The holidays have made it difficult to keep up but I did want to respond to Michael. The notion that the distinguishing of Sherbert and Yoder were pure legal fictions in Smith is unpersuasive. With respect to Sherbert, the Court's reasoning is actually accurate and reflects the Court's understanding of Smith as a case of first impression as the Justice's Conference notes show.
The distinguishing of Yoder is unpersuasive but it appears the Court was reinforcing what Yoder was until RFRA -- an outlier. Literally the only case to apply strict scrutiny to a neutral, generally applicable law, with little or no precedential value. Its value is even more questionable today when children's interests would have to be taken into account and, therefore, Douglass's view would likely change the result, especially now that we have strong evidence of the harm done to Amish children by the failure to educate them. All of this matters, because it is my view that RFRA in these cases is as unconstitutional as it was in Boerne. The Court did not limit its reasoning to state law and relied explicitly on separation of powers. Politics, not the Court, transformed Boerne into a decision only relevant to state law. As I have said before, and may have missed either Eugene's or Marty's responses over the holiday, their debate is one the courts are ill-suited to decide. If the Court takes this approach, the mandate cases will be an excellent example of how RFRA turns courts into legislatures and makes them lawmakers (in the tradition actually of the Lochner cases where strict scrutiny was employed to permit the courts to second guess employment laws), without the competence to do so. The problem of course is that the DOJ has failed to attack RFRA's constitutionality but that is, once again, politics, not constitutional analysis. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 4:54 PM, Michael Worley <mwor...@byulaw.net> wrote: > You have a fair point; I'm uncomfortable with Reynolds, but that doesn't > mean there weren't less protections for religion pre-incorporation. However, > the distinguishing of Yoder and Sherbert (not to mention Cantwell) in Smith > is just a legal fiction Scalia made up. The Law Review article by James D. > Gordon III "Free exercise on the Mountaintop" illustrates well the problems > with the theory that Smith was right > > > On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton <hamilto...@aol.com> wrote: >> This reasoning is based on the mythology created around the free exercise >> clause by the reactions to Smith and the misrepresentations about the >> doctrine to Congress. It is quite remarkable this many years later so many >> continue to parrot what is in fact untrue. Yoder was an outlier and >> Sherbert was not applied outside unemployment. And the Justices thought in >> those terms during the Term Smith was decided. >> >> Now folks may well want a different regime than pre-Smith but it would be >> refreshing to see at least scholars (if not litigators) accurately discuss >> the actual doctrine and not the doctrine they prefer. >> >> The New York ACA case yesterday including indefensible reasoning on what >> RFRA is and what the doctrine was before. For example, the court cites to >> Michael mcConnell's article, for the proposition that mandatory exemptions >> were common at the time of the framing, a theory the Justices have rejected >> and Ellis West and Philip Hamburger have shown to be deeply flawed >> historically. In my own work on liberty vs licentiousness, it is abundantly >> clear the framers were far closer to the Smith way of reasoning than >> mandatory accommodation. >> >> Marci >> >> Marci A. Hamilton >> Verkuil Chair in Public Law >> Benjamin N. Cardozo Law School >> Yeshiva University >> @Marci_Hamilton >> >> >> >> On Dec 18, 2013, at 9:45 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.
_______________________________________________ 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.
