Religion & Law: Fall 2011

RELIGION & LAW: FALL 2011

DISCUSSION QUESTIONS &

OTHER SUPPLEMENTAL MATERIALS

UNIT I: INTRODUCTION

INTRODUCTORY DISCUSSION QUESTIONS

1.01: In the Volstead Act implementing prohibition (the nationwide ban on the sale of alcoholic beverages), Congress created an exception for alcohol used as part of religious rituals. As a matter of policy:

(a) What are the problems with creating such as exception?

(b) What would be the problems with refusing to create such an exception?

1.02: How would your analysis of question 1.01 change if the issue was an exception for religious objectors to a requirement that all children of a certain age receive a particular inoculation?

1.03: State and local governments have generated controversy by posting copies of the Ten Commandments in public places. Look carefully at one or more versions of the Ten Commandments (for multiple variations, see, e.g., Wikipedia). As a matter of policy:

(a) What problems arise from posting the Ten Commandments? Do some of the commandments raise more problems than others?

(b) What legitimate reasons might a state or local government have for posting the Ten Commandments?

(c) Identify several different contexts in which a state or local government might post the Ten Commandments and be prepared to discuss why the answers to (a) and (b) might vary with the context.

Z [ R U Y

NO RELIGIOUS DECISIONS: DISCUSSION QUESTIONS

1.04: In Ballard, what is the difference between the majority and the dissent positions? Who has the stronger argument?

1:05: Why does the Court in Presbyterian Church reject Georgia’s approach to resolving the property dispute in question? How might a state court resolve such a dispute in a way that is consistent with the Court’s opinion?

1:06: Why isn’t it relevant in Thomas …

(a) that the claimant’s religious beliefs had changed?

(b) that not all Jehovah’s Witnesses share the claimant’s beliefs?

1:07: According to the Chapter Summary at V230-31, courts cannot decide whether particular beliefs are “central” or “important” to a claimant’s belief system. Does this necessarily follow from the cases in this section? Is this consistent with the requirement found in both RFRA and RLUIPA that, to get relief, claimants must demonstrate that the challenged government action “substantially burdens” the exercise of their religion?

1:08: In what ways can you characterize the issues raised in this section as arising under the Free Exercise Clause? In what ways can you characterize these issues as arising under the Establishment Clause?

1:09: Under the cases in this section, could a court enforce a provision in a will granting property to a person “so long as [s/he] remains a member in good standing” of a particular religious denomination.

1:10: What concerns would arise under the cases in this section if a state tries to prohibit food manufacturers from fraudulently designating food sold to consumers as “Kosher”? Can you identify approaches for the government to address this problem that would eliminate (or at least minimize) the Constitutional concerns?

1:11: What concerns would arise under the cases in this section if a state allowed a cause of action against a church organization for negligent hiring or supervision in the circumstances described in the problem? Are there ways to limit the cause of action to eliminate (or at least minimize) the Constitutional concerns?

Z [ R U Y

UNIT II. THE NON-DISCRIMINATION PRINCIPLE

NO DISCRIMINATION AGAINST RELIGIOUS PRACTICES:

DISCUSSION QUESTIONS

2.01: The summary of doctrine on V7 states that government discrimination “based on the religiosity of the conduct must pass strict scrutiny.” This means that the discriminatory act is allowed if it’s “narrowly tailored to a compelling government interest.” What is your understanding of what this test means in practice?

2.02: Justice Brennan in McDaniel (V14) and Justices Blackmun and O’Connor in City of Hialeah (V25) argue that intentional discrimination against religion is per se unconstitutional. What is the difference between this position and strict scrutiny? Can you think of cases where the difference should matter (i.e., where the discriminatory act should survive strict scrutiny)?

2.03: Both McDaniel and Locke suggest that, in some circumstances, the government’s attempts to avoid conflicts with the Establishment Clause can constitute a “compelling government interest.” What are the Establishment Clause concerns raised by the two cases? What do the cases say about when those concerns might be sufficient to justify discrimination against religious conduct?

2.04: On V27, the majority opinion in Locke notes that the burden on religion created by the government program at issue is relatively mild. What is the legal significance of this observation in that case? What do McDaniel and City of Hialeah suggest is the significance of the extent of the burden on religion?

2.05: McDaniel strikes down a statute forbidding members of the clergy from holding public office. Locke upholds a program forbidding people who wish to become members of the clergy by studying Theology from receiving a particular state scholarship. Do the differences between the two cases justify the difference in result?

2.06: Unlike the government acts at issue in McDaniel and Locke, the challenged ordinances in City of Hialeah did not explicitly mention religious categories like “ministers” and “theology.” Thus, the Court had to examine whether the intent underlying the ordinances was discriminatory. What evidence from the circumstances surrounding the adoption of the ordinances did the Court find relevant to this issue?

2.07: In what ways did the Court find the ordinances in City of Hialeah to be over- and under-inclusive? How are over- and under-inclusiveness relevant to the determination of the city’s intent? How are they relevant to the application of strict scrutiny?

2.08: Your city recently passed an ordinance against killing any bird or mammal without stunning it first. As written, this ordinance will prohibit kosher slaughter of animals in the city. An Orthodox Jewish client comes to your office and asks if he can make a successful claim that the ordinance violates his religious freedom. What additional information would you want to know to better evaluate how likely his claim is to succeed?

2.09: A Santeria practitioner is arrested for cruelty to animals because he was transporting animals to a ritual and he left the animals in his car for half an hour in 90 degree weather, while he was waiting for the ritual to begin. What additional information would you want to know to determine how this case should be resolved? In what ways is this case distinguishable from City of Hialeah?

2.10: A group of Santeria practitioners conducted a ceremony involving the sacrifice of several chickens. The ceremony was a protection ritual for the seven year old daughter of one of the practitioners. The daughter witnessed the animal being killed. A child services caseworker learned of this ceremony and removed the child from the practitioner’s home. The practitioner/parent was arrested and charged with felony child endangering based on the theory that witnessing the ritual killing of an animal caused the child harm. Based on City of Hialeah, how would you argue that the removal proceeding and the criminal case should be resolved?

2.11: Under the cases in Unit IIA, how would you structure your analysis of Problem 2A? What arguments would you make from the cases?

2.12: How might you redraft the statute at issue in Problem 2A to achieve some of the original statute’s goals while limiting the constitutional concerns?

2.13: Under the cases in Unit IIA, how would you structure your analysis of Problem 2B? What arguments would you make from the cases regarding the constitutionality of the D.C. statute?

2.14: The Florida statute in Problem 2B is worded differently from the D.C. Statute. What legal significance might the different language have?

2.15: Identify any significant factual distinctions between Locke and the tax exemption at issue in Problem 2C. Do any of these distinctions support a different result as a matter of policy?

2.16: Try to articulate at least three possible post-Locke rules for when an express burden on religious practice is allowable under the Free Exercise Clause. Apply your rules to the tax exemption at issue in Problem 2C. Are any of the distinctions you identified in DQ2.15 relevant to your legal analysis?

2.17: What do you believe would have been the likely practical effects of the “fifty per cent rule” at issue in Larson? Are there types of religions that would be more likely to have received the exemption? How would the rule have affected particular religions about which you have some information?

2.18: Why did the majority in Larson conclude that strict scrutiny was the appropriate standard of review? Why did they conclude that the “fifty per cent rule” did not survive strict scrutiny? What is the legal significance of Part IIIC of the opinion (V38-39)? Would a rule exempting religions whose total contributions was under a particular dollar amount survive under the majority’s analysis?

2.19: In Part A of Justice White’s dissent, with what aspect of the majority opinion does he take issue? What aspect in Part B?

2.20: How is Larson distinguishable from Locke v. Davey? Would it make sense to characterize the program at issue in Locke as “preferring” religious denominations that do not require their clergy to get degrees in theology?

2.21: The regulation at issue discriminates on its face against all religions except the NAC. What purposes might the government claim support the way the regulation is drawn? Could it pass strict scrutiny?

2.22: Should sect-specific laws ever be allowed?

2.23: In what ways do the dissenting opinions in Zorach characterize the program at issue differently from the majority? How do the differences affect the legal analysis? Whose description seems most convincing?

2.24: What is the significance to the Zorach majority opinion of the last two full paragraphs on V45? Of the paragraph on V46 beginning, “We are a religious people….”?

2.25: In Zorach, the plaintiffs were parents and taxpayers challenging the program generally. Would the result change under the majority’s analysis if the program were challenged by parents who wanted to use same time to get their children instruction in a language not taught by school or specialized athletic training? Should the result be different?

2.26: What arguments do you see about whether Zorach is distinguishable from Torcaso?

2.27: Does the plurality in Welsh simply interpret the statute or does it find that the statute would be unconstitutional as interpreted by the SSO? If the latter, is that consistent with Zorach?

2.28: Justice White’s dissent in Welsh seems to argue that Congress can treat religion different from non-religion to further Free Exercise rights. Do you agree? What problems might this create?