RE: Contraception mandate
IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern 0From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Thursday, August 01, 2013 10:02 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Contraception mandate I know I'm not the listmod, but could we please keep the posts on topic for the listserv? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Aug 1, 2013, at 6:32 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: No, Marci. You personalized this. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 5:20 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Contraception mandate I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. ___ 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.
Re: Contraception mandate
Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit *corporations *can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was *not* a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ** ** ___ 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.
Re: Contraception mandate
My point yesterday is that the Coalition am the ACLU are not both sides. Far from it Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 12:09 PM, James Oleske jole...@lclark.edu wrote: Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit corporations can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was not a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ___ 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.
Re: Contraception mandate
Here are some unassailable facts about RFRAs enactment that make 1997 too late to bring for profit corps under RFRAs intended reach 1. The vast majority of RFRA's Legis history is not about its actual content but rather testimony critical of Smith and the Supreme Court. 2. The Coalition had an express agreement not to tell members or the press what particular laws each hoped to overcome. They needed to stay mum on their individual agendas to remain at the table together. 3. The abstract constitutional law level of scrutiny formula drove discussion away from specifics. 4. No one remotely hinted that it would be applicable to for-profit corporations or that there was any corporation in the US intent on avoiding laws through RFRA 5. Had the ACLU, Americans United, and People for the American Way and the Democrats understood RFRA at the time as the anti-civil rights bill the 10th Cir found it to be, it would have gone nowhere. Inconceivable. One of its virtues for members was anything loved by the left and right had to be good. 6. RFRA's feel-good, opaque formula led members not to challenge the lobbyists to explain its actual impact. The few examples involved a minyan and autopsies. Nothing in this history supports a claim that RFRA was intended to cover for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 12:09 PM, James Oleske jole...@lclark.edu wrote: Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit corporations can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was not a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ___ 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
Re: Contraception mandate
That strikes me as a perfectly fine argument, but one that goes to the question of whether there actually were any relevant common understandings of the language in 1997, not the question of whether the 1997 legislative history would be irrelevant even if such understandings actually existed. Of course, when courts look for common understandings in legislative debates, they tend to look to the evidence on the record and not unarticulated positions. The House report, both sets of dissenting views in the report, and testimony from multiple opponents of the bill all assume individuals running businesses like landlords could invoke RLPA. Is there anything on the record running contrary to this apparent common understanding? If not, I tend to think that the RLPA legislative history, combined with Lee, makes it very difficult to argue that all for-profit commercial activity is categorically excluded from RFRA protections. Less clear is whether for-profit corporations are categorically excluded (I see Marci has sent a separate email arguing that inclusion of for-profit corporations was not contemplated during the original RFRA debate; if that's correct, when combined with the ambiguity of the 1997 legislative record on the issue, I'd be inclined to conclude that neither the legislative history of RFRA or RLPA is of very much help on the corporate-coverage issue). Even less clear is, assuming for-profit corporations are not categorically excluded from RFRA, how might protection for those corporations nonetheless be limited by the commercial activity language in Lee (the issue the Hobby Lobby court neglected to address -- which brings me back to where I started, and where I should probably step out of this discussion for the time being). Best, Jim On Fri, Aug 2, 2013 at 9:22 AM, Marci Hamilton hamilto...@aol.com wrote: My point yesterday is that the Coalition am the ACLU are not both sides. Far from it Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 12:09 PM, James Oleske jole...@lclark.edu wrote: Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit *corporations *can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was *not* a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ** ** ___ 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
A note from the conlawprof moderator -- Re: Citations to Listserv posts/Contraception mandate
I'm the moderator only for conlawprof, and Eugene may have a different suggestion for the religionlaw list, but may I strongly recommend that list posts not be quoted, and positions taken on the list not be attributed, without permission of the poster. I think that is a matter of courtesy, and it's also been our custom. No one can control what non-members may do with the archives, but we are a kind of community. The poster also may have made the point somewhere in print; if you ask, they could give you the reference to cite, which provides multiple benefits. Best, Mark Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scott Gerber s-ger...@onu.edu Date: 08/02/2013 5:18 AM (GMT-07:00) To: Gilbert, Lauren lgilb...@stu.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu,Conlawprof conlawp...@lists.ucla.edu Subject: Re: Citations to Listserv posts/Contraception mandate My recollection is that years ago we were _not_ supposed to cite the listserv without permission, and when it was cited without permission on a couple of occasions there was some criticism for it. I mention this only for purposes of information. Scott On Fri, Aug 2, 2013 at 7:42 AM, Gilbert, Lauren lgilb...@stu.edumailto:lgilb...@stu.edu wrote: I agree, but I also think that as a matter of professional courtesy, one should let ones’ colleagues know if they are being cited for something said in an online discussion and to give them a chance to respond. I had this experience with one of my pieces several years ago, where I actually had sent a draft to a colleague who I had cited based on an online discussion on ImmProf, asking for feedback, but without specifically mentioning that I had cited her. I got this response back . . . . I received your email but unfortunately not the attachment. I recall seeing the note in one of the previous versions and assume the text leading to it hasn't changed. I have to admit that I was initially surprised to see it cited given that I take the listserv discussion to be internal among the listed participants but I fully understand that your intention was a good one and am therefore comfortable with granting permission to cite it in your forthcoming article. Since then, I have been religious (no pun intended) about letting people know if I am citing them from an online discussion, and giving them a chance to respond. I fully recognize that others may not show me the same courtesy, so when I post I do so at my own risk. Even though ImmProf is not public like the ConLaw listserv, there are folks who are with the Government as well as many lurkers who may have taught one course as an adjunct and stay on without saying anything.It’s not a question of must but should . . . . Lauren Gilbert, Esq. Professor of Law St. Thomas University School of Law 16401 NW 37th Ave. Miami Gardens, FL 33054 Tel: (305) 623-2386tel:%28305%29%20623-2386 (work) You can access my papers on the Social Science Research Network (SSRN) at http://ssrn.com/author=339800 From: conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Shapiro, Carolyn Sent: Thursday, August 01, 2013 11:31 PM To: Robert Sheridan Cc: Law Religion issues for Law Academics; Conlawprof Subject: Re: Citations to Listserv posts/Contraception mandate I think it is essential to be able to cite listserv posts. If someone has posted something that has helped advance my thinking, it would be inappropriate not to cite them. On Thu, Aug 1, 2013 at 7:19 PM, Robert Sheridan r...@robertsheridan.commailto:r...@robertsheridan.com wrote: I figure that the right of free speech belongs to those having the courage to use it. If I'm going to be concerned that someone is going to quote me, I'm in more trouble than keeping my mouth shut. Wouldn't it be nice if any of us ever said anything quote-worthy, esp. yours truly. Of course, it helps, when speaking out in a public forum, to abandon any hope of public acceptance. The governor of California wants to know about all publications by candidates, especially those which might be controversial, when considering judicial applications, which I've never submitted. Ran once, but didn't apply, not respecting the governor sufficiently to ask a favor. Then there's this advisory at the end of each post, added by the machine handling Conlawprofs: 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. I look at this forum as a place to try out views, hoping that those more learned and experienced will advise where I've made a wrong turn, as has
Re: Citations to Listserv posts/Contraception mandate
... Let me present another view. Scholarship is not about vanity; it's about the ideas. Things that are relevant to an idea can come in many forms -- letters, songs, poems, conversations between spouses or a public speech. It could come from a diary or a movie. The trouble comes when we fail to be cognizant of the kind of source material that falls within our scholastic purview. What is said in an e-mail may not be the person's considerate views for a variety of reasons. We all know havoc that can come from the ease of the medium and from hip shooting in general. At the same time, we also know that relying only upon formally published material is too stuffy (formalistic). It betrays everything we know about the virtues of understanding premises and propositions by using historical context, biography, portrayal, social context and whatnot. And so, perhaps this is the answer: e-mails may indeed become scholarly relevant, but they only ever amount to a quick and cursory sort of thing. If someone were to cite to X's e-mailed position, it should never be regarded as his or her considerate view, without more, and it should always be dealt with by the person using it with qualification (apologetically). You should, in short, be able to apologetically use any e-mail, if it was truly relevant to the scholarly issue, and if, in text, you remind the reader of its inherent contingent value. One other nothing. I hope we all agree that aristocrat ethics should be avoided at all cost. Surely no one would propose a veil of secrecy around their emails because of a concern for vanity or for club status. Sometimes I think we misunderstand what the true ethic is here: the pursuit of truth/perspective and the need for intellectual discourse. So long as you use the email apologetically -- recognizing its contingent status -- it's okay to use it if doing so is relevant. Sent from my iPad On Aug 2, 2013, at 1:21 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I'm the moderator only for conlawprof, and Eugene may have a different suggestion for the religionlaw list, but may I strongly recommend that list posts not be quoted, and positions taken on the list not be attributed, without permission of the poster. I think that is a matter of courtesy, and it's also been our custom. No one can control what non-members may do with the archives, but we are a kind of community. The poster also may have made the point somewhere in print; if you ask, they could give you the reference to cite, which provides multiple benefits. Sent from my iPad ___ 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.
