"under pre-Smith jurisprudence, a federal mandate on the topic of contraception would not have been dreamed of either"
I don't know what this means. What does Free Exercise jurisprudence have to do with whether Congress requires health insurance plans to include preventive services? On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley <mwor...@byulaw.net> wrote: > 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. >
_______________________________________________ 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.
