The Establishment Clause analysis in Larson v. Valente involved strict
scrutiny. Perhaps it should be limited to EC cases involving denominational
preference, perhaps not. But in any event, strict scrutiny does apply in at
least some EC cases. I suppose that fact would have to be accounted fo
Kennedy's opinion strikes me as a bit broader, not narrower. He adopts the
reasoning of the Alito opinion (as Chip mentions, expressly in full, and
without critique) and adds a few more reasons for rejecting FFRF's reading of
Flast. That seems to decide more, not less, than the Alito opinion.
http://www.becketfund.org/files/a19c7.pdf
The Court refines the “substantial burden”
standard along the same lines as Posner’s opinion in Sts. Constantine & Helen, and then
finds a “substantial burden” on the facts before it. The Court also rejects
an Enforcement Clause challenge to the
The case is Curay-Cramer
v. Ursuline Academy of Wilmington:
http://caselaw.lp.findlaw.com/data2/circs/3rd/044628p.pdf
The court applied the NLRB
v. Catholic Bishop of Chicago analysis
in rejecting a Title VII sex discrimination / disparate treatment claim, but rejected
two other c
Although I share Marci's general concern about the risks associated with
religious organizations taking government funds, I'm pretty sure that's not the
driving force in this case. Even before the government would get to the point
of pulling its funding to Catholic Charities (assuming there is
Decision at this link:
http://www.floridasupremecourt.org/decisions/2006/sc04-2323.pdf
Anthony R. Picarello, Jr.
President & General Counsel
The Becket Fund for Religious Liberty
1350
Connecticut Avenue, NW
Suite 605
Washington, DC 20036-1735
Phone: (202) 349-7203
Fax: (2
Title: Message
There are even more to choose from:
-
ACLU v Schundler (rejecting
EC challenge to holiday display under endorsement test)
-
ACLU v Wall Twp (rejecting
EC challenge to holiday display for lack of standing)
-
Blackhawk v PA (upholding
FEC challeng
There is definitely cause for concern in the 6th Circuit, but I wouldn't
worry about it as much in other jurisdictions. This is, after all, the
Circuit that went out on a limb to strike down RLUIPA on an
Establishment Cls theory that had been uniformly rejected by appellate
courts (as against both
I think the best explanation for the
district judge’s decision to rely on the 9th Circuit opinion is
his own (remarkably candid) explanation. It appears in fn22, at the very
end of the opinion. For convenience, I’ve cut and pasted it below:
22 This court would be less than
candid if i
Title: Re: Pop Quiz: Justice O'Connor and the Religion Clauses
Our posts may have just crossed, but just
to reiterate, our point was not that O’Connor was always wrong on the
Establishment Clause, or that we would never celebrate any of her EC decisions.
It was that her decisions were hit
Seamus' statement talked about O'Connor's views under the Establishment Clause,
not under the Free Speech or Free Exercise Clauses. I think his criticism was
appropriate, because her Establishment Clause decisions were indeed
unpredictable and (at least) difficult to reconcile in a principled w
It is an overstatement to
say that San Jose Christian College v Morgan Hill "reversed" Cottonwood's
substantial burden analysis. Yes, SJCC used new language to give meaning to "substantial burden"
that Cottonwood did not use (and could not have used) itself, since the 9th
Circuit more or le
This is a helpful recap, but you omitted another initial claim that
appears to have been dropped altogether rather than amended: in
contrast to Turner, "O'Lone does seem to require lowest level
rationality review."
Or is there still an argument that Turner and O'Lone are different?
-Origi
This is a noble gesture,
but it doesn't succeed in establishing that Turner / O'Lone is any more
demanding than rational basis scrutiny. (Again, I wish it were otherwise,
and I want to be persuaded that it is, but I can't honestly claim that it is the
current state of the law.)
Yes, a pri
I also did a quick review
of intermediate scrutiny cases and didn't find any that use the term
"legitimate" to describe the requisite interest.
I think Marci was right
the first time to say that the key words for intermediate are "substantial" and
"important." Clark v. Jeter, 486 US 456
I wish it were true that
the Turner standard was more demanding than rational basis, and I'm happy to
have you argue that it should be, but it is not.
The Turner court
specified not just a rational connection between the regulation and the
interest, but also that the interest need only be
There is no irony, only astonishingly aggressive spin and self-contradiction.
--Original Message--
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
ReplyTo: Law & Religion issues for Law Academics
Sent: Jun 5, 2005 4:39 PM
Subject: Re: Nullifying RLUIPA
Therein lies the irony of
I agree that the true test on
the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case
next term.
But I'd add that I don't
see a meaningful dilution of "strict scrutiny" in this decision. Instead,
the Court just reaffirmed two unremarkable propositions: (1) that pr
Funny. What's most
striking to me is that a unanimous court unequivocally rejected the Establishment Clause theory that wholesale,
religion-only accommodations confer too great a benefit on religion. It's
especially striking because the opinion included Justice Stevens, who appeared to have
I notice that your response contains no reference to Smith that might support
your distinction between the "blind" accommodations of religion by "cipher"
legislatures, and whatever
accommodations you might
support. No citations to its language,
"underlying political theory," or any rule o
Just in time for Cutter, the Harvard Journal
of Law and Public Policy has published an article by my colleague, Derek
Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality
of RLUIPA's Prisoner Provisions, 28 Harv. J.L. & Pub. Pol'y 501
(2005) It is available at this l
Marci says the following:
"Smith is pro-exemption
when the legislative process is operating not as a cipher, but in its
appointed mode as a deliberative entity. Given the underlying political
theory of Smith, it is my view that exemptions that are blind handouts to
re
I've heard (and made) the related argument that, although the government is
very unlikely actually to force ministers to perform same-sex marriages, the
government may well force ministers to choose between performing same-sex
marriages and being stripped of the government function of licensing
ssues for Law AcademicsSubject: Re: Institutional
Capacity to Manage Exemptions
I take it that challenges are improper even if well grounded? Not all
challenges, of course, prevail (Rosenberger).
On Monday, March 14, 2005, at 04:53 PM, Anthony Picarello wrote:
Then, with the sole excepti
Then, with the sole exception of federal
constitutional amendments, religious groups can expect Establishment Clause
challenges to their hard-won legislative accommodations: as "blind
giveaways" if they are too broad (Cutter), as "denominational preferences" if
too tailored (Kiryas J
Posner restores meaning to "substantial
burden" within the 7th Circuit in Sts. Constantine & Helen v. City of New
Berlin, 04-2326 (7th Cir., Feb. 1, 2005):
http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=04-2326.PDF
Enforcement Clause constitutionality is not
addressed directly, but
Supreme Court to Review Inmate Freedom Law
By GINA HOLLAND
Associated Press Writer
WASHINGTON (AP) -- The Supreme Court agreed Tuesday to consider the constitutionality
of a federal law that requires state prisons to accommodate inmate religions, from
Christianity to Satanism.
The case does n
Maybe Jefferson would have allowed religion to manifest itself in government as a part
-- an inevitable and indispensable part, but still only a part -- of an uninhibited,
robust, wide-open debate over public affairs.
And even if that wasn't his view, I like the idea.
-Original Message
Long op-ed of likely interest to list members:
http://www.opinionjournal.com/editorial/?id=110005223
Sent from the BlackBerry Wireless Handheld of:
Anthony R. Picarello, Jr.
Vice President & General Counsel
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington,
Title: Gay Activists Threaten Church Tax-Exempt Status
I
agree that, in the hypothetical case I've described, the IRS would be unlikely
to pursue sanctions. But that's true only as a practical / political
matter. I'm more interested in the legal / doctrinal question, and
I think the answe
Title: Gay Activists Threaten Church Tax-Exempt Status
How
about: "This moral principle [pick from among the usual suspects] is so
important to this religious congregation that, if a congregant supports any
candidate for any office who actively subverts the principle -- or who even
fails t
Title: Gay Activists Threaten Church Tax-Exempt Status
The
"susbtantial" limit on lobbying does provide ample breathing room for most
religious institutions, including any bona fide house of worship I could
imagine. And there's probably no limit on religious groups' advocacy
re moral issue
Plaintiffs complained for lack of a creche, but one wonders what would've happened (in
the school or the court) if they'd complained for lack a simple cross, no corpus. Is
that "purely religious" in a way that a menorah or star and crescent is not?
That isn't to say that I think this case prese
On Dec. 29, 2003, Judge King of the U.S. District of Hawaii rejected a motion to
dismiss the first DoJ Civil Rights Division lawsuit to enforce RLUIPA Section 2, U.S.
v. Maui County, Civ. No. 03-362-SPK/KSC. (This is the companion to our Hale O Kaula
v. Maui Planning Commission case.)
The moti
Judge Wilkinson follows the 7th and 9th Circuit on the newly divisive issue whether
RLUIPA violates the Establishment Clause.
The opinion also remands the other constitutional challenges to Section 3 (Commerce,
Spending, 10th & 11th Amts), which the DCt never reached.
The opinion was just po
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