Question from Prof. Nancy Leong about how atheists are treated under various legal rules
Prof. Nancy Leong asked me to forward this query: What is the best work on atheists are treated under the Establishment Clause, state constitutions, and/or Title VII? I have been surprised by how little I've found in law reviews, and wondered whether there is a legal scholar who, for example, has mostly written books on this. To provide some context, this is for one of my summer projects, which focuses on what I'm provisionally calling negative identity until I can think of a better word. I'm using the term to mean an identity category that's defined by the absence of something that many people in society deems important: religion, sex, a partner, children. My tentative descriptive claim is that the law often protects people who are religious, sexual, partnered, and parents better than it protects atheists, asexuals, singles, and the childfree, and if my descriptive claims is correct, I'm interested in thinking about why that would be and if it's justified. If you could e-mail her at nle...@law.du.edumailto:nle...@law.du.edu, that would be great. Thanks, Eugene ___ 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.
Who became less tolerant first
Jonathan Rauch has a piece http://www.theatlantic.com/magazine/archive/2014/07/the-great-secession/372288/ up at the Atlantic advising conservative Christians to drop their push for special accommodations from anti-discrimination. Two interesting things leapt out at me. First, this comment from Ed Whelan: Those of us growing up in the 1960s and 1970s [saw...] little or no tension in being a Catholic in the broader American culture. Today, [...] the culture has become less hospitable to religious beliefs, there is a greater need to be more vigilant. We’ve got to figure out where to draw the lines. But, as Rauch points out: [T]he desire to be left alone takes on a pretty aggressive cast when it involves slamming the door of a commercial enterprise on people you don’t approve of. The idea that serving as a vendor for, say, a gay commitment ceremony is tantamount to “endorsing” homosexuality, as the new religious-liberty advocates now assert, is a far-reaching proposition, one with few apparent outer boundaries in a densely interwoven mercantile society. It suggests a hair-trigger defensiveness about religious identity that would have seemed odd just a few years ago. It seems to me that Rauch is right to say that many religious accommodation seekers are making a substantively bigger ask than they used to. Is this, as Whelan says, the result of secular society growing more hostile? Is it secular aligned activists who have grown more intolerant? Maybe it has always been thus, with the same forces that one a Phyrric Victory in the *Scopes *trial still making unreasonable demands and getting beaten back. It seems to me that you see in the papers, in casual conversation and in public litigation that whoever started it, the divide is getting worse and is harming society along the way. I'm not smart enough to know what the exact implications of this divide are or should be on the law, but it seems like our instincts on it will inform the coming reactions to Hobby Lobby at least as much as our positions on corporate law. -Kevin Chen ___ 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.
Out on a Hobby Lobby limb -- last-minute speculations
http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvi-half-dozen.html * Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision * Marty Lederman The Supreme Court will almost certainly issue its decision in *Burwell v. Hobby Lobby* this morning (at about 10:15). The Chief Justice likely assigned himself the lead opinion at conference back in March. Here are six possibilities that you might not have considered concerning the decision. I am *not *predicting that all of them will come to pass--indeed, perhaps none will. But each of them is distinctly possible (I'd say that Nos. 1 and 3 are probable), and none should come as a surprise: *1. * *The Court unanimously rejects the government's threshold argument that none of the plaintiffs can sue under RFRA*. This is the basic question that has dominated debate in the lower courts. But for reasons I explained here http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html, I think it very likely that there will be few, if any, Justices who conclude that the suits should be tossed out without reaching the merits. *2. * *The Court does not resolve the question of whether for-profit corporations can exercise religion*. As I've discussed in several posts (such as this one http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html), this is not the most propitious case for the Court to examine this abstract question, which has dominated public discussion. Indeed, the Court might never have to resolve it. The much easier and more appropriate route for the Court would be to hold that it is the individual corporate directors -- the Greens in *Hobby Lobby*; the Hahns in *Conestoga Wood *-- who can bring RFRA suits, since if the federal law here burdens anyone's exercise of religion by requiring or coercing violation of religious obligations, it is the obligations asserted by those individuals acting in their capacity as corporate decision-makers (not shareholders). *3.* *The Court holds that there is no employer mandate and that federal law does not require the corporations to provide insurance coverage for contraceptive services*. Those of you who have been reading along with my posts will recognize this argument. As I explained recently http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html, the remarks of several Justices (including the Chief Justice) at oral argument in March suggested that most if not all of the Justices may reject the factual premise that every court of appeals has assumed--namely, that corporations of a certain size have a *legal duty* to provide an employee health plan that includes contraceptive coverage, and that they are subject to a penalty or fine if they do not do so. They don't; and they aren't. Please note: This would *not *mean that the government necessarily wins. It would, instead, shift the initial merits question to whether federal law imposes substantial pressure on these or any other employers to offer such a plan (notwithstanding that many if not most employers nationwide will abandon their plans http://images.politico.com/global/2014/04/30/health_care_4-29_3.html), something I've discussed at length in several Balkinization posts (see posts III, III-A, III-B, VIII, IX, XIV and XV here http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html). *4. The Court does not resolve the merits, but instead remands the case to the lower courts for adjudication of either or both of two factual disputes*. These possibilities both came up at oral argument, after having received almost no attention in the briefs. *First*, the Court might remand the cases for trial on the question of whether federal law does, in fact, impose substantial pressure on these particular employers to provide an employee health plan (see Point 3, above), something their lawyer, Paul Clement, urged the Court to give him an opportunity to demonstrate. *Second*, the Court might remand the cases for trial on the question of whether the government could offer for-profit employers the same option that it has afforded nonprofit religious employers, pursuant to which they could opt out of involvement with contraceptive coverage, which would then be provided, and paid for, by third-party insurers or administrators. This is an alternative that plaintiffs' counsel first proposed at the end of his oral argument (see page 40 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf). When Justice Breyer asked the Solicitor General about this alternative, the SG explained that because the plaintiffs had not previously suggested such a solution would be acceptable to them, the government had not yet calculated whether it was something that might be feasible: You're talking about a very openended increase in the cost to the government. Now, we don't know how much that cost would be. . . . Since this wasn't
Hobby Lobby Question
As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- 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: Hobby Lobby Question
Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 Richard Friedman Sent: Monday, June 30, 2014 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 tel:%28678%29%20641-7452 hle...@uga.edu mailto:hle...@uga.edu hillelle...@gmail.com mailto: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 mailto: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: Hobby Lobby Question
I know. But it's not as if you were uninvolved, either in the legislation or in the case. Congratulations are certainly in order! Rich On Mon, Jun 30, 2014 at 4:41 PM, Douglas Laycock dlayc...@virginia.edu wrote: Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 *Richard Friedman *Sent:* Monday, June 30, 2014 4:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- 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 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: Hobby Lobby Question
As have I: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvii-upshot-of.html On Mon, Jun 30, 2014 at 4:26 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I have just posted some (probably controversial) preliminary thoughts on Hobby Lobby on Religion Clause-- http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [ tcb...@stthomas.edu] *Sent:* Monday, June 30, 2014 4:12 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby Question The majority opinion gives ammunition to the plaintiffs in the nonprofit cases by reemphasizing that when the plaintiffs determine that a certain complicity violates their beliefs, the courts shouldn't find that too attenuated to be a burden. On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the insurer-pays) accommodation generally as the solution, and he seems not particularly enamored of the nonprofits' argument that the government can just pay for contraception with a new funding program. (The majority discussed that argument approvingly, and Kennedy joined the majority opinion in full; so it's one of those questions about parsing the opinion of a swing justice who also joined the majority opinion.) So isn't the Court pointing toward some form of the nonprofit accommodation with a different trigger. Are there reasons why the government can't adopt as a trigger the simple notice to HHS, the solution the Court adopted in the stay order in the Little Sisters case? Or was the government just waiting to see if it would win in Hobby Lobby? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [ dlayc...@virginia.edu] *Sent:* Monday, June 30, 2014 2:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- 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 subscribe to the list and read messages that are posted; people can read the Web archives;
RE: Hobby Lobby Question
I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto: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: Hobby Lobby Question
Alan Brownstein wrote: I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? By my read (Slip op at 29) for the purposes of sincerity, the right and exercise stems from the natural person and into the fictions they own and operate, but the corporation itself has the right to further a policy of protecting natural persons. My worry with your formulation is that too much focus on the owner/operator may impact any read of their sincerity. If owner Bob operates closely held Acme Corporation with religious restrictions, but not closley held Collective Corporation, does Bob not sincerely hold his religious beliefs? As to the least restrictive alternatives, it seems like there cannot be restrictions for me but not for thee, at least when it comes to religious accommodation. On the other hand, there might be set up for saying that an existing opt-out accommodation that the government demonstrates is the lowest cost may presumably be a least restrictive means, maybe even presumptively so. At least, those are the horses I might trade to avoid perverse incentives. Other than that, it seems like the majority has given themselves very little room to move in interpreting least restrictive means in the future. -Kevin Chen On Mon, Jun 30, 2014 at 5:07 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Monday, June 30, 2014 12:29 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546
RE: Hobby Lobby Question
With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto: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: Hobby Lobby Question
I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy's comment that there isn't a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means - less restrictive of religious liberty - than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections. ... It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. ... If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens' religious beliefs. Cf. ?2000cc-3(c) (RLUIPA: '[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.'). HHS's view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage for free (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn't a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto: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.edumailto: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
Re: Hobby Lobby Question
With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Monday, June 30, 2014 12:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 9:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby
Re: Hobby Lobby Question
The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level.These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- 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://sdjlaw.org For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ 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: Hobby Lobby Question
Sandy Levinson says, Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the 'performative utterance' of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. I must be missing something. Does Sandy think that if the Supreme Court declares state laws banning same-sex marriages unconstitutional, same-sex couples living in remote corners of Texas or Virginia will have to travel to Austin or Charlottesville to find a minister or county clerk willing to marry them? After Loving v. Virginia, were interracial couples who wished to marry required to travel to miscegenation-friendly counties to get married? Does Sandy think they should have been? It seems quite clear to me that thousands of county clerks will be required to take the steps necessary to create legal same-sex marriages, whether they like it or not. And so it should be. And the Court should not decline to make such a ruling on the ground that it's politically impossible. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 10:20 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer *Sent:* Monday, June 30, 2014 8:51 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive
Re: Hobby Lobby Question
Sandy's idea that Brown did nothing is simply wrong. Brown altered American culture in profound ways and set the stage for massive civil rights demonstrations, since it signaled the end to legal segregation, and was followed in two years by overturning Plessy. It led to litigation and legislation in all kinds of ways, and it forced the Senators of the former Confederacy, except for LBJ, Gore, and Kefauver, to out themselves with their manifesto. Furthermore, in much of the upper south, as well as in many Catholic school systems in the South, it led so some integration. We need only remember what the US south looked like in 1950 to understand the enormous changes Brown led to. From: Levinson, Sanford V slevin...@law.utexas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 10:20 PM Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared
