Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc
From: Saperstein, David [mailto:dsaperst...@rac.org] Sent: Thursday, August 01, 2013 07:25 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, "Marci Hamilton" <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske <jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that "business corporations" would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably "no." The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be "yes" for race, "usually yes" for sex, and "TBD" for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546<tel:434-243-8546> From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law & Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: "Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA." Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception because the Supreme Court's pre-Smith jurisprudence that was being restored had already imposed limitations on exemptions in the commercial arena? I haven't studied the legislative history of RLPA, but I would have expected that argument to have been made (along with the argument that the Court's pre-Smith jurisprudence already found that preventing certain types of discrimination is a compelling state interest that can trump religious exemption claims). Best, Jim On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: By coincidence, I just posted a related piece, broader than Perry’s in some ways, narrower in others: http://papers.ssrn.com/abstract=2304427 The piece is framed in terms of the larger culture wars, and does not offer a full doctrinal analysis of the contraception litigation. But buried in the middle is a fairly detailed analysis of the recently published Final Rules on the contraception mandate, which also “tries to speak sanely.” _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
