Scope of Academic Representations re: Pending Legislation
I find it very disturbing that Laycock, et. al. basically acted as cheer leaders for a bill they knew was controversial, to say the least, among their fellow scholars. The analysis proffered to the legislature did not mention the potential non-discrimination hazards at all - that issue was completely ignored - in fact, there were no downsides mentioned at all. In this political climate, this sort of intervention seems naive at best - cynics might suspect more base motives. (See http://www.peachpundit.com/wp-content/uploads/2014/02/RFRA-Letter.pdf). As for the constant appeals hearkening back to the unity of the post-Smith right-left coalition that rushed through RFRA, if anything, history has shown that maybe more dissent and reflection during that time would have revealed that these tensions were there all along. In the rush to paint Smith as some sort of historical aberration, there seems to be a tendency to canonize the scholarly response as symbolized by RFRA.Seems a bit Whiggish to me... ---Jimmy Green ___ 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: letter opposing Mississippi RFRA
So KC does not think equality is part of our constitutional heritage. That colors a lot of his claims privileging liberty above nearly all else and seeing it through the lens of competing liberty claims. The argument about equality not being in the phrase “equal protection” strikes me as similar to the argument that there is no such thing as and no need for substantive due process to protect libety substantively. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Climate change is the greatest market failure the world has ever seen . . .. Nicholas Stern, former chief economist at the World Bank On Mar 11, 2014, at 11:58 PM, K Chen tzn...@gmail.com wrote: The Civil War? The thing where our nation split apart and brother killed brother on a then unimaginable scale due to longstanding issues baked into the fabric (and constitution!) of our nation involving total enslavement of certain people? And I am undervaluing its meaning because I gave a cryptic answer? At first I assumed I had fallen into cross-fire between you and an ideological opponent, but I was directly quoted, so I remain perplexed. Equality isn't actually the value upheld in Amendment XIV which reads in relevant part All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. If you'll pardon the digression into Lincoln-Douglas debate, equality is not the highest moral value supported here, Amendment XIV proclaims equality before the law. Not a whit about, for example, equal power in society, equal wages, or equal access to the best teachers, or equal testing by those teachers. Upholding equality has remarkably different outcomes for, say, the handicapped, depending on how equal is interpreted. Equality is nebulous concept and upholding it without an attempt at detail I have no idea what good bad ideas or bad ideas are going to come about. (Liberty is also susceptible, so my apologies if I fell into argument-by-catchphrase somewhere). I'm not going to pretend I know exactly how the balance the interests of religious believers and other marginalized persons. Like every lawyer, I find it much easier to tear apart ideas submitted by others. I'm not even convinced that the frame is a sensible one. A multicultural society like ours is one where looking at both sides is an absurdity because there is in reality many more sides, and I like it that way. What I mean by an equal right to be wrong is protection of a diverse, plural society where many people believe many things and they fight it out as free from the interference of outside as we can live with. That seems to me both to be right as a value, and right practically because, as many have noted, bureaucrats, judges and legislators all have done a remarkably bad job of it. -KC On Tue, Mar 11, 2014 at 10:21 PM, Steven Jamar stevenja...@gmail.com wrote: Cryptic. Equal right to be wrong is a good start at what? That is not taking equality seriously and horribly undervalues what the civil war meant and that the 14th amendment is just as much a part of the constitution as the 1st and 5th. Sent from Steve's iPhone On Mar 11, 2014, at 10:02 PM, K Chen tzn...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? I try to speak for others only when asked. And my answer is maybe. Liberty is hard to nail down, but equality is even more ephemeral. At the very least, a diverse society where all citizens have an equal right to be wrong seems like a good start. -KC On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws — so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal.
Re: Scope of Academic Representations re: Pending Legislation
I do not find it all disturbing that academics engage in advocacy and do not present their positions in an objective, neutral way — or in a way that some others might think objectivity and neutrality require. Nor do I object to their being advocates, tailoring arguments to the particular audience, making ones that are less controversial but might be more effective. Nor do I think that any of us needs to or even should disclose to this list our various advocacy activities. I think our obligation in scholarship is somewhat, but not entirely, different. If we are describing the law as it is, we should strive to be as clear and fair and objective as possible and clearly disclose where we depart from that standard. But much scholarship is not about the law as it is, but rather is about the law as it could be and to some should be. For that all that we should do is be clear that we are advocating for what should be and not describing what is. We also should be fair in our use of precedents and try to be fair in our use (or more often “abuse”) of history. But that is harder due to complexity and conflicting readings and sources. Even in scholarship we can be advocates, but as professors and scholars we a have an obligation to be clear about when we are doing what. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Example is always more efficacious than precept. Samuel Johnson, 1759 On Mar 12, 2014, at 2:40 AM, jim green ugala...@gmail.com wrote: I find it very disturbing that Laycock, et. al. basically acted as cheer leaders for a bill they knew was controversial, to say the least, among their fellow scholars. The analysis proffered to the legislature did not mention the potential non-discrimination hazards at all - that issue was completely ignored - in fact, there were no downsides mentioned at all. In this political climate, this sort of intervention seems naive at best - cynics might suspect more base motives. (See http://www.peachpundit.com/wp-content/uploads/2014/02/RFRA-Letter.pdf). As for the constant appeals hearkening back to the unity of the post-Smith right-left coalition that rushed through RFRA, if anything, history has shown that maybe more dissent and reflection during that time would have revealed that these tensions were there all along. In the rush to paint Smith as some sort of historical aberration, there seems to be a tendency to canonize the scholarly response as symbolized by RFRA.Seems a bit Whiggish to me... ---Jimmy Green ___ 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: letter opposing Mississippi RFRA
I don't know what the bishops or the Greens would say, but I don't think they would object to that. They would not be specifying what you could buy from the pharmacist. What they object to is buying a policy that covers a list of items, and explicitly on the list are items that they believe will kill people. They contract to put those items on the list; they pay to have those items on the list; they tempt their employees to use those items by making them available for free. It's not even a case of giving their employees a choice of benefits. There are no policy limits under the ACA, so an employee who chooses a potentially abortifacient drug has not reduced by a penny her ability to consume other medical care under the same policy. Their view that these drugs sometimes act by preventing implantation is entirely plausible, given the FDA label and given the conflicting studies. Ella is billed as the week-after pill, which is an awfully long time for it to work with much of a success rate if it works only by preventing ovulation. Their view that preventing implantation is equivalent to killing a human being is very far from my view, but it is entirely logical, and it is a view with enormous moral weight. I really don't think that their objection is so mysterious or difficult to understand. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 11:03 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Doug: I'm not trying to exaggerate anything. In trying to understand the doctrine. Would this be a fair description?: I am your employee. You owe me fifty dollars for work I've done. You could pay me the money directly, knowing fully that I might use it to purchase contraception. But I ask you instead to deposit it directly to my pharmacist. I don't tell you that the pharmacist will now dispense contraception for me, but you know that I might. Under the doctrine of complicity you object to depositing the check with my pharmacist but not with me directly. Is that correct? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: The line is between benefits that are earmarked for a particular item and wages that are not. It is between what the employer purchases himself, and what the employee purchases. First you wildly exaggerate their claim, then you say that the exaggerated claim is ridiculous, then you infer that the actual claim is also ridiculous. Which is not to say that some of the people on the religious fringes, both left and right, don't make wildly exaggerated claims. But no religious claimant has ever won on a claim about the use of money paid over without restriction to someone else. The only claim of that sort I can think of is claims about paying taxes that the government then spends for immoral purposes. Zero for however many times they have tried. On Tue, 11 Mar 2014 22:17:40 -0400 Steven Jamar stevenja...@gmail.com javascript:; wrote: Still complicit--the employer knows the wages will sometimes be spent on things the employer dislikes just as much as the employer knows some employees will use insurance for things the employer dislikes. If the theory is complicity, that line is a pretty lame one. Sent from Steve's iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net javascript:; wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu javascript:; [mailto:religionlaw-boun...@lists.ucla.edu javascript:; ] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception?
Re: letter opposing Mississippi RFRA
I appreciate Kevin Chen’s clarification that he does not consider equality foreign to U.S. consitutional jurisprudence. I agree with him that equality is not easy to corral and that equality is context dependent, like every other aspect of law. There are procedural aspects of equality and substantive aspects of equality and both matter and neither can be achieved perfectly, if that is even a meaningful concept. The same is true for liberty. Anytime someone is restricted from doing something, that is a restriction on “perfect” liberty — hence the constitution creates a system of ordered liberty. There is no “pure equalty” that demands anything, either as legal concept or a political concept. As to the way equality is used — it may be used too often with a substantive goal to homogenize, though I’ve never seen it used that way in any constitutional argument, political argument, or school setting, but maybe it actually is used that way — though how often is “too much” is perhaps interesting. As to equality is best sought for those similarly situated” — sort of begs the question, doesn’t it? If they are already “similarly situated”, are they not already “equal” for at least some values of “equal” and “similarly situated”? But, as we are straying far from the topic, I will leave it there. As to whether “religious believers are not similarly situated,” that is surely true insofar as the constitution provides special protection for them and RFRAs do as well. The questions seem to be what subtantive benefits should religious believers get; when should they be able to opt out of something; when should their liberty interest be limited by equality interests or the interests in general welfare or the liberty interests of others? Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Nothing worth doing is completed in our lifetime, Therefore, we are saved by hope. Nothing true or beautiful or good makes complete sense in any immediate context of history; Therefore, we are saved by faith. Nothing we do, however virtuous, can be accomplished alone. Therefore, we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own; Therefore, we are saved by the final form of love which is forgiveness. Reinhold Neibuhr On Mar 12, 2014, at 10:29 AM, K Chen tzn...@gmail.com wrote: [snip] Pure equality demands that the terrible scores of all of these children stand without help. [snip] The way that the word equality is too often used is as a way to homogenize, and it makes the world more equal in only the worst ways, and less equal in all the others. Equality is best sought for those similarly situated, and religious believers are not similarly situated. [snip] ___ 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: letter opposing Mississippi RFRA
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Steven JamarSent: Wednesday, March 12, 2014 12:05 PMTo: Law Religion Law ListReply To: Law Religion issues for Law AcademicsSubject: Re: letter opposing Mississippi RFRAI appreciate Kevin Chen’s clarification that he does not consider equality foreign to U.S. consitutional jurisprudence. I agree with him that equality is not easy to corral and that equality is context dependent, like every other aspect of law.There are procedural aspects of equality and substantive aspects of equality and both matter and neither can be achieved perfectly, if that is even a meaningful concept. The same is true for liberty. Anytime someone is restricted from doing something, that is a restriction on “perfect� liberty — hence the constitution creates a system of ordered liberty.There is no “pure equalty� that demands anything, either as legal concept or a political concept.As to the way equality is used — it may be used too often with a substantive goal to homogenize, though I’ve never seen it used that way in any constitutional argument, political argument, or school setting, but maybe it actually is used that way — though how often is “too much� is perhaps interesting.As to "equality is best sought for those similarly situated� — sort of begs the question, doesn’t it? If they are already “similarly situated�, are they not already “equal� for at least some values of “equal� and “similarly situated�? But, as we are straying far from the topic, I will leave it there. As to whether “religious believers are not similarly situated,� that is surely true insofar as the constitution provides special protection for them and RFRAs do as well. The questions seem to be what subtantive benefits should religious believers get; when should they be able to opt out of something; when should their liberty interest be limited by equality interests or the interests in general welfare or the liberty interests of others?Steve --Prof. Steven D. Jamar vox:202-806-8017Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.orgHoward University School of Law fax:202-806-8567http://iipsj.com/SDJ/Nothing worth doing is completed in our lifetime,Therefore, we are saved by hope.Nothing true or beautiful or good makes complete sense in any immediate context of history;Therefore, we are saved by faith.Nothing we do, however virtuous, can be accomplished alone.Therefore, we are saved by love.No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own;Therefore, we are saved by the final form of love which is forgiveness.Reinhold Neibuhr On Mar 12, 2014, at 10:29 AM, K Chen tzn...@gmail.com wrote:[snip]Pure equality demands that the terrible scores of all of these children stand without help. [snip]The way that the word "equality" is too often used is as a way to homogenize, and it makes the world more equal in only the worst ways, and less equal in all the others. Equality is best sought for those similarly situated, and religious believers are not similarly situated.[snip] ___ 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.
