I wonder if an implicit part of the Court's concern about underinclusion in O Centro is that there are constitutional concerns about religious equality and religious favoritism if the government grants an accommodation for one faith but denies it to another, arguably similarly situated, faith. Or to put it slightly differently, once the government recognizes that religious liberty concerns justify an accommodation from a particular law for a particular faith, the government has some burden to explain why those same religious liberty concerns do not justify an accommodation from the same law for a different faith. If I remember O Centro correctly (and its been a while since I read the Court's decision) the government was insisting that the mere fact that the tea that was used in the religious ritual was on the controlled substances list was a sufficient showing to establish a compelling interest in seizing the tea. At that level of generality, it is hard to accept that one faith deserves an exemption from the controlled substances law but another does not.
I don't suggest that this is the only basis for distinguishing O Centro and Hobby Lobby, but it may be part of the story. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Friday, July 04, 2014 11:56 AM To: Law & Religion issues for Law Academics Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"] Chris, I think you are exactly right on the merits of distinguishing HL from O Centro on this point (that grandfathering is a transition process, and peyote exception is permanent). The mystery to me is that no one on the Court, on either side, thinks it necessary to respond to the O Centro based argument from underinclusion, when that argument was so popular in the lower courts (including in the Tenth Circuit en banc in Hobby Lobby). They all just treat it like an embarrassing relative in the room, rather than the elephant it might have been. And that does raise a number of questions, including the force of O Centro on this point going forward. On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: Sorry, Chip, I sent my post before I got your previous post. Forgive me for that—I think I get what you mean: O Centro says the exception for peyote is enough to necessitate an exception for hoasca; Hobby Lobby rejects the grandfathered exceptions as enough to necessitate the religious for-profit exception. I don’t have much to say; maybe you’re right there’s some inconsistency here. But Marty has written on this before, and I’ve always thought him right: The grandfather exceptions are temporary, meant to ease the government’s interests in minimizing administrative burdens, ensuring coverage, and maintaining continuity of coverage. That’s enough to defeat the underinclusion argument in Hobby Lobby. If Congress’s approval of peyote for Native American religious believers had a sunset provision, I can’t imagine the Court would have relied on that very heavily in O Centro. I’m saying this without the Hobby Lobby opinions in front of me. Best, Chris From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Ira Lupu Sent: Friday, July 04, 2014 2:13 PM To: Law & Religion issues for Law Academics Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"] I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said the government's interests in maximizing coverage of pregnancy prevention services is not compelling. And they did NOT get that, which is why litigation will continue for years. I'm still asking whether the different treatment of underinclusion in O Centro and HL is sound as a matter of legal reasoning, or is based on something else. And I haven't seen an answer that responds in those terms. On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: I think Marty has it exactly right here. And I find it interesting how the Court sees RFRA largely as giving it greater leeway in deciding what counts as underinclusion. It’s not unlimited leeway, of course, for the reasons that Eugene gives. But if the issue was Free Exercise alone, I don’t think the exception for peyote would have mattered for hoasca (O Centro), or the exception for religious non-profits would count for for-profits (Hobby Lobby), or 40+ states making exceptions for beards would count for Muslims in Arkansas (the next case, Holt v. Hobbs). Those won’t count as exceptions for Free Exercise purposes, but they do count for RFRA purposes—or RLUIPA purposes, as in the last example. Continuing in this vein, it surprises me how RFRA analysis almost always proceeds the same way that Free Exercise Clause analysis proceeds: The challengers must find exceptions somewhere; what RFRA enables is a wider field of vision in deciding what counts as an “exception.” And In this sense, Hobby Lobby is a win for the government here. Hobby Lobby really wanted a decision that said that exemptions didn’t matter and that religious liberty simply trumped women’s access to contraception. That is very far from the Court’s actual reasoning. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu<mailto:l...@wayne.edu> (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: I don't think the HL Court does move away from the O Centro analysis on underinclusiveness. It treats the HHS "secondary accommodation" just as the O Centro court treated the marijuana exception--as a case in which the government could not explain why the reasons for creating that exception would not apply with full force to the requested exemption. The line the government had drawn, in other words, was arbitrary as far as the Court was concerned. On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Eugene's arguments here are very strong. Exceptions to federal laws are frequent, and sometimes based on weak policy reasons. But then what do we make of the unanimous decision in O Centro, in which the Court characterizes the peyote exception for members of Native American tribes as doing "appreciable damage" to the government's interest in limiting access to controlled substances, and therefore undermining the argument against a RFRA exception from the Controlled Substances Act for hoasca tea? In the lower federal courts, this move from O Centro was repeatedly cited in support of a conclusion that exceptions to the contraceptive mandate (primarily the grandfathering of pre-ACA plans) undermined the weight of the government's interest in denying a RFRA exception. What happened to that argument in Hobby Lobby? Was it just a makeweight, poorly reasoned argument to begin with? Or is there a difference between the O Centro context and the Hobby Lobby context that explains the move away from O Centro's treatment of underinclusion? On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I appreciate Mark’s argument, but I wonder how far it goes. Tax law is an excellent example. There may be “a very strong reason” for having many tens of millions of people pay no income tax at all. But I doubt that there’s a very strong reason for every single tax exemption out there. There are legitimate reasons, to be sure, plausible reasons, but not “very strong” ones, and maybe not even “strong” ones. And many might have seemed strong once, but now remain chiefly because of legislative inertia. Does the conclusion that there are not-very-strong reasons for some secular exemptions mean that there has to be a religious exemption? Likewise, consider the Copyright Act, which contains a prohibition on various uses of a copyrighted work in sec. 106, and then about 15 sections starting with sec. 107 setting forth exemptions; many of those sections have quite different subsections, so there are dozens of exceptions. For some, there may be a very strong reason, but for others it’s the result of political deals for the benefit of often small groups, sometimes decades or even a century ago. Does it follow that anyone who has a religious objection to copyright law is entitled under RFRA to an exemption? Eugene Mark Scarberry writes: Jim's analysis is very helpful. Now to disagree with him and others on one point: On the relevance of gross underinclusion for the compelling interest question, I'd think it would matter whether there is a strong reason for the underinclusiveness. If not, then it would call into question the govt's own view of the importance of the interest. With regard to lots of people not paying income tax, there is a very strong reason for tailoring a progressive income tax so that people with little income pay little or no income tax. Also, the purpose of a progressive tax system is not just to raise money, but to do so in a way that meets social goals directly related to the progressivity. There doesn't seem to be any similar reason, for example, that justifies the grandfathering of plans under the ACA. _______________________________________________ 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. -- 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<tel:%28202%29994-7053> 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<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. -- 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<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. -- 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<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. -- 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.
