Dear Marty,
I agree, certainly, that "thoughtful justification" is always important and
welcome. For what it's worth, though, I think it overstates the matter a
bit to characterize the religious-institutionalism arguments as pressing a
blanket right to "opt out of the welfare state" or even to av
And, in my experience, it's an uncommon Roman Catholic who remembers/knows
what he or she celebrates on the Feast of the Immaculate Conception (just a
few days ago, on Dec. 8!). I'm aware of a case in Maine in which the
government lawyer attempted to undermine a Catholic plaintiff's
religion-based
now (reportedly) will argue that her religion prohibits a County
> Deputy Clerk from issuing a license even though (unlike ND and its
> insurer/TPA) Davis presumably did not herself enter into a contract with
> the Deputy Clerks.
>
> On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett wrote:
Eric,
I was not there, but have I listened, and I don't think your
characterization is accurate. Notre Dame, my understanding and impression
are, has not said much about the government's determination to provide (or,
more precisely, to require the provision by others of) contraceptives to
Notre D
Dear Eugene (and colleagues),
I realize the conversation has moved on a bit, but I wanted to thank you
for this hypo; it's been on my mind, too. For what it's worth, when I was
a law clerk, I was -- or, I felt that I was -- in something like the
situation you describe when I was the designated cl
so, you might want to
> clarify.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* reli
Dear Michael,
This does not contradict your point but, as it happens, and for what it's
worth, the Catholic Church has not done away with indulgences. See, e.g.:
http://www.news.va/en/news/pope-francis-grants-indulgences-for-world-youth-da
That said, there was recently some confusion over the q
Dear Nelson,
I don't see that "the Hobby Lobby Court reaffirmed the principle against
burden-shifting in religion accommodations" or that "Justice Kennedy made
it central to his vote" if by "principle" here you mean the argument --
which, of course, you and several others have very ably developed
onvinced by 20 years of experience that the
regime of RFRA, as administered by judges and never supervised by
legislatures, is unprincipled.
I hope this answers your question.
Chip
On Wed, Feb 18, 2015 at 2:25 PM, Rick Garnett wrote:
> Dear Chip,
>
> I'm probably just echoing E
Dear Chip,
I'm probably just echoing Eugene's earlier comment but, for what it's
worth, I think your claim that "[n]o one who embraced Scalia's description
of limits on the judicial role could be a fan of RFRA, unless perhaps it
turned out that RFRA helped his friends" might overstate things a bit
Dear Chip,
Thanks for this. I'm hoping that Notre Dame will send a team again. All
the best,
Rick
Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-078
refore object on religious grounds to
> > providing health insurance that covers methods of birth control . . .
> > ."
> >
> > Ultimately, the Court holds that "protecting the free-exercise rights
> > of corporations like Hobby Lobby, Conestoga, and Mardel protects the
Dear colleagues,
I suppose I am just echoing a point that Eugene made, but it seems to me
that -- while it is certainly possible to imagine settling, at the end of
the day, if only for pragmatic reasons, on a legal regime that did not
extend religion-related exemptions from generally applicable "c
Dear colleagues,
Like Eugene, I think there is (as always) a lot to what Alan says. Still, with
respect to the specific question whether judicial predictions or observations
of "political divisiveness along religious lines" should be used to identify
those practices and policies that are uncon
Thanks, Tom. Here is the link, if anyone is interested, to the paper (now about
8 years old!):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=855104
It seems to me, for what it's worth, that a ruling for Hobby Lobby would not
(or need not) be wooden, divisive, or conservative, even if we th
Dear colleagues,
I thought that Prof. Marc DeGirolami (St. John's) made a number of interesting
and helpful observations - which suggest that at least some matters might have
been clarified a bit -- about Justice Kennedy's opinion in this post ("The
Jurisprudence of Tradition"):
http://mirror
Dear Alan and Chip -
Your conversation is (natch!) insightful and helpful. For what it's worth, it
is not clear to me (putting aside things the Supreme Court may or may not have
said or meant) that either the Establishment Clause or whatever theories of
church-state relations and religious-fre
Colleagues -
Two quick things: First, as Eduardo has said, the "cooperation with evil"
question is tricky and (he and I agree) debatable and debated among informed
Catholics. In my view, though (as Marty and I have discussed a few times), it
is incomplete to think about the burden the mandate
From: Rick Garnett mailto:rgarn...@nd.edu>>
Date: February 14, 2014 at 5:42:42 PM MST
To: "Levinson, Sanford V"
mailto:slevin...@law.utexas.edu>>
Cc: "religionlawp...@lists.ucla.edu<mailto:religionlawp...@lists.ucla.edu>"
mailto:religionlawp...@lists.u
It is true that the oral argument (available online) is striking and revealing.
And, it is true that at least one person involved should be embarrassed.
Rick
Sent from my iPhone
On Feb 14, 2014, at 5:49 AM, "Steven Jamar"
mailto:stevenja...@gmail.com>> wrote:
Judge Posner gives 1L lesson on o
n N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Jan 6, 2014, at 2:46 PM, Rick Garnett
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,
I would recommend Prof. Kevin Walsh’s post (here:
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-
Dear colleagues,
I would recommend Prof. Kevin Walsh’s post (here:
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
on the issue with which Marty kicked off this thread a few days a
Dear friends,
I'm also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others
who have been blogging and writing - carefully and insightfully - about the HHS
cases. I wanted to raise a not particularly technical or doctrinal question
that has been on my own mind as I think about
t majority-supported legislation (of any type)
substantially burdening the exercise of that right be closely scrutinized.
Rick Garnett
Sent from my iPhone
On Aug 1, 2013, at 7:47 PM, "hamilto...@aol.com<mailto:hamilto...@aol.com>"
mailto:hamilto...@aol.com>> wrote:
With
Dear Marty,
For what it's worth, Doug states succinctly and well what is also my view
(though, with respect to religious institutions, I believe that the mandate
burdens religious freedom in the additional, integrity-compromising way that
has been mentioned). I do not believe that our commitme
ntly situated for RFRA purposes from the O'Brien Industrial Company,
which hires many non-Catholics and that does not endeavor to require its
employees to conform their conduct to Catholic precepts.
On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,
Dear colleagues,
Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the
decision’s many flaws -- to the decision we’re discussing, at the “Mirror of
Justice” blog:
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-
Colleagues,
I think it needs to be recalled that the "cooperation with evil" / "violation
of conscience" issue is not, in the context of the RFRA and other arguments
against the HHS mandate, the whole story. "Religious freedom", both as a moral
matter and as a legal one, can be burdened, in way
rican school system. (And securing the freedom
of families to provide or obtain a private religious education outside the
American school system is surely a "governing principle" of our constitutional
order (Meyer, Pierce, etc.).) But "religious education" as such not only i
ol system is surely a "governing principle" of our constitutional
order (Meyer, Pierce, etc.).) But "religious education" as such not only is
not an integral part of the American school system -- as a constitutional
matter, it can't be part of that system at all.
On Sat, Jun
erning principle" of our constitutional
order (Meyer, Pierce, etc.).) But "religious education" as such not only is
not an integral part of the American school system -- as a constitutional
matter, it can't be part of that system at all.
On Sat, Jun 30, 2012 at 10:29
the student's completion of the necessary
secular curriculum. Here, the education in question is specifically religious
in nature (that's the point, and there's no indication in the opinion of any
secular content). That is to say, the credit is being offered for the
religiou
ol3/cf_dev/AbsByAuth.cfm?per_id=342235>
Blogs:
Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://www.mirrorofjustice.blogs.com/>
From: Rick Garnett
Sent: Monday, June 25, 2012 1:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exempti
Dear colleagues,
Here is the complaint, filed today by the University of Notre Dame, challenging
the mandate on RFRA, FEC, and other grounds. Among other things, it has the
information (I think) that Kevin is asking about.
http://opac.nd.edu/assets/69013/hhs_complaint.pdf
Best,
Rick
Richard
If only "common sense" -- and an accommodating spirit, respect for religious
liberty, a tolerance and even appreciation for diversity and pluralism -- of
the kind that seems to have won the day with the TAPP, and that most on this
list are (rightly) celebrating, were playing a similar role in th
From: Rick Garnett
Sent: Tuesday, February 14, 2012 10:36 AM
To: Law & Religion issues for Law Academics; Walsh, Kevin
Cc: Crowley, Donald; conlawp...@lists.ucla.edu
Subject: RE: RFRA substantial burden analysis
Dear Marty,
I agree with you that there is no moral or religious-liberty righ
Dear Bruce,
As you say, these are deep and interesting questions. For what it's worth, I
don't think the only or best alternative to a "warranted for prudential reasons
carve-out from the state's otherwise applicable authority" view of the
ministerial exception is an "absolutist" "two realms"
ligion issues for Law Academics
Subject: RE: Hosanna-Tabor
There was a very good panel on the case at AALS Saturday morning (organized by
Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie
Griffin) and it included, among other things, an exchange between Rick Garnet
law-boun...@lists.ucla.edu>
on behalf of John Taylor
Sent: Wed 1/11/2012 3:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hosanna-Tabor
There was a very good panel on the case at AALS Saturday morning (organized by
Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline
I
did not intend "ordained" clergy.
Do we still disagree?
Marci
On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote:
Dear Marci,
I think you are right about the second sentence, but I disagree with your
second. The opinion seems clearly to reach beyond "clergy."
Best wis
Dear Marci,
I think you are right about the second sentence, but I disagree with your
second. The opinion seems clearly to reach beyond "clergy."
Best wishes,
Rick
Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631
Colleagues,
My understanding (just from news reports) is that no Muslim students have
complained about this matter; instead, John Banzhaf filed the complaint, as a
kind of follow-up to his complaint about Catholic University's recently
announced move to single-sex housing for undergraduates. I
Dear Marty,
I'm not sure about how you've constructed the "run of the mill" and "not one of
those sorts of cases" categories - because I think it seems to make an awful
lot depend simply on what the government has chosen to identify as a prohibited
ground of decision, and it seems to de-emphasi
say, this is a far cry (isn't it?) from the case you posit, in which
the state would (as no state does) try to regulate the question of who is
worthy to conferral of sacrements. The state's legitimate interest in that
case would be very difficult to identify and defend. But here there is
be three rules. Rule 3 would apply the holding
of Employment Division v. Smith to religious institutions in those
circumstances in which the "autonomy" of religious institutions receives no
protection against neutral laws of general applicability.)
Alan
From: religionlaw-boun...@lists.
Dear colleagues,
For what it's worth (disclosure: I helped on an amicus brief, for the
church-school, in the H-T case), and with respect to Marci's statement that
those of us who contend that "church autonomy" is a crucial dimension of
religious freedom through law are claiming "immunity from
Dear Eugene,
It strikes me that, regrettably, the headline is a bit misleading and so,
perhaps, unnecessarily inflammatory. I mean, it is not the case that a judge
simply "ordered the use of Islamic law", right? I assume that what he
"ordered" could just as well be said to be "compliance wit
Dear colleagues,
I agree with Marci that a healthy, positive sense of the distinction between
religious authority and political / civil authority is important for religious
freedom. (This is one reason, I think, measures like the recent attempt in
Connecticut to re-organize Catholic parishes o
o
determine whether the ministerial exception applies to a given employee.
Eugene commended the petition's quality,
http://volokh.com/2010/10/28/antidiscrimination-laws-and-religious-organizations,
but I don't know what he thinks about the merits. Rick Garnett called it &qu
Thanks, Chris, for this. I have not yet read the opinions, but it strikes me
that Judge Berzon’s proposed standard would, in practice, excise from the
exemption not only all religious social-service agencies, but also (nearly) all
religious “educational institutions” , which seems inconsistent
Dear Paul,
What do you say to Will's question about requiring would-be doctors to perform
(elective) abortions? Doesn't your note, below, leave open hard questions
about what, in fact, is necessarily entailed in a particular job? And, so long
as one's scruples are disclosed, why, exactly, sho
Dear Marci -- Like you, I am happy to embrace efforts to educate the public
about constitutional rights generally, and about religious-freedom rights
(including churches’ right to select their own ministers) specifically. Like
Bob, though, I do not believe that these rights (and the constraints
Friends -- with respect to Marci's suggestion that religious entities be
required to inform people in ministerial positions about the fact that such
entities have a constitutional right to hire-and-fire that is not subject to
many employment-law constraints . . . it seems to me that people oft
n religious schools. Here is a link to one of his
papers:
http://www.nd.edu/~amdemoc/Campbell_civiced.pdf
David Sikkink, a sociologist at Notre Dame, has also researched some
of the matters being discussed by Professors Berg and Newsom.
See:
http://www.nd.edu/~dsikkink/
Best wishes,
Rick Garnett
he religious freedom of Catholics.
Best wishes,
Rick Garnett
at 09:12 AM 8/17/2005, [EMAIL PROTECTED] wrote:
The
proposed legislation is not anti-Catholic, but rather anti-fraud and
anti-coverup. This is coming from inside the Mass.
legislature as much as it is from any outside pressure. The
legis
Dear all,
Laurence Olivier starred in a 1961 film version of Graham Greene's
"Power and the Glory." And, "One Man's Hero"
(1999), starring Tom Berenger, is about the San Patricios (Irish-American
soldiers who deserted during the Mexican-American war).
Rick
At 10:56 AM 8/11/2005, Roman P. Sto
ch on the doctrines of the creation ex nihilo and the
creation of man in the image of God.
Whatever the merits of these statements, it seems to me that they
are -- contrary to the characterizations of some -- a long way from
"fundamentalism" or from a rejection of the dignity and
comp
sion" panel has been
given a sub-optimal time-slot (Sunday morning). Still, I'd
encourage folks to try to schedule your travel in a way that
permits attending.
Best wishes,
Rick Garnett
At 12:28 PM 5/31/2005, you wrote:
Content-class:
urn:content-classes:message
Dear all,
I appreciate Toni Massaro's reminder about "The Great School Wars" and the
help that Professor Ravitch's book provides in thinking about the recent
case in Maryland (and many other things). The book is, as Toni says,
"illuminating for many reasons." For what it's worth, the Maryland
Dear all,
In the course of looking into something having nothing to do with
law-and-religion, I came across a web page, provided by Stanford
University's Office for Religious Life, entitled "A Word of
Warning." Here is a link:
http://religiouslife.stanford.edu/sar/warning.html
Here is the text:
d supervision" than about, say,
"government funded computers for use in teaching secular subjects in
parochial schools", or even "federal student loans for students
attending Notre Dame and majoring in Theology"?
Best,
Rick Garnett
At 01:51 PM 3/16/2005, Marty Lederman wrote:
I
th
n, by Chip Lupu and Bob Tuttle:
http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=29
Best wishes,
Rick Garnett
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lis
m (2003)).
I know that Marc Stern, Steve Green, and others have written powerfully and
well that the Blaine Amendments are more complicated than some of the
amendments' critics (including, perhaps, me) have appreciated. Still . .
. I'd welcome others' reactions.
Best,
Rick G
Dear all,
Nate Oman asked me to forward this to the list:
Eugene,
The issue in Payton is actually (not
surprisingly) narrower than portrayed by USA Today. It has to do
with the issue of whether or not Paton was entitled to an instruction
that under the rather inelegantly worded California dea
ot; Nor were they generally applicable, because they
"result in disparate treatment of religious activity by failing to prohibit
nonreligious conduct that endangers [legitimate] interests in a similar or
greater degree." Finally, the City's actions were found to flunk strict
scrutin
Dear all,
I'm coming to this discussion late, but this exchange between Bobby and
Eugene reminds me of a distinction that Michael Perry emphasizes (in his
latest book, "Under God") between the demands of the
Constitution and the demands of "political morality" (or, the
demands of "liberal democra
details of AJC's claims
and objections. My own view -- with the caveat that I have consulted
occasionally with Notre Dame's lawyers during the course of the litigation
-- is that Judge Kessler's ruling is vulnerable on appeal. I'd welcome
others' reactions, though.
B
unlikely
that Justice Thomas "intends the consequences" supposed by
Professor Newsom (I also think it unlikely that these consequences would,
in fact, accompany the "operationalization" of Thomas's view,
but -- of course -- I could be wrong), or that "Justice Thomas
his
views on the scope of the Commerce Clause -- are not likely to become
governing constitutional law. As Michael Perry likes to put it, the
incorporation of the Establishment Clause has become "bedrock." Still, is
there a reason why we should not concede that he is -- or, at leas
,
the provision would not exist, in my judgment,
but for the threats to American values that -- many believed -- were
posed by Catholicism. This connection is established in the
recent work of Hamburger, McGreevy, and many others. And, I believe
that the Court was too quick to dismiss it.
All tha
Dear colleagues,
Some on the list might be interested in a new "weblog" that a half-dozen
or so law professors -- including several list members -- have started,
"Mirror of Justice" (www.mirrorofjustice.com)
Here's the blog's "welcome" message, authored by the Dean Mark Sargent:
Welcome to Mi
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