Re: Religious exemptions and undue preference for religion/Smith
Fair question. I would not want to make the causation claim but it has been strongly correlative. Perhaps the better word is synergistic. In concrete terms, Smith has been crucial in clergy abuse litigation to hammer home the point that churches are subject to the tort and criminal laws. It also has been an aid in discussions with legislators who fear the political backlash of clergy but want to do the right thing by children and child victims. . Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Paul Horwitz Date: Mon, 23 Mar 2009 08:56:15 To: Marci Hamilton; Law & Religion issues for LawAcademics Subject: RE: Religious exemptions and undue preference for religion/Smith Do you mean that Smith as symbol has been important to child and disabled adult victims of church sexual abuse? I guess I have two questions about this. 1) Those movements were becoming increasingly popular in the 1990s. Do you think there's a causal relationship, or merely a correlative one? 2) I take it you're not saying that Smith as substance has been vital to those movements. I'm not sure I see how that statement would be accurate. Paul HorwitzUniversity of Alabama School of Law > To: religionlaw@lists.ucla.edu > Subject: Re: Religious exemptions and undue preference for religion/Smith > From: hamilto...@aol.com > Date: Mon, 23 Mar 2009 13:24:35 + > > Perry-- with respect to your last comment about Smith and Boerne, could you > please point to illegal religious practices that you would want the free > exercise clause to protect that are not protected under Smith? I am > interested in the actual impact of Smith. I can tell you that Smith has been > crucial in freeing child abuse and disabled adult abuse victims from church > practices and control. In other words, it has fueled a civil rights move for > children and disabled adults, the most vulnerable in our society. The more I > have seen Smith in practice, the more convinced I have been of its > fundamental soundness. > I would welcome examples from others as well, of course. > > Marci > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Cardozo School of Law > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: Perry Dane > > Date: Mon, 23 Mar 2009 00:17:59 > To: > Subject: Religious exemptions and undue preference for religion > > > Eugene, > > I wonder if you're reading the court's footnote too > broadly. When the court says that "granting an exception to > Cornerstone (or perhaps all parochial schools) based on the theory > that the free exercise claims elevate Cornerstone (or all parochial > schools) to a higher status than secular nonpublic schools-would be > equally unacceptable under federal law," it might simply mean that > such an exception would be "unacceptable" as a requirement of free > exercise doctrine, not that it would be unconstitutional if required > by a legislature. > > Even if the court did mean more than that, note that what > Cornerstone is asking for is far removed from any sort of > paradigmatic religion-based exemption. Whatever burden the > government is imposing on free exercise here is quintessentially > "indirect." Moreover, while I'm no great friend of the > burden-benefit distinction, there surely are some free exercise > claims, particularly when they involve alleged right to benefits > rather than defenses against burdens, that are not only off the > tracks on free exercise grounds but jump the tracks, so to speak, to > the point of raising establishment clause concerns. For example, it > seems to me that if Mrs. Sherbert's religion not only forbade work on > Saturdays but any work at all, and also forbade contributing to the > unemployment insurance fund, her claim to unemployment benefits > would, had it been accepted by the State, actually have raised the > specter of an unconstitutional religious preference. And I say this > as someone who believes in a vigorous free exercise clause and > continues to lament Smith and City of Boerne. > > Perry > > > > *** > Perry Dane > Professor of Law > > Rutgers University > School of Law -- Camden > 217 North Fifth Street > Camden, NJ 08102 > > d...@crab.rutgers.edu > Bio: www.camlaw.rutgers.edu/bio/925/ > SSRN Author page: www.ssrn.com/author=48596 > > Work: (856) 225-6004 > Fax: (856) 969-7924 > Home: (610) 896-5702 > *** > > >___
RE: Religious exemptions and undue preference for religion/Smith
Do you mean that Smith as symbol has been important to child and disabled adult victims of church sexual abuse? I guess I have two questions about this. 1) Those movements were becoming increasingly popular in the 1990s. Do you think there's a causal relationship, or merely a correlative one? 2) I take it you're not saying that Smith as substance has been vital to those movements. I'm not sure I see how that statement would be accurate. Paul HorwitzUniversity of Alabama School of Law > To: religionlaw@lists.ucla.edu > Subject: Re: Religious exemptions and undue preference for religion/Smith > From: hamilto...@aol.com > Date: Mon, 23 Mar 2009 13:24:35 + > > Perry-- with respect to your last comment about Smith and Boerne, could you > please point to illegal religious practices that you would want the free > exercise clause to protect that are not protected under Smith? I am > interested in the actual impact of Smith. I can tell you that Smith has been > crucial in freeing child abuse and disabled adult abuse victims from church > practices and control. In other words, it has fueled a civil rights move for > children and disabled adults, the most vulnerable in our society. The more I > have seen Smith in practice, the more convinced I have been of its > fundamental soundness. > I would welcome examples from others as well, of course. > > Marci > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Cardozo School of Law > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: Perry Dane > > Date: Mon, 23 Mar 2009 00:17:59 > To: > Subject: Religious exemptions and undue preference for religion > > > Eugene, > > I wonder if you're reading the court's footnote too > broadly. When the court says that "granting an exception to > Cornerstone (or perhaps all parochial schools) based on the theory > that the free exercise claims elevate Cornerstone (or all parochial > schools) to a higher status than secular nonpublic schools-would be > equally unacceptable under federal law," it might simply mean that > such an exception would be "unacceptable" as a requirement of free > exercise doctrine, not that it would be unconstitutional if required > by a legislature. > > Even if the court did mean more than that, note that what > Cornerstone is asking for is far removed from any sort of > paradigmatic religion-based exemption. Whatever burden the > government is imposing on free exercise here is quintessentially > "indirect." Moreover, while I'm no great friend of the > burden-benefit distinction, there surely are some free exercise > claims, particularly when they involve alleged right to benefits > rather than defenses against burdens, that are not only off the > tracks on free exercise grounds but jump the tracks, so to speak, to > the point of raising establishment clause concerns. For example, it > seems to me that if Mrs. Sherbert's religion not only forbade work on > Saturdays but any work at all, and also forbade contributing to the > unemployment insurance fund, her claim to unemployment benefits > would, had it been accepted by the State, actually have raised the > specter of an unconstitutional religious preference. And I say this > as someone who believes in a vigorous free exercise clause and > continues to lament Smith and City of Boerne. > > Perry > > > > *** > Perry Dane > Professor of Law > > Rutgers University > School of Law -- Camden > 217 North Fifth Street > Camden, NJ 08102 > > d...@crab.rutgers.edu > Bio: www.camlaw.rutgers.edu/bio/925/ > SSRN Author page: www.ssrn.com/author=48596 > > Work: (856) 225-6004 > Fax: (856) 969-7924 > Home: (610) 896-5702 > *** > > > ___ > 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/religionla
Re: Religious exemptions and undue preference for religion/Smith
Perry-- with respect to your last comment about Smith and Boerne, could you please point to illegal religious practices that you would want the free exercise clause to protect that are not protected under Smith? I am interested in the actual impact of Smith. I can tell you that Smith has been crucial in freeing child abuse and disabled adult abuse victims from church practices and control. In other words, it has fueled a civil rights move for children and disabled adults, the most vulnerable in our society. The more I have seen Smith in practice, the more convinced I have been of its fundamental soundness. I would welcome examples from others as well, of course. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Cardozo School of Law Sent from my Verizon Wireless BlackBerry -Original Message- From: Perry Dane Date: Mon, 23 Mar 2009 00:17:59 To: Subject: Religious exemptions and undue preference for religion Eugene, I wonder if you're reading the court's footnote too broadly. When the court says that "granting an exception to Cornerstone (or perhaps all parochial schools) based on the theory that the free exercise claims elevate Cornerstone (or all parochial schools) to a higher status than secular nonpublic schools-would be equally unacceptable under federal law," it might simply mean that such an exception would be "unacceptable" as a requirement of free exercise doctrine, not that it would be unconstitutional if required by a legislature. Even if the court did mean more than that, note that what Cornerstone is asking for is far removed from any sort of paradigmatic religion-based exemption. Whatever burden the government is imposing on free exercise here is quintessentially "indirect." Moreover, while I'm no great friend of the burden-benefit distinction, there surely are some free exercise claims, particularly when they involve alleged right to benefits rather than defenses against burdens, that are not only off the tracks on free exercise grounds but jump the tracks, so to speak, to the point of raising establishment clause concerns. For example, it seems to me that if Mrs. Sherbert's religion not only forbade work on Saturdays but any work at all, and also forbade contributing to the unemployment insurance fund, her claim to unemployment benefits would, had it been accepted by the State, actually have raised the specter of an unconstitutional religious preference. And I say this as someone who believes in a vigorous free exercise clause and continues to lament Smith and City of Boerne. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Religious exemptions and undue preference for religion
Eugene, I wonder if you're reading the court's footnote too broadly. When the court says that "granting an exception to Cornerstone (or perhaps all parochial schools) based on the theory that the free exercise claims elevate Cornerstone (or all parochial schools) to a higher status than secular nonpublic schools-would be equally unacceptable under federal law," it might simply mean that such an exception would be "unacceptable" as a requirement of free exercise doctrine, not that it would be unconstitutional if required by a legislature. Even if the court did mean more than that, note that what Cornerstone is asking for is far removed from any sort of paradigmatic religion-based exemption. Whatever burden the government is imposing on free exercise here is quintessentially "indirect." Moreover, while I'm no great friend of the burden-benefit distinction, there surely are some free exercise claims, particularly when they involve alleged right to benefits rather than defenses against burdens, that are not only off the tracks on free exercise grounds but jump the tracks, so to speak, to the point of raising establishment clause concerns. For example, it seems to me that if Mrs. Sherbert's religion not only forbade work on Saturdays but any work at all, and also forbade contributing to the unemployment insurance fund, her claim to unemployment benefits would, had it been accepted by the State, actually have raised the specter of an unconstitutional religious preference. And I say this as someone who believes in a vigorous free exercise clause and continues to lament Smith and City of Boerne. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Religious exemptions and undue preference for religion
Cornerstone Christian Schools v. University Interscholastic League, http://www.ca5.uscourts.gov/opinions/pub/08/08-50429-CV0.wpd.pdf, rejects Cornerstone's (and some Cornerstone parents') demands to allow Cornerstone to participate in a public-schools-only sports league. The Free Exercise Clause analysis sounds quite right to me under Smith, but I was particularly struck by this footnote (14): "We are also reluctant to grant the relief plaintiffs seek because of its breadth. Plaintiffs asks us to declare section 12(d) unconstitutional, thus opening the door to the UIL for all nonpublic schools. The only other viable alternative under the complaint-granting an exception to Cornerstone (or perhaps all parochial schools) based on the theory that the free exercise claims elevate Cornerstone (or all parochial schools) to a higher status than secular nonpublic schools-would be equally unacceptable under federal law. See Swanson, 135 F.3d at 701-02 (holding that the Free Exercise Clause does not require the government to provide "special treatment not accorded other home-schooled or private-schooled students" in the form of "an added exception to the part-time attendance policy [which denied home-schooled students the right to take classes in public schools], that would accommodate people who home-school for religious reasons")." Texas has a state RFRA. Say that Cornerstone, or some similar school, demands a religious exemption under state RFRA. Would such an exemption indeed be unconstitutionally religion-favoring? (Note that giving Cornerstone such an exemption that private secular schools don't have may well lead quite a few families to choose Cornerstone's religious education over private schools' secular education, if interscholastic competition is important enough o those families.) Even if it wouldn't be unconstitutional, could the state still argue that it has a compelling interest in preventing such favoritism for religious schools? Or would the answer be that an exemption should be given, but should be extended to all private schools, secular as well as religious (on the theory that this would be a least restrictive means of serving the interest in preventing favoritism for religious schools)? 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.
