Even Free Speech violations about time, place and manner get intermediate (heightened) scrutiny. My reading of Smith suggest Free Exercise claims do not.
On Wed, Dec 18, 2013 at 8:08 AM, Paul Horwitz <phorw...@hotmail.com> wrote: > I don't think it becomes the equivalent of the Ninth Amendment, or a > shell, without heightened scrutiny as a freestanding principle. And I say > that as a fan of the pre-Smith regime. Rather, it becomes an > equality/speech provision, like the rest of the modern First Amendment. I > am by no means a fan of that tendency. But it still leaves the clause as > something, not nothing. > > On Dec 18, 2013, at 9:01 AM, "Michael Worley" <mwor...@byulaw.net> wrote: > > And yet, without some form of heightened scrutiny, the free exercise > clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the > balancing right (I could make that argument, but I'm not), I'm saying that > we have to let judges do this balancing in some way. Otherwise the Free > Exercise Clause will become as important as the Ninth Amendment is to > contemporary jurisprudence. And *Employment Division*'s principles apply > to churches, not just the litigants in this set of cases. > > There are plenty of 14th Amendment cases (think *Brown *and subsequent > busing cases in lower courts) where judges have acted as > "super-legislatures." Why? To protect rights! > > Michael > > > On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton <hamilto...@aol.com>wrote: > >> This exchange, which shows both Marty and Eugene's high qualifications >> for public service, underscores how RFRA (and RLUIPA) turn federal courts >> into super legislatures and violate the separation of powers -- as Boerne >> ruled. No court in my view is institutionally competent to make these >> assessments and no judge, who is unaccountable to the electorate, should. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> On Dec 17, 2013, at 9:10 PM, "Volokh, Eugene" <vol...@law.ucla.edu> >> wrote: >> >> The heart of Marty’s argument (I focus for now on item 1 below) is, I >> think, an empirical claim: Large employers such as Hobby Lobby would be >> better off just dropping coverage, paying the $2000/employee/year tax, >> “us[ing] some of [the] enormous cost savings” to compensate employees for >> the lost coverage, thus keeping the employees happy, and then pocketing the >> rest of the “enormous cost savings.” (Indeed, if employees grumble over >> the inconvenience or just the change, the employers can split some of the >> rest of the enormous cost savings with the employees -- a win-win >> proposition for employers and employees.) And, if Marty is right, this >> would be true for employers generally, *not* just religious employers. >> We should thus expect a large fraction of savvy employers to take advantage >> of this option, purely out of respect for Mammon quite regardless of God. >> >> >> >> But I wonder whether this is empirically likely to be true, given not >> just the nondeductibility of the tax, but also other factors, such as >> payroll taxes on the compensation payment to the employees. It’s not >> surprising that the Justice Department hasn’t made this argument, since the >> Administration has long argued (unless I’m mistaken) that large employers >> *won’t* drop employer-based health insurance. And the Congressional >> Budget Office, >> http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, >> likewise took the view that only a tiny percentage of employers would drop >> their health insurance, because “the legislation leaves in place >> substantial financial advantages for many people to receive insurance >> coverage through their employers, and it provides some new incentives for >> employers to offer insurance coverage to their employees.” >> >> >> >> Now of course that was in 2011, and perhaps the analysis today would be >> different. But the CBO’s estimates still give me pause. And if the CBO is >> right, and large employers generally would lose financially -- rather than >> gain from capturing some of the “enormous cost savings” -- by dropping >> health insurance and adequately compensating employees, then I would think >> Hobby Lobby and others would be in the same position. The mandate, even >> enforced as a tax, thus would be a substantial burden. >> >> >> >> Am I mistaken in this? Marty, do you have any pointers to studies that >> support your sense of the money flows on this, and contradict what I see as >> the CBO’s view? >> >> >> >> Eugene >> >> >> >> >> >> Marty writes: >> >> >> >> 1. On your first point, even if the 4980H(a) tax were the equivalent of >> a $3000 assessment (because it's paid with after-tax dollars), the average >> cost for providing health insurance to employees is, as I understand it, >> closer to $10,000, so the employer would save about $7000 per employee. >> (In any event, there are no allegations in these cases that HL or CW is >> significantly differently situated than a typical employer, e.g., that they >> have a workforce comprised of almost all single employees with no family >> coverage.) >> >> >> In order to remain competitive for recruiting or retaining most of their >> employees, the plaintiffs wouldn't have to kick in any extra money in >> salary, because the employees would have their exchange-purchased plans >> subsidized by the federal government (both in terms of the cost-savings >> realized by virtue of the exchanges themselves as well as the government's >> premium tax credits and cost-sharing reductions. To be sure, some of their >> more well-compensated employees *might* have paid less in premiums for >> the HL plan than they would to purchase a plan on the exchange (*maybe*-- >> again, there's no allegation or evidence of that here). But to make up >> *that* hypothetical shortfall, and attract those employees, HL need only >> use some of its enormous cost savings to sweeten their salaries. (This is >> presumably what the many large employers who do not provide plans will >> do.) >> >> For all these reasons, it is difficult to imagine HL or CW --or, more to >> the point, the average large employer -- being financially *worse off*if it >> pays the assessment. (And again, there's no allegation of facts that >> would alter that conclusion here, in any event.) >> >> _______________________________________________ >> 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. >> >> >> _______________________________________________ >> 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. >> > > > > -- > Michael Worley > BYU Law School, Class of 2014 > > _______________________________________________ > 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. > > > _______________________________________________ > 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. > -- Michael Worley BYU Law School, Class of 2014
_______________________________________________ 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.
