I have just posted some (probably controversial) preliminary thoughts on Hobby Lobby on Religion Clause-- http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html
Howard Friedman ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Monday, June 30, 2014 4:12 PM To: Law & Religion issues for Law Academics Subject: RE: Hobby Lobby Question The majority opinion gives ammunition to the plaintiffs in the nonprofit cases by reemphasizing that when the plaintiffs determine that a certain complicity violates their beliefs, the courts shouldn't find that too attenuated to be a burden. On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the insurer-pays) accommodation generally as the solution, and he seems not particularly enamored of the nonprofits' argument that the government can just pay for contraception with a new funding program. (The majority discussed that argument approvingly, and Kennedy joined the majority opinion in full; so it's one of those questions about parsing the opinion of a swing justice who also joined the majority opinion.) So isn't the Court pointing toward some form of the nonprofit accommodation with a different trigger. Are there reasons why the government can't adopt as a trigger the simple notice to HHS, the solution the Court adopted in the stay order in the Little Sisters case? Or was the government just waiting to see if it would win in Hobby Lobby? ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ---------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [dlayc...@virginia.edu] Sent: Monday, June 30, 2014 2:28 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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 30, 2014 10:54 AM To: Law & Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu<mailto:hle...@uga.edu> hillelle...@gmail.com<mailto:hillelle...@gmail.com> SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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