Re: Johnson Amendment E.O.

eligious exercise rather than speech for constitutional purposes? Alan From: Alan E Brownstein Sent: Thursday, May 4, 2017 3:17 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. Your broad question isn't easy to answer. But let me address your ex

Re: Johnson Amendment E.O.

expressive activities you think deserve protection against state interference as religious exercise rather than speech for constitutional purposes? Alan ____ From: Alan E Brownstein Sent: Thursday, May 4, 2017 3:17 PM To: Law & Religion issues for Law Academics Subjec

Re: Johnson Amendment E.O.

- ____ From: religionlaw-boun...@lists.ucla.edu on behalf of Alan E Brownstein Sent: Thursday, May 4, 2017 2:01:34 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amendment E.O. I understand the concern that content-based constraints

Re: Johnson Amendment E.O.

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

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

Not all of the same folk who complain about government funding. There are still some of us left who support the old model of significant limitations on government funding of religious institutions and significant protection of religious institutions from government regulation and interference.

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

What I find most surprising is that the demise of the argument that government funding will undermine religious freedom is occurring at a time when the argument may well turn out to be accurate at least in some locations. It may be that for many people on the left the failure of the church auto

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

I think the question Michael poses is more complicated than his posts suggest in important respects, but I also think the dischordant rights argument he presents has substantial force. >From an analytic perspective, because religion implicates not only liberty >values but group and identity va

Religious objections to deportation policies

Has anyone written anything about (or given some thought to) the possibility of RFRA being employed to challenge the federal government's deportation policies. For example, might a professor or registrar at a private school be permitted to assert RFRA as a defense to a federal law requiring her

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

Three quick thoughts. 1. It would be helpful at least as a first step to limit the passages in Hobby Lobby about substantial burden to which Doug refers to claims where the government requires religious individuals or institutions to so some thing that their religion prohibits (often complicit

RE: Standing Rock

The Standing Rock case is only of several religious liberty cases that are likely to arise where, as Doug says “the political valences are reversed.” Obviously, there are already questions regarding the religious liberty and equality rights of Muslims. Also, it isn’t going to be too long before

Re: Sikhs in the Army

It is also worth noting that California Workplace Religious Freedom Act, enacted in 2012, not only imposed a stronger duty to accommodate religious employees on employers generally. It also explicitly included religious dress and grooming practices in the religious belief and observance protecte

Re: Scalia's views of RFRA?

I have suggested to my students (Yeah, I'm still teaching one semester a year) that RFRA as construed in Hobby Lobby pretty much leaves it to each person's conscience to determine when they are substantially burdened by a federal law when the law allegedly compels them to do something that their

Exclusion of clergy from holding office

I have an odd question that I hope list members might be able to help me answer. Do any list members know whether there were ever any federal restrictions on clergy serving as elected or appointed officers of the United States early on in our constitutional history that would parallel state res

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

r to provide single-sex swimming hours? (Again, I set aside the question whether this violates the Equal Protection Clause, quite apart from the religious questions.) Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:r

Re: Jewish law, women's bodies, and accommodations

I think the answer to Chip's question is that an Establishment Clause analysis evaluating the harms caused by a religious accommodation does require a balancing of interests. Indeed, the balancing analysis would have significant similarities to the balancing necessary to implement a serious free

Re: thoughts on constitutionality of single-sex hours for public pool?

Very thoughtful and helpful post, Chris. Sent from my iPhone On Jun 2, 2016, at 9:18 PM, "Christopher Lund" mailto:l...@wayne.edu>> wrote: I have thought about these issues a little bit over the years, because a similar program is in place at Wayne State, where I teach. (Wayne State is a pu

Re: thoughts on constitutionality of single-sex hours for public pool?

harm to third parties. Religious diversity in public swimming pools does not seem to present an interest of any importance whatsoever. On Thursday, June 2, 2016, Alan E Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: I think it is both reasonable and valid to accommodate religious groups whose

Re: thoughts on constitutionality of single-sex hours for public pool?

I think it is both reasonable and valid to accommodate religious groups whose members would be unable to enjoy benefits that the majority enjoys because of conflicts with a minority faiths beliefs. No one has to attend the prom or go on discretionary field trips or play in intra mural sports. B

RE: Mormon Transhumanist Association

There is an article in the April 20th issue of the New Yorker titled "The Immortality Upgrade." It involves a group called the Mormon Transhumanist Association "who believe that the development and dissemination of advanced technologies-cryogenics, bionics, artificial intelligence

Re: speech and religion hypothetical

onlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Thursday, April 21, 2016 9:41 PM To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> Subject: speech an

speech and religion hypothetical

I recognize this hypothetical, based very indirectly on a real incident, is more speech than religion, but I hope Eugene will allow my post to go forward in any case. Suppose a LGBT student group at a public university invites a guest speaker to present a scheduled lecture in a university clas

RE: Arizona, Indiana . . . and now Georgia

gned to follow how past RFRAs have been applied, but such broad and formerly almost universally praised legislation should be defensible without discussing a relatively narrow aspect of it as the bill's reason for being. On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein mailto:aebro

RE: Arizona, Indiana . . . and now Georgia

Based purely on anecdotal information, I think this issue is based more on timing than on legislative history. I worked on the attempt to get a state RFRA passed in California in 1998. The bill passed both houses of the legislature -- controlled by the Democrats -- only to be vetoed by the Repub

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts tha

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts tha

Re: Texas Cheerleaders display Bible Verses on banners

Vik Amar and I wrote a lengthy column on this case several years ago: The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute Nov. 9, 2012 Justia.com Verdict. Our conclusion was that the cheerleaders should lose under e

RE: "Islam, at heart, is a peaceful religion"

Good question, but it raises a problem that is intrinsic to attempts by public schools to teach comparative religion classes. Who speaks for the religion described in school materials? Must every statement be accompanied by caveats about disagreements among people who claim to be members of the

Re: Excluding religious institutions from public safety benefits

Since Doug isn't going to respond and most members of the list have written about these issues at some length, let me make two very brief points here. The focus of the discussion is the government funding of religious institutions. Doug is correct that if funds are made available to institutio

Re: Excluding religious institutions from public safety benefits

Hi Rick, Viewing the question of religious exemptions and church autonomy on the one hand and equal access to government subsidies on the other from a broad perspective, I "hear" this discord all the time. I spend a lot of time speaking to various civic groups, church groups and the like -- v

Re: The Establishment Clause question in the Trinity Lutheran case

I'm not about to suggest that Eugene's equal access arguments don't make sense. But I don't think his examples provide persuasive support for an equal access rule either. Example 1 is a designated public forum. As such, it is subject to equal access rules. But it is certainly not clear to me

Re: Excluding religious institutions from public safety benefits

It might also be relevant to note that at least for many congregations, pre-schools -- which typically have playgrounds -- are very important sources of revenue for the house of worship at which they are based. Alan Sent from my iPhone > On Jan 17, 2016, at 11:16 AM, "Graber, Mark" > wrote: >

Re: Excluding religious institutions from public safety benefits

ay be relevant to the way we evaluate the play in the joints when the same state limits subsidies available to religious institutions. Alan From: Alan E Brownstein Sent: Saturday, January 16, 2016 6:55 PM To: Law & Religion issues for Law Academics Su

Re: Excluding religious institutions from public safety benefits

>From Micah Schwartzman (who is having trouble connecting to the List). I take the larger point from Alan's examples to be that the state in his hypothetical gives religious organizations special treatment by providing them with exemptions and by excluding them from certain legal benefits. Th

Re: Excluding religious institutions from public safety benefits

I wonder if I might offer a modest (well maybe not so modest) amendment to Eugene's excellent hypotheticals. Say that the government adopted a package bill. It provided that: A. Houses of worship and directly affiliated schools and day care centers: Need not comply with many land use regulat

Re: reserved seat for member of religious organization on police comission

_ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan E Brownstein [aebrownst...@ucdavis.edu] Sent: Saturday, November 14, 2015 4:01 PM To: Law & Religion issues for Law Academics Subject: Re: reserved seat for member of religious organ

Re: reserved seat for member of religious organization on police comission

Anyone have any thoughts on the constitutionality of a rule that reserves one seat on a multi-member police commission for a member of a local religious organization (any religious organization would be acceptable) who is nominated by the organization. Some compensation is involved. Alan

RE: Muslim-focused "reflection room" in airport

r, please delete it immediately and call (972) 941-4451 to advise me that you received it. Thank you. PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT From: Alan E Brownstein mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion issues for Law Acade

RE: Muslim-focused "reflection room" in airport

I'm not sure how all of these free speech cases the Sixth Circuit cites apply to the government funding of a chapel. Is the argument that the creation of rooms in an airport terminal for expressive purposes is determined under open-access neutral criteria and that like the public property at iss

RE: Muslim-focused "reflection room" in airport

Ed knows much more about the ownership and management of airports than I do – although it’s not hard to satisfy that standard. But I recall several cases where airport governing authorities were sued for violating the free speech rights of people using the airport terminals for expressive purpos

RE: Muslim-focused "reflection room" in airport

I agree with Chip that an accommodation analysis may permit the creation of these facilities, but the analysis changes if we are evaluating a general funding program where no substantial burden on religious liberty requires accommodation. One important difference is that the accommodation can b

Re: "Call for Constitutional Resistance"

Just wondering -- is anyone circulating a call for scholars to support the fundamental right of same-sex couples to marry as affirmed by the Court in Obergefell and the principles of personal liberty and autonomy and human dignity on which the decision is based? __

RE: Assessing a Proposed Solution to the KY Case

ive conscience protection to "the office of county clerk," understood as a government entity or a place that somebody goes. The protection is personal to a human being. Kevin From: Alan E Brownstein mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion List mailto:

Re: Assessing a Proposed Solution to the KY Case

I think I understand Kevin's argument from his last post better than I did before, but I still disagree with it. Let me check my understanding of his position. Suppose Kentucky adopted an accommodation which it described in a sign that was to be posted in each county clerk's office. "Pursuant

Re: Assessing a Proposed Solution to the KY Case

While I appreciate Kevin's efforts to identify an accommodation that will work here -- and I certainly try to look for acceptable accommodations in resolving religious liberty disputes -- I'm inclined to agree with Jim and Chip here. A public official's insistence that the government office sh

RE: Davis doubles down

Doug is probably correct that the absence of Ms. Davis’s name on the marriage license form sends a powerful statement of her beliefs. But in evaluating the merits of granting her an accommodation I would consider that an incidental consequence of her religious liberty claim – and in my judgment

Re: What's happening in KY? -- wrong case, wrong parties

I appreciate Eugene's point here, but let me press the argument because I think it may be more complicated than Eugene suggests. Assume arguendo that having to go to a different county to get a marriage license does not impose a substantial burden on the right to marry. (I think it does, but

Re: Substantial burdens, RFRA, Chip Lupu's comments

Chip raises some important and provocative points about the way this litigation has gone forward. Let me re-characterize one of them and question another. Putting aside issues about complicity and whether Ms. Davis's actually authorizes anything by having her name on the license, let's just

RE: Question about the Kentucky County Clerk controversy

Sorry to be late joining this discussion, but I had two idiosyncratic , left field thoughts on this issue. If an accommodation is created (either through a separate statute or a RFRA decision) that permits the county clerk to delete his or her name from marriage licenses to mitigate the burden

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

Let me apologize in advance because I probably will not be able to participate in a timely way to further posts in this thread (which is a very interesting thread). But let me question Eugene's suggestion that just as sufficiently cabined rules for parade permits prevent viewpoint discrimination

Re: Religious organizations, tax-exempt status and same-sex marriage

I would prefer to see a Supreme Court opinion striking down bans on same-sex marriage based on a due process fundamental right to marry analysis or on the argument that gays and lesbians are a suspect or quasi suspect class or some mixture of the two. If the Court does decide to resolve this is

Re: Religious organizations, tax-exempt status and same-sex marriage

I have been reading the posts on this thread pretty much on the sidelines. My specific predictions on most things are almost always incorrect, but I tend to agree with Michael and Alan H. that there will be a large cohort of religious individuals and important religious denominations that contin

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

s of race, sex, religion, and disability, I also believe nonprofit religious institutions with nonconforming views should be able to provide a venue for fellow believers to pursue a shared commitment to their own values. - Jim On Thu, Apr 30, 2015 at 11:30 AM, Alan E Brownstein mailto:aebrownst.

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

emption. That is to say, sexual orientation should be treated like sex--no better; no worse. But again, I doubt this'll be an actual dispute. And, more to the point, I doubt the Court's decision in Obergefell will have any legal bearing on it. On Thu, Apr 30, 2015 at 3:02 PM, A

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

ear does your hypo occur? On Thu, Apr 30, 2015 at 2:30 PM, Alan E Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: None of us can predict the future very well. The world today is very different than I thought it would be 30 years ago. The question we can answer today is whether we would

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

None of us can predict the future very well. The world today is very different than I thought it would be 30 years ago. The question we can answer today is whether we would support or oppose the denial of a tax exemption to a privately funded religious school that engages in discrimination ag

Re: Town of Greece - Canadian Version

Interesting that the Canadian Court was so dismissive of the preamble. As I recall in Australia, the reason the Australian Constitution has a free exercise clause and establishment clause although it does not have a Bill of Rights is that people were sufficiently worried about the reference to G

Re: Eugene's Blog Post on Liberals and Exemption Rights

Excellent post, Hillel. I agree with you and also see the current situation as deeply sad and tragic. Alan Sent from my iPhone On Apr 6, 2015, at 9:21 PM, "Hillel Y. Levin" mailto:hillelle...@gmail.com>> wrote: In an ideal world I would stand with Sandy's plea for magnanimity. I tend towards

Re: submission

Thanks, Rob. A very forceful statement. But I guess no one was listening when you spoke. I'm pretty sure I read statements by Indiana legislators to the effect that no one had ever suggested to them that this law might be used to shield discrimination before the law was adopted. Alan Brownste

RE: "Dignitary Injury" as an argument against religious exemptions to non-discrimination laws

exemption more favorably in one case than the other. Alan From: Will Esser [mailto:willes...@yahoo.com] Sent: Thursday, April 02, 2015 2:19 PM To: Law & Religion issues for Law Academics; Alan E Brownstein Subject: Re: "Dignitary Injury" as an argument against religious exem

RE: "Dignitary Injury" as an argument against religious exemptions to non-discrimination laws

Will and Chip’s exchange ended on such a thoughtful and positive note (which I greatly appreciate) that I hesitate to add another post to this thread out of fear it might break the spell. I agree with Will and Chip’s discussion about when and whether speech by itself constitutes discrimination

Re: Eugene's Blog Post on Liberals and Exemption Rights

rinciple prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious obs

Re: Eugene's Blog Post on Liberals and Exemption Rights

The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in "third party.") I think many liberals beli

Re: civil rights carve out from state RFRAs

Sorry to be returning to prior posts, but I would like further clarification on the argument against adopting a RFRA law with a provision excluding civil rights laws from its application. If a state RFRA is not intended or expected to provide any kind of expansive protection to discrimination

RE: Amazing what Hobby Lobby has wrought

If it is a mistake to prohibit discrimination in hiring based on mutable characteristics and "vaguely defined concepts," then clearly we should not prohibit discrimination based on religion. Other prohibited grounds for discrimination might also fall victim to an insistence that the characteris

RE: Amazing what Hobby Lobby has wrought

Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (al

Re: Anti-discrimination, legislative compromise, and strict scrutiny

​My question is a bit different than the one Hillel posed. Suppose the religious exemption permitting discrimination on the basis of sexual orientation in places of public accommodation/employment is broader than exemptions provided to religious objectors who believe they are required to discri

Re: Wedding photographers and freelance writers

Amendment right to, say, refuse to write any press releases for Scientologists, and not allow anyone who works for the business to take such assignments in his capacity as an employee of the business. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf

Re: Wedding photographers and freelance writers

Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law & Religion issues for Law Academics Subject: Re: Wedding photogra

Re: Wedding photographers as creators of art

​I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so pe