Law Review: Dramatically Narrowing RFRA’s Definition of “Substantial Burden” in the Ninth Circuit

    Dramatically Narrowing RFRA’s Definition of “Substantial Burden” in the Ninth Circuit–The Vestiges of Lyng v. Northwest Indian Cemetary Protective Assocation in Navajo Nation et al. v. United States Forest Service et al
    Zackeree S. Kelin and Kimberly Younce Schooley, 55 S.D. L. Rev. 426 (2010)

    “A thorough examination of Navajo reveals that the Ninth Circuit’s narrow interpretation of ‘substantial burden’ stems from the overstated policy concerns articulated in the pre-Smith case of Lyng v. Northwest Indian Cemetery Protective Association and is inconsistent with the religious freedom protections found in Sherbert v. Verner and Wisconsin v. Yoder that RFRA sought to restore. Furthermore, the case exposes the tension that results when protection of land-based religious beliefs is evaluated in a nation built on an ownership-based Western approach to land. The Ninth Circuit seemed uncomfortable with the proposition of extending RFRA’s protections to the way in which Native Americans worship, i.e., where essential elements needed to practice these religions – land and other natural resources – are controlled by the government. As a result of what appears to be a policy-driven outcome, many more religious freedom claims outside the context of Native American religion will be cut off, as the triggering mechanism for application of the compelling interest test is now far more difficult to satisfy in the Ninth Circuit.”


  • Posted: 09/14/2010
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  • Category: Religious Liberty

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9th Circuit dismisses ACLU case asserting torture by C.I.A.

Imperial County fights for spot in Prop 8 debate

Conservative group throws Hail Mary pass on Prop 8

Legal group seeks to compel Calif to defend Prop 8

Ninth Circuit protects para-church ministries – really!

Christian Examiner: FAQs on Prop 8, California’s contested marriage amendment

Greg Baylor: Are you sitting down? 9th Circuit delivers favorable religious freedom decision

Court reinstates evangelist’s defamation suit against ABC

The government’s new right to track your every move with GPS

    Yahoo (TIME): “Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn’t violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway – and no reasonable expectation that the government isn’t tracking your movements. That is the bizarre – and scary – rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants – with no need for a search warrant.”

    United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. January 11, 2010)

    Yesterday, the denial of rehearing en banc was entered, with Judge Kozinksi dissenting, with four others.


  • Posted: 08/25/2010
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  • Category: Miscellaneous
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  • Source: news.yahoo.com

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“The Pope is not a pedicurist”

Court rules World Vision can require employees to be Christians

Greg Baylor: Update on CLS v. Hastings

When may religious charitable groups discriminate in employment based on religion?

Maggie Gallagher: Chuck Cooper strikes back

9th Circuit panel for Prop 8 appeal won’t be known for months

What makes Arizona such a hotbed of high court action?

CA marriage on hold, appeal sped up

“Marriage equality advocates react to latest legal round”

“Gay marriage,” a constitutional right or “tyranny of elitists?”

9th Circuit: Stolen Valor Act unconstitutional

    Law.com: “A three-year-old federal law that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military is unconstitutional, a federal appeals court panel in California ruled Tuesday . . . A panel of the 9th U.S. Circuit Court of Appeals sided with [Xavier Alvarez] in a 2-1 decision Tuesday, agreeing that the law was a violation of his free-speech rights. The majority said there’s no evidence that such lies harm anybody, and there’s no compelling reason for the government to ban such lies.” USA v. Alvarez, No. 08-50345 (9th Cir. Aug. 17, 2010)


  • Posted: 08/18/2010
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  • Category: Miscellaneous
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  • Source: www.law.com

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How 1997 ruling might thwart Prop. 8 appeal

Rick Hasen: Reading the tea leaves on the 9th Circuit’s stay order

    Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School, writing at the American Constitution Society blog: “I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit’s order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit’s decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters . . . This case already has had more than its share of twists and turns. But for those who want to predict what will happen in the appellate courts, there’s really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.”


  • Posted: 08/18/2010
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  • Category: Marriage & Family
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  • Source: www.acslaw.org

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“Delay on gay marriage in Calif. gives Democrats room to focus on midterms”

TIME: New legal strategy for Prop 8 supporters

National Review Online: “Gay marriage on hold”

No same-sex “marriages” in California until appeal

“Gay marriages” halted; case fast-tracked

Attorney: Ninth Circuit makes “right call”

9th Circuit agrees to fasttrack same sex “marriage” hearing

Appeals court stays Prop 8 ruling

Pro-marriage groups laud Ninth Circuit’s emergency stay of Prop. 8 ruling

SCOTUS Blog commentary: 2nd Prop. 8 case expedited

    SCOTUSblog: “The Ninth Circuit Court on Tuesday morning ordered an expedited review of a second appeal on California’s Proposition 8 ban on same-sex marriage — a plea by local officials in Imperial County, Calif., to enter the case in order to defend the ballot measure’s constitutionality. The motions panel of the Circuit Court, in a two-page order, set the county’s appeal to be heard at argument along with the appeal by the backers of Proposition 8 — that is, during the week of Dec. 6. The written briefing schedule will be the same in both cases, concluding on Nov. 1.”


  • Posted: 08/17/2010
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  • Category: Marriage & Family
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  • Source: www.scotusblog.com

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US conservative Christians fear for rights

Another issue emerges in CA’s “gay marriage” case

Ed Whelan: Some reflections on 9th Circuit stay order

Ed Meese: Prop. 8 ruling ignores precedent, evidence and common sense

Dennis Prager: Same-sex “marriage” and the insignificance of men and women

“Gay marriage” back on hold during appeal on Proposition 8 decision

“Gay-marriage” ban to continue indefinitely

Same-sex “marriages” placed on hold in California

Federal appeals court stops California same-sex “marriages” from resuming

Federal Appeals Court intervenes in Prop. 8, halts California “gay marriages”

Federal panel puts same-sex “marriage” on hold as appeal of Prop. 8 ruling goes forward

Legal focus in Prop. 8 “gay marriage” battle: Who has right to fight?

Court halts Calif. “gay marriages” pending appeal

Now California puts “gay marriage” on hold indefinitely as court decides whether they should go ahead

Prop. 8: Appeals court puts ruling on hold

Appeals court puts “gay marriages” on hold, sets December hearing

Jonathan Adler: More on standing to defend Prop 8

    Jonathan H. Adler writing at The Volokh Conspiracy: “I think that the defenders of Proposition 8 do have standing to appeal the decision, just as they had standing to intervene, and that even if they do not, the officials of Imperial County would, and should have been permitted to intervene. Although I generally support a rather narrow view of standing, I largely agree with Michael Dorf that it would be anomalous were state officials able to effectively nullify state ballot initiatives simply by refusing to defend such initiatives in Court. Further, I think the interest of the proposition’s defenders on appeal is equivalent to that of an initiative’s sponsors who could file suit to ensure their initiative appears on the ballot in the first place.”


  • Posted: 08/16/2010
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  • Category: Marriage & Family
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  • Source: volokh.com

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CA: “Businesses await marriage windfall”

L.A. County Registrar’s office in Norwalk to stay open late Wednesday for same-sex “marriages”

Judges decision on motion for stay appealed by defenders of California marriage amendment

Oakland Tribune editorial: Let appeal of Proposition 8 proceed

African Americans react, agree with, denounce Prop 8 ruling

Lyle Denniston: Who speaks for California on Prop 8?

    SCOTUSblog: “California’s Attorney General, Edmund G. Brown, Jr., formally notified the Ninth Circuit Court Friday night that the state will not appeal a federal judge’s ruling striking down the Proposition 8 ban on same-sex marriage. That position, along with a flurry of other filings in the Circuit Court, puts new emphasis on a basic issue: can anyone else carry on the case? And that comes down mainly to a question of state law: who speaks for California, legally? . . . Adding another element to the controversy over who may appeal is a claim by the local governing body of Imperial County, Calif., and its marriage licensing officer that they have their own, independent right to pursue an appeal. In a filing Friday in their own, related case pending in the Circuit Court, they asked to be allowed to support the Proposition 8 backers’ plea for postponement.”


  • Posted: 08/16/2010
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  • Category: Marriage & Family
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  • Source: www.scotusblog.com

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Erwin Chemerinsky: Who has standing to appeal Prop. 8 ruling?

Why California “gay marriage” ruling may not head to US Supreme Court

Vaughn Walker, California judge, doubts Prop 8 supporters can stop same-sex “marriage”

“Sweeping clarity undoes Prop 8″

“Is the GOP becoming the Gay Old Party?”

9th Circuit Judges move quickly on Prop. 8

Could Prop 8 case fizzle before reaching Supreme Court?

    Blog of LegalTimes: “[T]he possibility is real that the case might never make it on appeal all the way to the Supreme Court. That’s because the advocates of Prop 8, who are launching the appeal, may not have the necessary ‘standing’ to carry it forward. The case is titled Perry v. Schwarzenegger, with Gov. Arnold Schwarzenegger and other officials in the position of defending the ballot initiative. But those officials, who are sympathetic toward gay marriage to varying degrees, are not inclined to appeal Walker’s ruling . . . Cornell Law School professor Michael Dorf, while sympathizing with Walker’s decision, wrote recently on his blog that a good argument can be made for standing when state officials are reluctant to defend a successful ballot initiative.”


  • Posted: 08/13/2010
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  • Category: Marriage & Family
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  • Source: legaltimes.typepad.com

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“Judge doubts gay marriage ban’s backers can appeal” – Dale Carpenter comments

“Judge doubts gay marriage ban’s backers can appeal”

What’s next for Proposition 8 case?

State officials step aside for Prop. 8′s demise

Attorneys: Calif. voters losers in Prop. 8 ruling

Judge: Prop. 8 backers might not have legal standing to appeal

Prop. 8 judge lifts stay, but same-sex “marriages” still on hold

Federal judge denies motion to stay Calif. marriage ruling

Calif. judge lifts stay, permits “gays” to marry Aug. 18

“Same-sex marriages to resume in California on Wednesday”

First a victory, now a war