Church is not an option

Sun Aug 19 20:51:33 PDT 2007

Some people believe that the gag rule violated the First Amendment Free Speech Clause.  If it didn't, then I don't see what is added by invoking either the Free Exercise or, even more dubiously, the Establishment Clause.  How is the state establishing a religion by saying that it chooses, as a matter of public policy, to maintain a "wall of separation" between public programs and the giving of religion-related information.  I take it that one of the things that Locke v Davey stands for, for better or worse, is that the state continues to have a great deal of discretion in how much it will allow the interpenetration of religion and public programs. 

sandy

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Scarberry, Mark
Sent: Sun 8/19/2007 3:50 PM
To: Law & Religion issues for Law Academics
Subject: RE: Church is not an option

The abortion gag rule did not violate the Establishment Clause. 

There also is a difference between the free speech and free ex rights of students, on the one hand, and the rights of govt employees or government contractors, on the other. I think, though, in this case the plaintiff may best be seen as essentially an employee. That makes the Est. Clause argument the key. I wonder whether the plaintiff pled a violation of the Establishment Clause? 

Mark Scarberry
Pepperdine

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Sanford Levinson
Sent: Sun 8/19/2007 12:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Church is not an option

I'm very sympathetic to the student in this case (assuming there are no surprises in the facts as they come out), but I do think that the Rust v. Sullivan chickens may be coming home to roost in this case.  If the doctor had no first amendment right to mention abortion, why in the world would the student have a FE or even a FA right to mention church groups in the face of a policy to the contrary.  To be sure, such a policy is indefensibly stupid, but why is it also unconstitutional, assuming the abortion gag rule is perfectly all right as a constitutional matter.  

sandy

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Steven Jamar
Sent: Sun 8/19/2007 11:58 AM
To: Law & Religion issues for Law Academics
Subject: Re: Church is not an option

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.

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-- 

Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
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