RE: Divisiveness
I appreciate Alan's attempt to cabin the divisiveness concept, but I wonder whether it works. Nothing is beyond the scope of political decision-making -- there is always the possibility of constitutional amendment, and, more importantly, so long as various decisions involve the contested interpretation of constitutional language, there is the possibility of using political processes to select Justices who will take a different view of the matter. Indeed, my sense is that some of the most prominent political divisions along religious lines have come with regard to decisions that aimed to take things off the table, but have failed to do so. Roe v. Wade is the classic example, though in some measure the various government speech decisions, from the school prayer case onwards, have had that effect as well. Now it may well be that other decisions have indeed settled matters in considerable measure, and thus diminished religious groups' political mobilization as religious groups. But my guess is that it's often not easy to predict which creates more mobilization of religious groups as religious groups: a particular executive or legislative policy decision, or a Supreme Court decision reversing that policy decision. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, June 08, 2014 7:37 PM To: Law Religion issues for Law Academics Subject: RE: Divisiveness If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein ___ 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: Divisiveness
It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Alan's attempt to cabin the divisiveness concept, but I wonder whether it works. Nothing is beyond the scope of political decision-making -- there is always the possibility of constitutional amendment, and, more importantly, so long as various decisions involve the contested interpretation of constitutional language, there is the possibility of using political processes to select Justices who will take a different view of the matter. Indeed, my sense is that some of the most prominent political divisions along religious lines have come with regard to decisions that aimed to take things off the table, but have failed to do so. Roe v. Wade is the classic example, though in some measure the various government speech decisions, from the school prayer case onwards, have had that effect as well. Now it may well be that other decisions have indeed settled matters in considerable measure, and thus diminished religious groups’ political mobilization as religious groups. But my guess is that it’s often not easy to predict which creates more mobilization of religious groups as religious groups: a particular executive or legislative policy decision, or a Supreme Court decision reversing that policy decision. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, June 08, 2014 7:37 PM To: Law Religion issues for Law Academics Subject: RE: Divisiveness If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein ___ 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)
Divisiveness
What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu javascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu'); wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Alan's attempt to cabin the divisiveness concept, but I wonder whether it works. Nothing is beyond the scope of political decision-making -- there is always the possibility of constitutional amendment, and, more importantly, so long as various decisions involve the contested interpretation of constitutional language, there is the possibility of using political processes to select Justices who will take a different view of the matter. Indeed, my sense is that some of the most prominent political divisions along religious lines have come with regard to decisions that aimed to take things off the table, but have failed to do so. Roe v. Wade is the classic example, though in some measure the various government speech decisions, from the school prayer case onwards, have had that effect as well. Now it may well be that other decisions have indeed settled matters in considerable measure, and thus diminished religious groups’ political mobilization as religious groups. But my guess is that it’s often not easy to predict which creates more mobilization of religious groups as religious groups: a particular executive or legislative policy decision, or a Supreme Court decision reversing that policy decision. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, June 08, 2014 7:37 PM To: Law Religion issues for Law Academics Subject: RE: Divisiveness If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein
Simple Hobby Lobby question
Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ 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: Divisiveness
It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Alan's attempt to cabin the divisiveness concept, but I wonder whether it works. Nothing is beyond the scope of political decision-making -- there is always the possibility of constitutional amendment, and, more importantly, so long as various decisions involve the contested interpretation of constitutional language, there is the possibility of using political processes to select Justices who will take a different view of the matter. Indeed, my sense is that some of the most prominent political divisions along religious lines have come with regard to decisions that aimed to take things off the table, but have failed to do so. Roe v. Wade is the classic example, though in some measure the various government speech decisions, from the school prayer case onwards, have had that effect as well. Now it may well be that other decisions have indeed settled matters in considerable measure, and thus diminished religious groups’ political mobilization as religious groups. But my guess is that it’s often not easy to predict which creates more mobilization of religious groups as religious groups: a particular executive or legislative
Re: Divisiveness
Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never
Re: Simple Hobby Lobby question
The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ 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: Divisiveness
Legislative (or administrative) exemptions are not a third way of administering a generalized regime of exemptions under overarching standards like substantial burdens and compelling interests. Legislative and administrative exemptions will be in particular contexts, and will lead to some degree of accountability on the part of those who make them. (In the administrative setting, exemptions may even produce a regime of reasonable consistency - e.g., excused absences from class or exams for religious reasons). But even legislative/administrative exemptions, if religion-specific, must meet constitutional criteria -- relieve religion-specific burdens, avoid sectarian preferences, and not impose significant costs on third parties. On Mon, Jun 9, 2014 at 12:59 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of
RE: Divisiveness
Just to clarify, I see jurisdiction-by-jurisdiction RFRAs as implementing what I call a “common-law model”: as with common law defenses, privileges, and the like, they (1) leave courts with the first call on whether to create an exemption, but (2) allow legislatures to modify or repeal those exemptions if they disapprove of the courts’ decisions. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 09, 2014 9:59 AM To: Law Religion issues for Law Academics Subject: Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a
Re: Simple Hobby Lobby question
Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Divisiveness
I think we are agreeing, but I'm not actually sure. Consider the ADA. The ADA requires employers and businesses to make reasonable accommodations. That's a very vague standard for courts to apply. But I don't think that courts have been hopelessly inconsistent in doing so. Or consider exceptions to the ADA. If a proposed disability accommodation would impose an undue hardship, the employer doesn't have to make the accommodation. That's a fairly vague standard that courts must apply, but it doesn't appear to me that in practice it has led to hopelessly inconsistent results (the way RFRA has). Perhaps the difference between the ADA and RFRA is that the legislature developed a fairly careful scheme, considered lots of possible applications, worked hard to give it some definition, and gave an agency some authority in interpreting and applying it. That's quite unlike RFRA, which is not specific to a particular characteristic; offers essentially no guidance; and leaves it entirely to the courts to sort out. I'm suggesting that the ADA model (whether the ADA as a whole or, more likely, the undue hardship exception) is better than the RFRA model. Let religious lobbying groups (and their allies) lobby for religious exceptions to general laws. When no one else's interests are affected (like Goldman and his yarmulke, the Amish and their narrow social security exemption, etc), such exceptions will readily be written into law. When other people's rights are at stake, there will be a lobbying battle. Sometimes the religious lobby will win; sometimes it will lose. It won't be consistent. It will produce poor public policy sometimes. Sometimes the tradeoffs will be ugly. Such is life under a majoritarian regime. On Mon, Jun 9, 2014 at 1:23 PM, Ira Lupu icl...@law.gwu.edu wrote: Legislative (or administrative) exemptions are not a third way of administering a generalized regime of exemptions under overarching standards like substantial burdens and compelling interests. Legislative and administrative exemptions will be in particular contexts, and will lead to some degree of accountability on the part of those who make them. (In the administrative setting, exemptions may even produce a regime of reasonable consistency - e.g., excused absences from class or exams for religious reasons). But even legislative/administrative exemptions, if religion-specific, must meet constitutional criteria -- relieve religion-specific burdens, avoid sectarian preferences, and not impose significant costs on third parties. On Mon, Jun 9, 2014 at 12:59 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts
RE: Divisiveness
It would take an empirical study of the cases under each statute to confirm Hillel’s intuition that the ADA cases are less more consistent than the RFRA cases. My intuition would be the opposite – that the cases are probably equally inconsistent at least in the beginning, and quite possibly permanently. And if the ADA cases have become more consistent over time, it is only because there are so many more of them. Both statutes leave individual applications to the courts because individual applications are far too varied for the legislature to deal with. And in the RFRA context, there is the additional problem that it is almost impossible for legislators to act on principal with respect to unpopular religions. Enacting a general standard, and not addressing individual applications, was treated as a matter of high principle in the discussions leading to RFRA. The fundamental problem for both RFRA and the ADA is not just that they inevitably leave a range of discretion to judges, but also that some judges believe in the policy of the statute, and some do not. Each statute attempts to address the special needs of a minority group, and each imposes some costs on others. Those who are irritated or outraged by one of these statutes are rarely the same people who are irritated or outraged by the other. Each statute has experienced sympathetic interpretations and hostile interpretations, and it takes a lot of consistent appellate decisions to generate consistently sympathetic (or, not legitimate but nearly as likely) consistently hostile interpretations. And with RFRA, there just aren’t enough cases to generate such a body of appellate decisions. Hobby Lobby will the Court’s second opinion interpreting the Act in its 21 years of existence. 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: Monday, June 09, 2014 12:59 PM To: Law Religion issues for Law Academics Subject: Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA
Re: Divisiveness
The first SCOTUS opinion interpreting RFRA was O Centro (2006), which was unanimous, demanding in its statutory application, and a resounding defeat for the government. O Centro surprised quite a few of us. A student Note at 95 U. Va. L. Rev. 1281 (2009) argues that O Centro did little to affect the ways in which the Courts of Appeals construed RFRA. My own research of decisions suggests that little has changed since 2009. Contraceptive mandate cases aside, RFRA claimants rarely win. Of course, a weakly construed RFRA is not necessarily an inconsistently applied RFRA. But if Hobby Lobby generates strong constructions of RFRA, and lower courts go back to business as usual in RFRA cases not involving the Affordable Care Act, the inference of lawless application of RFRA over time will not be abated. On Mon, Jun 9, 2014 at 2:09 PM, Douglas Laycock dlayc...@virginia.edu wrote: It would take an empirical study of the cases under each statute to confirm Hillel’s intuition that the ADA cases are less more consistent than the RFRA cases. My intuition would be the opposite – that the cases are probably equally inconsistent at least in the beginning, and quite possibly permanently. And if the ADA cases have become more consistent over time, it is only because there are so many more of them. Both statutes leave individual applications to the courts because individual applications are far too varied for the legislature to deal with. And in the RFRA context, there is the additional problem that it is almost impossible for legislators to act on principal with respect to unpopular religions. Enacting a general standard, and not addressing individual applications, was treated as a matter of high principle in the discussions leading to RFRA. The fundamental problem for both RFRA and the ADA is not just that they inevitably leave a range of discretion to judges, but also that some judges believe in the policy of the statute, and some do not. Each statute attempts to address the special needs of a minority group, and each imposes some costs on others. Those who are irritated or outraged by one of these statutes are rarely the same people who are irritated or outraged by the other. Each statute has experienced sympathetic interpretations and hostile interpretations, and it takes a lot of consistent appellate decisions to generate consistently sympathetic (or, not legitimate but nearly as likely) consistently hostile interpretations. And with RFRA, there just aren’t enough cases to generate such a body of appellate decisions.* Hobby Lobby* will the Court’s second opinion interpreting the Act in its 21 years of existence. 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:* Monday, June 09, 2014 12:59 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then
RE: Divisiveness
I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law Religion issues for Law Academics Subject: Divisiveness I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as divisive. Government religious speech may be seen as divisive, because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential divisiveness of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one thinks a decision is sound, it's easy to view those who disagree as just unreasonable, so that their feelings of alienation don't really count (since they deserved to lose, and are now just being sore losers). Of course, Eugene Tom Berg writes: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) ___ 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. ___ 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: Divisiveness
“nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law Religion issues for Law Academics Subject: Divisiveness I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as divisive. Government religious speech may be seen as divisive, because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential divisiveness of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one thinks a decision is sound, it's easy to view those who disagree as just unreasonable, so that their feelings of alienation don't really count (since they deserved to lose, and are now just being sore losers). Of course, Eugene Tom Berg writes: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) ___ 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. ___ 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. -- Prof. Steven D. Jamar
Re: Divisiveness
There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create problems if the exemptions become wide enough to make it seem that religious folks have general privileges in society that secular folks do not. Cf. Affirmative action. I noted previously Scalia's citation (in during oral argument) of the overwhelming majority extending the VRA as evidence that the law was not carefully considered. During RFRA's passage and thereafter I focused on conservatives articulating the issue as one in which the Supreme Court disrespected religion, and those on the other side of the spectrum articulated the Smith decision as having disrespected constitutional rights. From discussion about Scalia with lawyers and non-lawyers, I cannot help thinking that a dislike of Scalia contributed to one side's support of RFRA. Jon On 2014-06-09 17:00, Steven Jamar wrote: “nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law Religion issues for Law Academics Subject: Divisiveness I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as divisive. Government religious speech may be seen as divisive, because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential divisiveness of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one
Re: Simple Hobby Lobby question
I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in *their capacities as company directors*. I think the Court will vote 9-0 on the question of whether *someone* can sue under RFRA in these circumstances. (I think that someone ought to be the Greens and Hahns in their director capacities; but whatever the theory, I doubt any Justice will vote to throw out the cases at the threshold.) The real question at stake in the cases is whether actors in the commercial sphere (corporate or not) should ever be able to prevail on the merits when granting them a religious exemption would mean significantly burdening third parties (competitors, customers, or, as here, employees). The answer to *that *question has been a resounding no for virtually the entire history of FEC/RFRA jurisprudence, going back 70 years. It's that tradition that is at stake. I have a bunch of posts on these and related questions if anyone's interested: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On the points discussed immediately above, see, e.g.: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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
