Marty makes a fair point. But under pre-Smith jurisprudence, a federal mandate on the topic of contraception would not have been dreamed of either.
On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle) > amicus brief, I have become convinced that where RFRA(s) went "wrong" is > when advocates and judges started insisting--mistakenly, in the case of > federal RFRA--that it is more demanding than the pre-*Smith* Free > Exercise doctrine. Under that pre-*Smith *jurisprudence, the > contraception and antidiscrimination cases would not be close calls. And > if the Court were to hold (as it should) that RFRA does incorporate the > pre-*Smith > *jurisprudence, and does not go well beyond that law to impose an > "exceptionally demanding" test of the government (as the Court has > suggested in *Boerne *and *HL*), then RFRA (and state RFRAs) will once > again become far more palatable to a much broader coalition. But of > course, as Doug notes, if there's no prospect of prevailing in the > contraception and discrimination cases, then there won't be much impetus > for new RFRAs on the right. > > On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > >> The cases of the sort Michael describes (and that Chris Lund has >> described in public work) are still out there; they still happen. And the >> cases Paul Finkelman imagines, in which state RFRAs justify all kinds of >> discrimination against gays, are not out there. They have not happened. >> >> But gay rights and contraception are getting all the political and press >> attention. Both sides are to blame. Republican legislators who are only now >> getting around to enacting RFRAs didn't care about the generally small >> religious minorities in the cases that don't raise culture war issues. They >> and their predecessors weren't motivated to pass a RFRA back when all the >> other states were. They don't talk about those cases now, not because they >> aren't happening, but because they don't know about them and apparently >> wouldn't care if they knew. So they promise their base things about >> marriage equality that they can't possibly deliver. At the Republican >> debate in Houston, a reporter asked a long series of questions about >> religious liberty, and all he got from the candidates was gays and >> contraception. That's the only religious liberty issue they know about it. >> >> And then the other side plays off this rhetoric, and imagines horror >> stories with no basis in experience, and some that are beyond imagining. >> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels >> very much like a prelude to another Kristallnacht." Both real "arguments" >> that got reported in the press as though they were serious. >> >> If anyone needs a narrative about why RFRAs are still needed, just >> consider the Kansas woman who died for her faith for lack of a state RFRA. >> She was Jehovah's Witness, She needed a bloodless liver transplant. It was >> available in Omaha. It was even cheaper than a Kansas transplant with blood >> transfusions. But Kansas Medicaid doesn't pay for out of state medical >> care. Neutral and generally applicable rule. Kansas argued that the state >> constitution should be interpreted to mean Smith. By the time she won that >> lawsuit on appeal, her medical condition had deteriorated to where she was >> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy >> Authority, 252 P.3d 141 (Kan. Ct. App. 2011). >> >> Douglas Laycock >> Robert E. Scott Distinguished Professor of Law >> University of Virginia >> 580 Massie Road >> Charlottesville, VA 22903 >> 434-243-8546 >> >> ________________________________________ >> From: religionlaw-boun...@lists.ucla.edu [ >> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [ >> mich...@californialaw.org] >> Sent: Monday, March 28, 2016 7:01 PM >> To: Law & Religion issues for Law Academics >> Subject: Re: Arizona, Indiana . . . and now Georgia >> >> Unfortunately, for many, the entire spectrum of "religious liberty" in >> the United States appears to revolve around LGBT rights. That may, in >> fact, be the case for religious "majorities" who are not otherwise >> adversely affected by facially neutral state laws that infringe upon >> their religious practices and who cry "persecution!" at the slightest >> provocation. >> >> But going back to the original Smith case where members of a native >> American group were denied their unemployment benefits because of >> peyote use, the people who could really benefit from state RFRAs >> aren't just visible on the surface but are the minorities whose >> situations need to be "teased out" from between the social cracks. >> >> Certainly Antonin Scalia, lauded for his "conservative" credentials, >> is often forgotten in his role of drafting the Smith decision in the >> first place, although now it is the conservatives who are on the >> losing end of the latest social/legal developments and who now claim >> to be most in need of RFRA's protections. Nor is it lost that the >> original proponents of RFRA often came from the left, and as Professor >> Brownstein notes, the California RFRA was vetoed by a Republican in >> 1998. >> >> RFRA exists for religious minorities such as a Sikh teacher in a >> public school who wears religious garb as part of who she is, not to >> proselytize. It is to protect an Orthodox Jewish person who is forced >> by state law to take an exam on Saturday. And yes, it is to protect a >> native American who may lose employment benefits because he uses >> peyote as part of a religious ritual. >> >> To understand the full value of RFRA, one must look to members of >> religious minorities and observe when they are unintentionally >> adversely affected by neutral laws. Then an effort must be made to >> attempt to to try to accommodate them. These kinds of situations >> normally won't make the headlines, but it is at the heart of why RFRA >> matters. >> >> Michael Peabody, Esq. >> Editor >> ReligiousLiberty.TV >> http://www.religiousliberty.tv >> >> >> >> _______________________________________________ >> 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. > -- Michael Worley J.D., Brigham Young University
_______________________________________________ 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.
