Thank you, Mark. I think that your subsequently posted argument that "The govt then functionally is arguing that there is a compelling interest in use of the form." bears on the category confusion I thought your post contained. (I'm not sure I'm persuaded, but that is a different question.)
David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jul 4, 2014, at 6:28 PM, "Scarberry, Mark" <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: David, No need for an apology. You have always been a gracious interlocutor. I think you've misread my post, but I probably won't be able to respond until tomorrow. Now, if I were Marty, I might just tell you to read my post. But I'm not, and I probably didn't write clearly. Perhaps my followup post was clearer. More tomorrow. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone -------- Original message -------- From: David Cruz Date:07/04/2014 6:13 PM (GMT-08:00) To: Law & Religion issues for Law Academics Subject: Re: Untangling the confusion of the Wheaton College order Is the government actually claiming it has a compelling interest in use of the form? If so, I apologize in advance to Mark for the following comment: I thought the form was a means toward an end, so one would examine the means for the requisite constitutional degree of tailoring. But the argument below sounds to me like Scalia’s doctrinal mush (treating means as ends) in his Adarand concurrence where he said “government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction.” David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: <Scarberry>, Mark <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, July 4, 2014 at 4:22 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Untangling the confusion of the Wheaton College order The administration has been willing to take substantial liberties with the provisions of the ACA. In any event, it is the regs that create the problem, right, by requiring use of the form? HHS can rewrite the regs; the govt can hardly claim that it has a compelling interest in use of the form if it can simply rewrite the regs so that the same substantive result can be obtained without use of the form. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad _______________________________________________ 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 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.
