One of the blue law cases did involve a kosher butcher - I think it was named Crown Kosher
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
I stand thoroughly corrected! And, of course, there is no general category called “kosher clothes.� This is a good demonstration that it’s always a good idea
to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I’m glad I’m taking an exam in Chip’s course
J
sandy
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]
On Behalf Of Ira Lupu
Sent: Tuesday, March 25, 2014 5:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript
Braunfeld did not sell meat. From the opinion: "Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription
of the statute in issue."
On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V <slevin...@law.utexas.edu> wrote:
With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them),
but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would
no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant
way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their !
religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It
would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called "kosher paint."
sandy
Subject: Re: Hobby Lobby transcript
In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December:
> Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes
work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden.
>
> Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the "no employer mandate" argument turns on an empirical claim, at least if the cost differentials are not so significant
as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements.
Here's Justice Kagan (transcript p. 24):
> 15 JUSTICE KAGAN: Well, let's say that that's
> 16 right. Let's say that they have to increase the wages a
> 17 little bit. I mean, still we are talking about pretty
> 18 equivalent numbers. Maybe it's a little bit less; maybe
> 19 it's a little bit more. But this is not the kind of
> 20 thing that's going to drive a person out of business.
> 21 It's not prohibitive.
> 22 It's like the thing that we talked about in
> 23 Braunfeld where we said, you know, maybe if the store
> 24 can't stay open 7 days a week, it makes a little bit
> 25 less money. But so be it, is what we said.
If it works, I do think this argument raises factual questions that would have to be addressed on remand.
On Mar 25, 2014, at 4:19 PM, Marty Lederman <lederman.ma...@gmail.com> wrote:
> is here:
>
>
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354
> _5436.pdf
>
> Audio should be available later in the week.
>
> I'd be curious to hear what others who attended thought of the argument.
>
> I'll mention only three things of particular note:
>
> First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan
(which might well save them money).
>
> Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the
TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that
he had hinted at it on page 58 of the Hobby Lobby brief.
>
> Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that.
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
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