kinds of concerns that I mentioned rare. So my fear of RFRA's, especially the simple burden ones, may border paranoia. On the other hand, the religious war between the Christian right and secularists -- while not raging -- is a bit warm. Which brings me to your comments in the last paragraph. Your comparison of the harm of pure insults (not protected) with the harm of (non-economic loss) discrimination on the basis of religion has a lot of truth to it -- both psychological harms. But the reality is (at least from my Atheistic perspective) that religious interests harms are also psychological (i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad cross case whose petition for cert is pending, or the student who wants to pass out candy canes with a Christian message, if it's not money, its hurt feelings by one side or the other. However, under current law, free speech insults are not actionable but unwelcome contact with a government sponsored prayer or religious symbol is. The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and Free Exercise Clause jurisprudence -- to the extent that those who are asserting the FEC rights are engaging in public services (i.e., as distinguished from acts in their home or in houses of worship) -- is getting messier. What's happened to the bright lines of bar exams questions? I have a good idea of what the religion clauses should mean, but I'm fuzzy what they mean to nine Justices. Best wishes, Bob On June 17, 2012 at 4:15 PM Christopher Lund l...@wayne.edu mailto:l...@wayne.edu wrote: Bob, I think you’re right that these are the kinds of hot-button controversies where
RE: Religious exemptions in ND
Well, I suppose sometimes it might be so. But I think that on balance ordinary legislation is easier to pass than a constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 3:52 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Would you agree that for political reasons it is sometimes easier to get a ballot initiative (even a constitutional one) passed than to get legislation with the same provisions passed? I think it is likely that the relative ease of passing legislation vs. passing a ballot measure will differ significantly from state to state, in particular between states that allow constitutional amendment by ballot initiative and those that do not, and between states that tend to be dominated by one party or the other and those that are not. And it is probably a lot easier to get 4% of the voters in North Dakota to sign on to a ballot initiative than it is to get 4% of the voters in California. In short, I don't think it makes sense to generalize here, and I understand your proposition below to be a generalization. Also, for what it's worth, I imagine it might take a good deal of money to get a particular law through a state legislature; the money flow is just less obvious. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, June 18, 2012 4:47 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND But I suspect the Texas Statutes includes many more than 400 statutes! Moreover, my sense is that many states that provide for initiative constitutional amendments also provide for initiative statutes, which are easier to put on the ballot than the amendments; that's certainly true in California. And if a legislature thinks a court decision interpreting a RFRA statute is wrong, it can correct it by just enacting a statute. If it thinks a court decision interpreting a state constitutional amendment is wrong, it needs to put a proposed amendment on the ballot, which (I believe) generally requires a greater majority of the vote in the legislature coupled with (in all states but Delaware) a vote of the people. And while constitutional amendments can be put on the ballot by initiative in many states (about half, if I recall correctly), that usually takes a good deal of money, something that often might not be available. So it seems to me that it is indeed generally a good deal easier to change a court decision handed down under a state statute than one handed down under a state constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder
RE: Religious exemptions in ND
I think we agree. Let me say that I strongly support RFRA and state RFRAs, and I don’t think they change the issues you talk about in the first paragraph at all. Government-sponsored religious prayers, symbols, and teachings are still out. RFRA and the state RFRAs explicitly state that they don’t change the Establishment Clause (and they couldn’t even if they tried—it would just make them unconstitutional). RFRA and state RFRAs protect the freedom of individuals and voluntary groups, not the state. In the second paragraph, you point out how the Establishment Clause protects people from the psychological harms in Schempp and Trunk (the pending case), but not in Elane Photography. I think the explanation lies in state action. The state rejecting your religious beliefs or your sexual orientation is a deep harm, and totally unnecessary to governance. Even without coercion, that should be actionable (I think). But individual people rejecting your religious beliefs or your sexual orientation is different. It’s still an insult and it’s still painful, but they are people with rights too. As for your final paragraph, I cheerfully submit that it’s all a mess, at least somewhat, and that the Court would probably agree. But has it ever been different? =) Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Monday, June 18, 2012 7:36 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, From the Religion Clause blog and the organizations that I belong to, it seems that most of the action is in government sponsored prayers (schools and city councils), crosses and other religious icons on public property and schools trying to teach the bible or crationism/ID/anti-evolution, with the kinds of concerns that I mentioned rare. So my fear of RFRA's, especially the simple burden ones, may border paranoia. On the other hand, the religious war between the Christian right and secularists -- while not raging -- is a bit warm. Which brings me to your comments in the last paragraph. Your comparison of the harm of pure insults (not protected) with the harm of (non-economic loss) discrimination on the basis of religion has a lot of truth to it -- both psychological harms. But the reality is (at least from my Atheistic perspective) that religious interests harms are also psychological (i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad cross case whose petition for cert is pending, or the student who wants to pass out candy canes with a Christian message, if it's not money, its hurt feelings by one side or the other. However, under current law, free speech insults are not actionable but unwelcome contact with a government sponsored prayer or religious symbol is. The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and Free Exercise Clause jurisprudence -- to the extent that those who are asserting the FEC rights are engaging in public services (i.e., as distinguished from acts in their home or in houses of worship) -- is getting messier. What's happened to the bright lines of bar exams questions? I have a good idea of what the religion clauses should mean, but I'm fuzzy what they mean to nine Justices. Best wishes, Bob On June 17, 2012 at 4:15 PM Christopher Lund l...@wayne.edu wrote: Bob, I think you’re right that these are the kinds of hot-button controversies where state RFRAs could realistically come into play. It’s not spousal abuse or men marrying 12 year old children, as some of the commercials talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/). Another point worth stressing here, I think, is that the situations you mention make up a large part of the discussion but a small fraction of the actual cases. Elane Photography is the only case like this I remember where the state RFRA claim was the ground of decision. I wish these cases weren’t driving the discussion, but that’s probably inevitable. Maybe we should just aim for state RFRAs with broad “civil rights laws” exceptions. (Texas’s RFRA has such an exception.) To get to your post, I’ve seen claims like #1-#3, though not #4. It seems to me like there could be a “burden” on religious liberty in those cases. Whether there’s a compelling interest will depend on the things that Eugene noted earlier. It would also depend on the facts of the cases. If the pharmacist refuses to dispense plan B but can turn over the job to a pharmacist who will, then a religious exemption seems sensible to me. If not, not. There are very real harms that are present in these cases, though they often aren’t economic harms. In Elane Photography, if I remember right, the lesbian couple sent the inquiry a year in advance of their wedding, and got a negative response from the religious photographer that same night
RE: Religious exemptions in ND
Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It’s also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed—and that has happened. Concerned with a pending suit by a Muslim to claim a drivers’ license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida’s RFRA. Judging by Florida’s reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs – but wouldn’t that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
But I suspect the Texas Statutes includes many more than 400 statutes! Moreover, my sense is that many states that provide for initiative constitutional amendments also provide for initiative statutes, which are easier to put on the ballot than the amendments; that's certainly true in California. And if a legislature thinks a court decision interpreting a RFRA statute is wrong, it can correct it by just enacting a statute. If it thinks a court decision interpreting a state constitutional amendment is wrong, it needs to put a proposed amendment on the ballot, which (I believe) generally requires a greater majority of the vote in the legislature coupled with (in all states but Delaware) a vote of the people. And while constitutional amendments can be put on the ballot by initiative in many states (about half, if I recall correctly), that usually takes a good deal of money, something that often might not be available. So it seems to me that it is indeed generally a good deal easier to change a court decision handed down under a state statute than one handed down under a state constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Would you agree that for political reasons it is sometimes easier to get a ballot initiative (even a constitutional one) passed than to get legislation with the same provisions passed? I think it is likely that the relative ease of passing legislation vs. passing a ballot measure will differ significantly from state to state, in particular between states that allow constitutional amendment by ballot initiative and those that do not, and between states that tend to be dominated by one party or the other and those that are not. And it is probably a lot easier to get 4% of the voters in North Dakota to sign on to a ballot initiative than it is to get 4% of the voters in California. In short, I don't think it makes sense to generalize here, and I understand your proposition below to be a generalization. Also, for what it's worth, I imagine it might take a good deal of money to get a particular law through a state legislature; the money flow is just less obvious. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, June 18, 2012 4:47 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND But I suspect the Texas Statutes includes many more than 400 statutes! Moreover, my sense is that many states that provide for initiative constitutional amendments also provide for initiative statutes, which are easier to put on the ballot than the amendments; that's certainly true in California. And if a legislature thinks a court decision interpreting a RFRA statute is wrong, it can correct it by just enacting a statute. If it thinks a court decision interpreting a state constitutional amendment is wrong, it needs to put a proposed amendment on the ballot, which (I believe) generally requires a greater majority of the vote in the legislature coupled with (in all states but Delaware) a vote of the people. And while constitutional amendments can be put on the ballot by initiative in many states (about half, if I recall correctly), that usually takes a good deal of money, something that often might not be available. So it seems to me that it is indeed generally a good deal easier to change a court decision handed down under a state statute than one handed down under a state constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list
RE: Religious exemptions in ND
Chris, From the Religion Clause blog and the organizations that I belong to, it seems that most of the action is in government sponsored prayers (schools and city councils), crosses and other religious icons on public property and schools trying to teach the bible or crationism/ID/anti-evolution, with the kinds of concerns that I mentioned rare. So my fear of RFRA's, especially the simple burden ones, may border paranoia. On the other hand, the religious war between the Christian right and secularists -- while not raging -- is a bit warm. Which brings me to your comments in the last paragraph. Your comparison of the harm of pure insults (not protected) with the harm of (non-economic loss) discrimination on the basis of religion has a lot of truth to it -- both psychological harms. But the reality is (at least from my Atheistic perspective) that religious interests harms are also psychological (i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad cross case whose petition for cert is pending, or the student who wants to pass out candy canes with a Christian message, if it's not money, its hurt feelings by one side or the other. However, under current law, free speech insults are not actionable but unwelcome contact with a government sponsored prayer or religious symbol is. The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and Free Exercise Clause jurisprudence -- to the extent that those who are asserting the FEC rights are engaging in public services (i.e., as distinguished from acts in their home or in houses of worship) -- is getting messier. What's happened to the bright lines of bar exams questions? I have a good idea of what the religion clauses should mean, but I'm fuzzy what they mean to nine Justices. Best wishes, Bob On June 17, 2012 at 4:15 PM Christopher Lund l...@wayne.edu wrote: Bob, I think you’re right that these are the kinds of hot-button controversies where state RFRAs could realistically come into play. It’s not spousal abuse or men marrying 12 year old children, as some of the commercials talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/ http://www.youtube.com/watch?v=14ngnqGR6e8/ ). Another point worth stressing here, I think, is that the situations you mention make up a large part of the discussion but a small fraction of the actual cases. Elane Photography is the only case like this I remember where the state RFRA claim was the ground of decision. I wish these cases weren’t driving the discussion, but that’s probably inevitable. Maybe we should just aim for state RFRAs with broad “civil rights laws” exceptions. (Texas’s RFRA has such an exception.) To get to your post, I’ve seen claims like #1-#3, though not #4. It seems to me like there could be a “burden” on religious liberty in those cases. Whether there’s a compelling interest will depend on the things that Eugene noted earlier. It would also depend on the facts of the cases. If the pharmacist refuses to dispense plan B but can turn over the job to a pharmacist who will, then a religious exemption seems sensible to me. If not, not. There are very real harms that are present in these cases, though they often aren’t economic harms. In Elane Photography, if I remember right, the lesbian couple sent the inquiry a year in advance of their wedding, and got a negative response from the religious photographer that same night. There’s no actual deprivation there—there’s no reliance, plenty of time to find a new photographer, and the religious photographer apparently wasn’t cheaper or better. But there’s tremendous expressive harm. It’s a terrible insult to be told that your relationship, your marriage, your love is illegitimate. Especially by someone who might be linked to the political groups that have denied your marriage legal recognition and worked for your marginalization. That’s a big part of what makes this insult really hurt. But the American tradition protects pure insults—the religious photographer who says, “I’ll do your wedding because the law compels me to, but I find your relationship morally wrong for the following reasons . . .” can’t be fined or prosecuted, I assume. So the rationale for exemption, I think, depends heavily on the idea that in such cases of mostly expressive harm, the government shouldn’t be overriding the religious interest. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Friday, June 15, 2012 3:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples
RE: Religious exemptions in ND
Bob, I think you’re right that these are the kinds of hot-button controversies where state RFRAs could realistically come into play. It’s not spousal abuse or men marrying 12 year old children, as some of the commercials talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/). Another point worth stressing here, I think, is that the situations you mention make up a large part of the discussion but a small fraction of the actual cases. Elane Photography is the only case like this I remember where the state RFRA claim was the ground of decision. I wish these cases weren’t driving the discussion, but that’s probably inevitable. Maybe we should just aim for state RFRAs with broad “civil rights laws” exceptions. (Texas’s RFRA has such an exception.) To get to your post, I’ve seen claims like #1-#3, though not #4. It seems to me like there could be a “burden” on religious liberty in those cases. Whether there’s a compelling interest will depend on the things that Eugene noted earlier. It would also depend on the facts of the cases. If the pharmacist refuses to dispense plan B but can turn over the job to a pharmacist who will, then a religious exemption seems sensible to me. If not, not. There are very real harms that are present in these cases, though they often aren’t economic harms. In Elane Photography, if I remember right, the lesbian couple sent the inquiry a year in advance of their wedding, and got a negative response from the religious photographer that same night. There’s no actual deprivation there—there’s no reliance, plenty of time to find a new photographer, and the religious photographer apparently wasn’t cheaper or better. But there’s tremendous expressive harm. It’s a terrible insult to be told that your relationship, your marriage, your love is illegitimate. Especially by someone who might be linked to the political groups that have denied your marriage legal recognition and worked for your marginalization. That’s a big part of what makes this insult really hurt. But the American tradition protects pure insults—the religious photographer who says, “I’ll do your wedding because the law compels me to, but I find your relationship morally wrong for the following reasons . . .” can’t be fined or prosecuted, I assume. So the rationale for exemption, I think, depends heavily on the idea that in such cases of mostly expressive harm, the government shouldn’t be overriding the religious interest. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Friday, June 15, 2012 3:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a compelling governmental interest than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM Christopher Lund l...@wayne.edu wrote: Obviously the sexual abuse of children is tragic and criminal. But I still am not getting how state RFRAs have protected it or encouraged it. State RFRA cases are more boring than those opposed to Measure 3 might think. Plaintiffs generally lose their claims; they sometimes win, but they have not won anything remotely like what NARAL was fearing. (In that South Dakota piece—which is a bit dated now—I slog through the cases and provide citations, to the extent people are interested.) I counted somewhere around 25 Florida state RFRA cases, for example. Of those 25, plaintiffs won 1 on state RFRA grounds. That case involved a church that wanted to feed the homeless in a public park, despite a city rule saying that parks could not be used for social-service purposes. The church didn’t win the right to use the park of its choosing, but the trial judge enjoined the city to let them use some park at some time. The case is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001). Of course, plaintiffs sometimes ask for things they can’t possibly get under state RFRAs—the right to use marijuana while driving, for example, keeps coming up. But that’s a frivolous claim by a desperate criminal defendant, and it simply loses. State RFRAs have been asserted as defenses in some of the sex abuse cases. But usually such claims don’t even get separate analysis, and they certainly don’t win
Re: Religious exemptions in ND
The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci On Jun 14, 2012, at 11:34 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use “burden” instead of “substantial burden” in their state RFRAs. Rhode Island, New Mexico, and Missouri speak of “restrictions on religious liberty.” But I really don’t know how much the difference in language ends up mattering. Connecticut is a “burden” state, like North Dakota would have been. But the lower courts in Connecticut have interpreted Connecticut’s RFRA to be equivalent to the standard laid out in Employment Division v. Smith. It’s hard to see how that is even possible, given what state RFRAs were designed to do. But there it is. My South Dakota piece (which Doug referred to earlier) provides the details. Given all this, it’s hard for me to understand these fears of dramatic overenforcement. Even with explicit authorization from state legislatures, we can’t even seem to get back to Sherbert/Yoder—and it’s not as if the Sherbert/Yoder regime led to the horrible things that NARAL was fearing. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer Sent: Thursday, June 14, 2012 9:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com stor...@storzerandgreene.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach
Re: Religious exemptions in ND
Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc Stern ste...@ajc.org To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu; 'lawyer2...@aol.com' lawyer2...@aol.com Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large
RE: Religious exemptions in ND
May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Friday, June 15, 2012 9:26 AM To: religionlaw@lists.ucla.edu; lawyer2...@aol.com Subject: Re: Religious exemptions in ND Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marc Stern ste...@ajc.org To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu; 'lawyer2...@aol.com' lawyer2...@aol.com Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.commailto:hamilto...@aol.com [mailto:hamilto...@aol.commailto:hamilto...@aol.com?] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.commailto:lawyer2...@aol.com lawyer2...@aol.commailto:lawyer2...@aol.com
RE: Religious exemptions in ND
That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the churchs liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had actual knowledge and made an official decision not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 9:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justiceso even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Marc: It seems to me that state RFRAs are aimed at protecting religious observers and religious institutions more than at least many other social interests. Conversely, as I understand the church liability cases, plaintiffs usually aim to simply apply normal negligent hiring/supervision/retention law to churches, just as it would apply to (say) secular private schools, secular youth organizations, secular day care centers, and so on. To be sure, as Doug pointed out, state and local governments often are treated better than all these private institutions, under sovereign-immunity-ish principles. But whether that better treatment or not is right, it is justified by the sense that taxpayer money needs to be specially protected. Why should religious institutions be given more protection against liability than other private organizations? Eugene Marc Stern writes: Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Public schools should also be held to the same standard as any private institution and it should be child-protective Marci On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the church’s liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had “actual knowledge” and made “an official decision” not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 9:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice—so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Thanks. Seems like we are arguing BIG principles that, actually everyone agrees with, when the work that needs to be done is in the details. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Ouch. This was obviously just meant for EV. On Friday afternoons, one should hesitate before hitting the send button. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Thanks. Seems like we are arguing BIG principles that, actually everyone agrees with, when the work that needs to be done is in the details. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity - and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons - it does seem to facilitate religious groups' failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
But as I understand it, some states – though a minority – do indeed protect churches from negligent supervision/retention/hiring liability; and since generally speaking respondeat superior is usually unavailable in such cases, the effect is indeed an immunity of churches from liability for this particular sort of abuse. (I agree that this is hard to lay at the door of RFRAs, since the immunity has generally been recognized under the non-entanglement doctrine.) In any case, it seems to me that these concrete discussions of what the law does and does not authorize, and which law does so, are more helpful than snippy one-liners from either side. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 10:57 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.commailto:lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others
Re: Religious exemptions in ND
I think Mr. Clark's statement and apparent inability to see the potential for mischief of RFRA is troubling and supportive of Prof. Hamilton's point. As a former litigator, I get the sense that some on this list are too dismissive of the impact of making claims that ultimately may fail, but which increase delays and costs in litigation -- sometimes substantially -- a problem particularly where child abuse is possible. We are deep in an accommodationist model now where the religious liberty of adherents is generally being given greater attention and solicitude than the equality interests and other interests (including health and safety) of other affected people. As Prof. Volokh and others have said, we are not dealing with just abstract issues nor are we dealing with just one constitutional value. Ignoring the existence of abusive sects and their attempts to use free exercise and RFRA as a shield does not advance the discussion. These cases exist. The existence of RFRA and free exercise does embolden some. Few. But some. My judgment is different from Prof. Hamilton's but I don't dispute her data and respect her making the contrary judgment on the same facts. Steve -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Sometimes you have to play a long time to be able to play like yourself. Miles Davis ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Agreed --Don Clark In a message dated 6/15/2012 1:03:29 P.M. Central Daylight Time, vol...@law.ucla.edu writes: In any case, it seems to me that these concrete discussions of what the law does and does not authorize, and which law does so, are more helpful than snippy one-liners from either side. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
That is an inaccurate analysis of my last post -- The attempts to treat these issues as de minimis are wrong. Read my cert petition and the Redwing case out of Tennessee I don't in any way back off of my statement that rfras open the door to more child sex abuse and less deterrence. They don't stand alone but they do. Child safety should be excluded from all such laws. Safe to say they are unlikely to be passed anyway at this point because gay rights and women's rights groups have come to understand they are adverse to their interests as well. The danger of the RFRA as I have stated before is its blanket blind approach. It hides the actual agendas of those who seek them. Far better for the vulnerable that exemptions be publicly debated. Marci On Jun 15, 2012, at 1:57 PM, lawyer2...@aol.com wrote: Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read
Re: Religious exemptions in ND
I think that public schools should be held to, if anything, a HIGHER standard than the church. After all, children are REQUIRED to attend public school; attending church is optional. But I also think that I should be rich and famous. Still waiting for it to happen. Lisa On 6/15/2012 10:29 AM, Marci Hamilton wrote: Public schools should also be held to the same standard as any private institution and it should be child-protective Marci On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the church's liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had actual knowledge and made an official decision not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:*religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Graber, Mark *Sent:* Friday, June 15, 2012 9:46 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice---so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu mailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you
RE: Religious exemptions in ND
Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a compelling governmental interest than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM Christopher Lund l...@wayne.edu wrote: Obviously the sexual abuse of children is tragic and criminal. But I still am not getting how state RFRAs have protected it or encouraged it. State RFRA cases are more boring than those opposed to Measure 3 might think. Plaintiffs generally lose their claims; they sometimes win, but they have not won anything remotely like what NARAL was fearing. (In that South Dakota piece—which is a bit dated now—I slog through the cases and provide citations, to the extent people are interested.) I counted somewhere around 25 Florida state RFRA cases, for example. Of those 25, plaintiffs won 1 on state RFRA grounds. That case involved a church that wanted to feed the homeless in a public park, despite a city rule saying that parks could not be used for social-service purposes. The church didn’t win the right to use the park of its choosing, but the trial judge enjoined the city to let them use some park at some time. The case is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001). Of course, plaintiffs sometimes ask for things they can’t possibly get under state RFRAs—the right to use marijuana while driving, for example, keeps coming up. But that’s a frivolous claim by a desperate criminal defendant, and it simply loses. State RFRAs have been asserted as defenses in some of the sex abuse cases. But usually such claims don’t even get separate analysis, and they certainly don’t win. If people like Marci will be more comfortable with a state RFRA with a child safety exception, I’d gladly do it. Not because I think it’s necessary, but because I think it isn’t: A state RFRA with a child safety exception will be treated exactly like a state RFRA without one. Children will be protected in any event. It’s also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed—and that has happened. Concerned with a pending suit by a Muslim to claim a drivers’ license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida’s RFRA. Judging by Florida’s reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. Best, Chris ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
I posted something briefly from my droid that was short, but now raise it more completely. Is there any evidence that the defeat in ND was at least in part about Indian religious freedom. There is some serious tension between Indians and non-Indians in ND and since the whole issue of RFRA came out of Oregon's hostility to the Native American Church -- Oregon could easily have gone the other way just on the fact of Smith -- I wonder if there is some sense that this issue was present in ND as well. Paul * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure
RE: Religious exemptions in ND
These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu [paul.finkel...@albanylaw.edu] Sent: Thursday, June 14, 2012 4:14 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND I posted something briefly from my droid that was short, but now raise it more completely. Is there any evidence that the defeat in ND was at least in part about Indian religious freedom. There is some serious tension between Indians and non-Indians in ND and since the whole issue of RFRA came out of Oregon's hostility to the Native American Church -- Oregon could easily have gone the other way just on the fact of Smith -- I wonder if there is some sense that this issue was present in ND as well. Paul * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward
RE: Religious exemptions in ND
Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edu wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Presumably the federal Establishment Clause would limit the reach of Measure 3. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: bob b...@jmcenter.org; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jun 14, 2012 9:17 pm Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com blocked::http://www.storzerandgreene.com/ stor...@storzerandgreene.com blocked::mailto:stor...@storzerandgreene.com _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private
Re: Religious exemptions in ND
In short,any accommodation of religion is a violation of the equal protection clause. This would certainly be a rather sharp departure from the best of the American tradition. And I guess I have been misinformed all these years in thinking religious freedom was a basic american value. Bob's message does illustrate the sharp divide between an egalitarian understanding of the constitution and a liberty based one-a divide highlighted today when the aclu sent the senate a letter calling for a very narrow religious exemption from ENDA. There was a time the aclu valued religious liberty. Apparently no longer for conservative faiths. Marc From: b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Thursday, June 14, 2012 09:12 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edu wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Thursday, June 14, 2012 7:01 PM To: 'b...@jmcenter.org'; 'religionlaw@lists.ucla.edu' Subject: Re: Religious exemptions in ND In short,any accommodation of religion is a violation of the equal protection clause. This would certainly be a rather sharp departure from the best of the American tradition. And I guess I have been misinformed all these years in thinking religious freedom was a basic american value. Bob's message does illustrate the sharp divide between an egalitarian understanding of the constitution and a liberty based one-a divide highlighted today when the aclu sent the senate a letter calling for a very narrow religious exemption from ENDA. There was a time the aclu valued religious liberty. Apparently no longer for conservative faiths. Marc From: b...@jmcenter.orgmailto:b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Thursday, June 14, 2012 09:12
RE: Religious exemptions in ND
Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe
RE: Religious exemptions in ND
OK, sorry, that wasn't meant for the whole list D'oh! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, June 14, 2012 8:11 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views
RE: Religious exemptions in ND
Connecticut and Alabama use burden instead of substantial burden in their state RFRAs. Rhode Island, New Mexico, and Missouri speak of restrictions on religious liberty. But I really don't know how much the difference in language ends up mattering. Connecticut is a burden state, like North Dakota would have been. But the lower courts in Connecticut have interpreted Connecticut's RFRA to be equivalent to the standard laid out in Employment Division v. Smith. It's hard to see how that is even possible, given what state RFRAs were designed to do. But there it is. My South Dakota piece (which Doug referred to earlier) provides the details. Given all this, it's hard for me to understand these fears of dramatic overenforcement. Even with explicit authorization from state legislatures, we can't even seem to get back to Sherbert/Yoder-and it's not as if the Sherbert/Yoder regime led to the horrible things that NARAL was fearing. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website-http://law.wayne.edu/profile/christopher.lund/ Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer Sent: Thursday, June 14, 2012 9:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com blocked::http://www.storzerandgreene.com/ stor...@storzerandgreene.com blocked::mailto:stor...@storzerandgreene.com _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota
