Sorry to go way back in time to yesterday, but Chip wrote "The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement.
The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA "restores.")" Since then, a few replies in the thread have measured legitimacy by consistency, and it seems to me that this is an assumption shared by this list and many academics and public interest lawyers in general. Worrying about the legitimacy of the Court is definitely the correct worry, but legitimacy to who? With my apologies, but not regrets, it isn't the class of academics, op-ed writers, pundits, and other professional opinion-havers. The Court needs to be viewed as legitimate by the public first and foremost and the lawyers, clients, and support staff that function throughout the judicial system as a close second. While the views of the public and system actors will be shaped by academics and the press, in my experience the man-on-the-street is fairly willing to accept that different cases will justly result in different results. Even when struck with some sort of sub-optimal decision, most of them shrug it off the same way I shrug off the effect of bad referee calls in sports I don't follow (that is, all of them). A predictable system is preferable to an unpredictable system if and only if all else is equal, but in the messy world of facts the most predictable systems are often the most cruel. Americans demand both the uniform fairness of technocratic numbers and the nuanced sensitivity of a human decision maker. So long as the Court continues to spend so much effort and so many pages combing through precedent to justify their decisions, I suspect the public will be convinced enough. I too have strong opinions on how the case ought to shake out, but I've yet to see a compelling reason to be afraid that this is the decision that will sink the legitimacy of the court to the public in general, or any segment of it. -Kevin Chen On Mon, Jun 9, 2014 at 2:22 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > The first SCOTUS opinion interpreting RFRA was O Centro (2006), which was > unanimous, demanding in its statutory application, and a resounding defeat > for the government. O Centro surprised quite a few of us. > A student Note at 95 U. Va. L. Rev. 1281 (2009) argues that O Centro did > little to affect the ways in which the Courts of Appeals construed RFRA. > My own research of decisions suggests that little has changed since 2009. > Contraceptive mandate cases aside, RFRA claimants rarely win. Of course, > a weakly construed RFRA is not necessarily an inconsistently applied RFRA. > But if Hobby Lobby generates strong constructions of RFRA, and lower > courts go back to business as usual in RFRA cases not involving the > Affordable Care Act, the inference of lawless application of RFRA over time > will not be abated. > > > On Mon, Jun 9, 2014 at 2:09 PM, Douglas Laycock <dlayc...@virginia.edu> > wrote: > >> It would take an empirical study of the cases under each statute to >> confirm Hillel’s intuition that the ADA cases are less more consistent than >> the RFRA cases. My intuition would be the opposite – that the cases are >> probably equally inconsistent at least in the beginning, and quite possibly >> permanently. And if the ADA cases have become more consistent over time, it >> is only because there are so many more of them. >> >> >> >> Both statutes leave individual applications to the courts because >> individual applications are far too varied for the legislature to deal >> with. And in the RFRA context, there is the additional problem that it is >> almost impossible for legislators to act on principal with respect to >> unpopular religions. Enacting a general standard, and not addressing >> individual applications, was treated as a matter of high principle in the >> discussions leading to RFRA. >> >> >> >> The fundamental problem for both RFRA and the ADA is not just that they >> inevitably leave a range of discretion to judges, but also that some judges >> believe in the policy of the statute, and some do not. Each statute >> attempts to address the special needs of a minority group, and each imposes >> some costs on others. Those who are irritated or outraged by one of these >> statutes are rarely the same people who are irritated or outraged by the >> other. Each statute has experienced sympathetic interpretations and hostile >> interpretations, and it takes a lot of consistent appellate decisions to >> generate consistently sympathetic (or, not legitimate but nearly as likely) >> consistently hostile interpretations. And with RFRA, there just aren’t >> enough cases to generate such a body of appellate decisions.* Hobby >> Lobby* will the Court’s second opinion interpreting the Act in its 21 >> years of existence. >> >> >> >> >> >> Douglas Laycock >> >> Robert E. Scott Distinguished Professor of Law >> >> University of Virginia Law School >> >> 580 Massie Road >> >> Charlottesville, VA 22903 >> >> 434-243-8546 >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin >> *Sent:* Monday, June 09, 2014 12:59 PM >> >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: "Divisiveness" >> >> >> >> Chip: >> >> >> >> I am in total agreement of your analysis, except that I think there is a >> third way. That would be for legislatures to consider religious exemptions >> when they enact individual laws (as they did before Smith, and after as >> well). The results would still be inconsistent over time ((1) sometimes the >> legislature will grant an exception; sometimes it won't; and (2) courts >> will still have to resolve disputes on the margins), but at least they >> would have a majoritarian pedigree on the whole. >> >> >> >> We tolerate all kinds of legislative inconsistency because we understand >> that political interests change over time, issues that seem similar may >> appear different at the time of enactment, lobbying groups gain and lose >> power, the legislators themselves change over time, and so on. We don't >> demand consistency of legislators the same way we do of courts. Legislators >> are allowed to be inconsistent (within some broad due process/equality >> boundaries, I suppose). >> >> >> >> We could still quibble about the role of courts in this system. They'll >> still have to resolve some kinds of disputes, no doubt. Which side should >> they err on? Should their guiding principle be to force majoritarian >> engagement? Reverse the burden of legislative inertia? Etc. But at least we >> would have legislative guidance beyond "do good stuff when it comes to >> legislative exceptions," which is what RFRA yields. This abdication of >> policy-making responsibility by legislators is indefensible. >> >> >> >> Eugene can correct me if I'm mistaken, but I think his proposed >> common-law approach to religious exceptions points in this direction. >> >> >> >> >> >> >> >> >> >> >> >> >> >> On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu <icl...@law.gwu.edu> wrote: >> >> It's a very old lesson. Legislators support vague delegations aimed at >> some general good (clean air, workplace safety, endangered species), and >> claim political credit for doing so. Then they (or their successors) sit >> back and criticize agencies and courts that have to apply those vague >> standards to specific facts. Choices made from outside the veil of >> ignorance are inevitably much more difficult than those made from behind it. >> >> >> >> But I am making a further point. The context of religious exemptions -- >> because of all the variations among faiths (beliefs and practices) and all >> the variations among regulatory or other government contexts in which >> conflicts may arise, is uniquely vulnerable to the problem of >> irreconcilable inconsistency over time. We can have a regime of no >> exemptions under these kind of general standards, or a regime of ad hoc, we >> know it when we see it, all things considered, interest-balancing >> exemptions (that is, a regime that will appear lawless when scrutinized >> over time). I don't think there is any other choice. RFRA represents the >> latter choice, but (especially in a case made prominent by its culture war >> salience) the judicial outcome will inevitably be seen as an act of bad >> faith by the losers (whichever side that is). >> >> >> >> On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin <hillelle...@gmail.com> >> wrote: >> >> What's ironic to me is that the same legislators (I.e. All of them) who >> attack the courts for overreaching and making policy-decisions chose to >> bestow immense policy-making power on those same courts through RFRA. >> There's a legislative process lesson in there somewhere. >> >> >> >> On Monday, June 9, 2014, Ira Lupu <icl...@law.gwu.edu> wrote: >> >> It is worth recalling that federal RFRA itself was anything but divisive. >> Au contraire. It passed with overwhelming support from both parties, and >> wide support among civil rights and civil liberties groups (with Hobby >> Lobby under advisement, some of these groups are now running from RFRA like >> it was the plague). >> >> >> >> The problem now is not divisiveness, per se. Like any controversial >> Supreme Court decision, some will hate it and others will love it. >> Inevitably, these folks will be divided by their disagreement. >> >> >> >> The problem is legitimacy. Free exercise standards, pre-Smith, were >> incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and >> sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's >> concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has >> proven in the lower courts to be equally plastic at every turn. What is a >> substantial burden, a compelling interest, a less restrictive means? Does >> RFRA restore U.S. v Lee, including its dictum about commercial actors >> accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? >> (See the Kagan -- Clement colloquy at oral argument about what RFRA >> "restores.") >> >> >> >> The fussing over state RFRA's recently has reflected the same massive >> uncertainty over what they will be held to protect -- wedding vendor >> refusal to serve same sex couples? Employer refusal to provide spousal >> benefits to same sex spouses of employees? Let's just leave it to the >> courts (in these cases, state courts) is not reassuring to anyone. >> >> >> >> What I fear is that, whatever the outcome in Hobby Lobby, the losers will >> never believe that they lost based on any legal principle that will be >> applied consistently over time. Accordingly, they will believe that they >> lost only on culture war politics. Religious exemptions present many deep >> problems, including judicial appraisal of the religious significance of >> particular acts, but this problem of inconsistency (and therefore >> illegitimacy) over time seems particularly severe. >> >> >> >> On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene <vol...@law.ucla.edu> >> wrote: >> >> I appreciate Alan's attempt to cabin the "divisiveness" >> concept, but I wonder whether it works. Nothing is beyond the scope of >> political decision-making -- there is always the possibility of >> constitutional amendment, and, more importantly, so long as various >> decisions involve the contested interpretation of constitutional language, >> there is the possibility of using political processes to select Justices >> who will take a different view of the matter. Indeed, my sense is that >> some of the most prominent political divisions along religious lines have >> come with regard to decisions that aimed to take things off the table, but >> have failed to do so. Roe v. Wade is the classic example, though in some >> measure the various government speech decisions, from the school prayer >> case onwards, have had that effect as well. >> >> >> >> Now it may well be that other decisions have indeed settled matters in >> considerable measure, and thus diminished religious groups’ political >> mobilization as religious groups. But my guess is that it’s often not easy >> to predict which creates more mobilization of religious groups as religious >> groups: a particular executive or legislative policy decision, or a Supreme >> Court decision reversing that policy decision. >> >> >> >> Eugene >> >> >> >> > -----Original Message----- >> >> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> >> > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein >> >> > Sent: Sunday, June 08, 2014 7:37 PM >> >> > To: Law & Religion issues for Law Academics >> >> > Subject: RE: "Divisiveness" >> >> > >> >> > If divisive means that people will be upset by a substantive decision >> than Eugene >> >> > is clearly correct. I have always thought the issue was whether a >> decision was >> >> > one that provoked political divisions along religious lines in the >> sense that if >> >> > government could promote religion (or interfere with religion) >> religious groups >> >> > would have an additional incentive to organize and mobilize as >> religious groups >> >> > in order to make sure that it was their faith that the government >> promoted and >> >> > that it was not their faith that was subject to government >> interference. Placing a >> >> > church-state issue beyond the scope of political decision-making by >> subjecting it >> >> > to constitutional constraints avoided (or at least mitigated) these >> kinds of >> >> > political/religious divisions. >> >> > >> >> > There is probably a better term for this concern than divisiveness. >> >> > >> >> > Alan Brownstein >> >> >> _______________________________________________ >> 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. >> >> >> >> >> >> -- >> >> Ira C. Lupu >> F. Elwood & Eleanor Davis Professor of Law, Emeritus >> George Washington University Law School >> 2000 H St., NW >> Washington, DC 20052 >> (202)994-7053 >> >> Co-author (with Professor Robert Tuttle) of "Secular Government, >> Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> >> >> >> -- >> Hillel Y. Levin >> Associate Professor >> >> University of Georgia >> School of Law >> 120 Herty Dr. >> Athens, GA 30602 >> (678) 641-7452 >> hle...@uga.edu >> hillelle...@gmail.com >> SSRN Author Page: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 >> >> >> >> _______________________________________________ >> 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. >> >> >> >> >> >> -- >> >> Ira C. Lupu >> F. Elwood & Eleanor Davis Professor of Law, Emeritus >> George Washington University Law School >> 2000 H St., NW >> Washington, DC 20052 >> (202)994-7053 >> >> Co-author (with Professor Robert Tuttle) of "Secular Government, >> Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> >> >> _______________________________________________ >> 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. >> >> >> >> >> >> -- >> Hillel Y. Levin >> Associate Professor >> >> University of Georgia >> School of Law >> 120 Herty Dr. >> Athens, GA 30602 >> (678) 641-7452 >> hle...@uga.edu >> hillelle...@gmail.com >> SSRN Author Page: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 >> >> _______________________________________________ >> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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.
