Court upholds prison no-pork policy against Establishment Clause challenge

Thu Apr 12 14:51:57 PDT 2012

By the way, I agree that imposing a religious practice on everyone else is deeply problematic. Perhaps justifable in the prison context, where many rights have been forfeited anyway. But a ban on the sale of pork in the civilian economy could not be justified as a religious exemption. 

On Thu, 12 Apr 2012 21:38:41 +0000
 "West, Ellis" <ewest at richmond.edu> wrote:
>I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet.
>
>Ellis M. West
>Emeritus Professor of Political Science
>University of Richmond, VA 23173
>804-289-8536
>ewest at richmond.edu
>
>From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of West, Ellis
>Sent: Thursday, April 12, 2012 5:21 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge
>
>Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue.  Suppose these two laws did not exist.  Then would the prison policy in question be secular in nature?  The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons.  For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners.
>
>Ellis M. West
>Emeritus Professor of Political Science
>University of Richmond, VA 23173
>804-289-8536
>ewest at richmond.edu<mailto:ewest at richmond.edu>
>
>From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu]<mailto:[mailto:religionlaw-bounces at lists.ucla.edu]> On Behalf Of Ira Lupu
>Sent: Thursday, April 12, 2012 4:36 PM
>To: Law & Religion issues for Law Academics
>Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge
>
>Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me.
>On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis <ewest at richmond.edu<mailto:ewest at richmond.edu>> wrote:
>Although the District Court may be correct in saying that the primary purpose of the policy is not "to establish the religion of Islam" or to "promote the practice of Islam," it does concede that the policy "makes accommodating a multitude of religious practices and beliefs easier and more economical."  Would someone explain to me how that purpose and/or effect is "secular" in nature?  Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature.  How so?
>
>Ellis M. West
>Emeritus Professor of Political Science
>University of Richmond, VA 23173
>804-289-8536<tel:804-289-8536>
>ewest at richmond.edu<mailto:ewest at richmond.edu>
>
>From: religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu> [mailto:religionlaw-bounces at lists.ucla.edu<mailto:religionlaw-bounces at lists.ucla.edu>] On Behalf Of Ira Lupu
>Sent: Wednesday, April 11, 2012 7:32 PM
>
>To: Law & Religion issues for Law Academics
>Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge
>
>Is this outcome surprising in any way?  Does anyone on the list believe that the court got this wrong? (I certainly don't).
>
>If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation?
>On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
>River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf .
>
>Eugene
>
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>--
>Ira C. Lupu
>F. Elwood & Eleanor Davis Professor of Law
>George Washington University Law School
>2000 H St., NW
>Washington, DC 20052
>(202)994-7053<tel:%28202%29994-7053>
>My SSRN papers are here:
>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>_______________________________________________
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>--
>Ira C. Lupu
>F. Elwood & Eleanor Davis Professor of Law
>George Washington University Law School
>2000 H St., NW
>Washington, DC 20052
>(202)994-7053
>My SSRN papers are here:
>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
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