I also used to think that RFRA calls for improper judicial lawmaking (though not unconstitutional lawmaking). But I then changed my views, for reasons I described in more detail in my "Common-Law Model for Religious Exemptions" piece, http://www.law.ucla.edu/volokh/relfree.pdf.
Here's the short version: The problem with the Lochner line of cases isn't that courts were lawmakers. Most of American law -- tort law, contract law, evidence law, criminal law, and more -- was initially made by courts. (To be sure, they were mostly state courts, but federal courts created the federal law of evidence and civil procedure, developed federal admiralty law, developed and still develop criminal law defenses, and so on.) To this day, this judicial lawmaking continues. And sometimes Congress specifically authorizes courts to continue engaging in such lawmaking, most prominently in the federal law of evidentiary privileges, but also in fair use and some other areas. The key difference between this and Lochner is that courts are entitled to make the law, including by developing exceptions from statutory duties (e.g., criminal law defenses, testimonial privileges, and the like), but *with the possibility of legislative override*. RFRAs, federal and state, fit well within this mold. They involve a legislature's decision that, while the legislature is happy creating some generally applicable obligations, they want to leave it to courts to develop certain exceptions from those obligations -- much like courts developed other legal rules in the past -- subject to later revision by the legislature. And I don't see what's unconstitutional, or even bad institutional allocation of power, about that. Eugene Marci Hamilton writes: 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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<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. -- Michael Worley BYU Law School, Class of 2014 _______________________________________________ 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. -- Michael Worley BYU Law School, Class of 2014 _______________________________________________ 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.
