Church is not an option

[Steven Jamar]

Not a model of lucidity -- probably not so lucid in the pleadings  
either.


But back to the facts -- does this student/employee have free  
exercise claim?  The compulsion element (to the extent it really is  
an element) does indeed seem to be lacking.

Like Mark says, I'm drawn to the establishment claim on this -- and  
on that grounds it seems quite clear the school is not being neutral.

To shift the grounds a bit:  Can the school have an MSW-only  
counseling rule?  It is a school for a masters of social work.  Even  
if it is guild-motivated to maintain income (if the policy was refer  
only to social workers <rant>the de facto message of most MSW  
programs I've ever heard of</rant> would that be ok?), isn't that a  
generally applicable neutral policy?

They would not be stopping a counselor from using religion in the  
counseling session.

Steve



On Aug 19, 2007, at 12:25 PM, Scarberry, Mark wrote:

> The analyses in the various opinions puzzle me. Assuming the policy  
> of prohibiting mention of religious bereavement counseling options  
> was set up by a state actor, why doesn't that policy violate the  
> Establishment Clause? It's principal effect seems to be to inhibit  
> religion. Here the client had indicated a religious commitment; to  
> require the employee/student to ignore that information and to not  
> even mention the possibility of religious bereavement counseling is  
> actively hostile to religion. In effect it sets up a secular  
> orthodoxy in dealing with a matter that for thousands of years has  
> been an important part of religious practice.
>
> If the policy is impermissible under the Establishment Clause, then  
> Pickering test would not be applicable with respect to disciplining  
> the employee/student for violation of the policy; perhaps it would  
> be better to say that there would be no need to discuss the  
> employee/student's Free Speech rights, and thus Pickering would be  
> irrelevant. In addition, all the discussion about whether the  
> employee/student had a religious belief requiring that he mention  
> the religious bereavement option would be unnecessary, because  
> there would be no need to engage in a Free Exercise analysis.
>
> Mark Scarberry
> Pepperdine
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu on behalf of Joel Sogol
> Sent: Fri 8/17/2007 12:07 PM
> To: religionlaw at lists.ucla.edu
> Subject: Church is not an option
>
>
>
> Student dismissed from practicum for recommending church as an  
> option for bereavement counseling?
>
>
>
> http://www.ca11.uscourts.gov/opinions/ops/200513852.pdf <http:// 
> www.ca11.uscourts.gov/opinions/ops/200513852.pdf>
>
>
>
>
>
> Joel L. Sogol
>
> 811 21st Ave.
>
> Tuscaloosa, ALabama  35401
>
> ph (205) 345-0966
>
> fx (205) 345-0971
>
> email:  jlsatty at wwisp.com
>
>
>
> Ben Franklin observed that truth wins a fair fight - which is why  
> we have evidence rules in U.S. courts.
>
>
>
>
>
> <winmail.dat>
> _______________________________________________
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008	                          http://iipsj.com/SDJ/

"Politics hates a vacuum.  If it isn't filled with hope, someone will  
fill it with fear."

Naomi Klein


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