Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps fiction of) the "compelling interest" test would have been maintained even as it became ever more clear that "compelling" was not to be interpreted with inordinate strictness. Instead, it is possible that we will get, courtesy of Justice Scalia and four allies, a remarkably wooden and divisive interpretation of RFRA that will have at least some of the consequences that Jon predicts. Perhaps they will split the baby, a la Bakker, and decide, as I think is Doug's position, that Hobby Lobby is entitled to be heard on its claim, but that it fails becauses there is in fact what they will accept a! s a "compelling interest' in favor of the contraception aspect of the mandate.
sandy -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 2:29 PM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz Eugene, I agree that "it would [not] be proper for him to take a different > approach because he wants people to "take a more nuanced view of him" > or because he wants to "convic[e] people that the Supreme Court > deserves respect." Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: > I'm still not sure I understand. Let's say Justice Scalia thinks -- > as seems quite plausible -- that the Free Exercise Clause is best > interpreted as not securing religious exemptions. And let's say that > he also thinks, as is also quite possible, that (1) there's no > constitutional bar to Congress's providing by statute what the Free > Exercise Clause does not itself provide, (2) it's not for secular > courts to second-guess claimants' sincere claims that the law violates > their religious beliefs, based on a judgment that those beliefs are > based on too "tenuous" causal connections, and (3) the proposed > exemption doesn't interfere with the rights and freedoms of others. > I > can't really see how it would be proper for him to take a different > approach because he wants people to "take a more nuanced view of him" > or because he wants to "convic[e] people that the Supreme Court > deserves respect." > > Now of course if there's a sound substantive argument for why, for > instance, RFRA is unconstitutional, then by hypothesis Justice Scalia > should be persuaded by it. But what would that argument be? > > Eugene > >> -----Original Message----- >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> boun...@lists.ucla.edu] On Behalf Of mallamud >> Sent: Sunday, June 08, 2014 9:44 AM >> To: religionlaw@lists.ucla.edu >> Subject: RE: Hobby Lobby/Ellen Katz >> >> People with whom I speak view Justice Scalia as a staunch >> conservative. >> They also associate deference to religion as a conservative position. >> If Scalia were to use what he obviously knows from his decision in >> Smith to deny religious exemptions based on tenuous connections where >> they interfere with the rights and freedoms of others, I think some >> people might take a more nuanced view of him. One small step in >> convincing people that the Supreme Court deserves respect because the >> Justices decide based on their best judgment of the good of the >> country and not on preconceived liberal or conservative biases. >> [Sub-point: Just as Scalia pointed to the wildly overwhelming >> majority by which Sec. 5 of the VRA was extended for 25 years, I feel >> that one reason for the enactment or RFRA, again, an overwhelming >> majority, stemmed from liberals' >> dislike of Scalia. Clearly not suitable as a decisional factor, but >> it undermines the statute in my personal opinion.] >> >> Jon >> >> On 2014-06-08 12:24, Volokh, Eugene wrote: >> > I appreciate the general concerns raised in Jon Mallamud's post -- >> but >> > I just don't see how items 1 to 5 lead to the conclusion in item >> > 6 >> > about Hobby Lobby. Could you elaborate, please, why it would not >> be >> > "wis[e]" for Justice Scalia to view RFRA as constitutional as to >> > federal laws, and as justifying Hobby Lobby's claims in this case? >> > The conclusion that the standard rejected in Smith is an unsound >> > interpretation of the Free Exercise Clause doesn't obviously mean >> that >> > Congress lacks the power to implement such a standard in a >> statute. >> > Maybe that is ultimately the correct conclusion, but I think that >> it >> > needs some more justification. >> > >> > Eugene >> > >> > Jon Mallamud writes: >> > >> >> 6. I find that the reasons behind Employment Division v. >> Smith >> >> (which I have come to believe stated the best rule) apply to the >> >> evils of using the standard rejected in Smith in applying all >> federal >> >> statutes. So in Hobby Lobby I would like to see Justice Scalia >> find >> >> a way to apply his wisdom rather than his past predilection to >> >> enforce statutes no matter what the result. I was upset when he >> >> failed to enforce limits to the Commerce Clause in extending >> federal >> >> law to state authorization of the use of medical marijuana. >> Perhaps >> >> some day I will get to see why he did that and come to appreciate >> his >> >> view as I have his views in Smith. >> > _______________________________________________ >> > 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. > > _______________________________________________ > 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. _______________________________________________ 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.
