RE: Eugene's Blog Post on Liberals and Exemption Rights
Chip: I don’t take kindly to threats. Say what you want to say, or don’t. O’Brien doesn’t apply here, and no one is talking about spray painting anyone’s house. A typical definition of “self-serving” is “Serving one's own interests often in disregard of the truth or the interests of others.” http://www.merriam-webster.com/dictionary/self-serving. You should not have used that derogatory term to refer to Doug or Tom. Wedding photographers try to depict, through their artistic efforts, weddings as being beautiful events. You previously said that the photographer could be required to depict the ceremony as beautiful (and authentic, whatever that may mean). I gave that statement a generous interpretation which I could accept, to the effect that if she could, contrary to my views, be required to photograph the event, then she could not sabotage the depiction of the event, could not set out to make it seem that the parties did not care for each other, and would have to use appropriate technical skills (regular camera equipment, correcting for red-eye, etc.). Now you seem to say that the photographer must make the same effort to create beauty (whether or not successful) that the photographer would make with regard to other ceremonies. That is a demand that the photographer attempt to depict the ceremony (to the extent possible) as a beautiful thing, which violates the photographer’s right not to express the government’s view or anyone else’s view of that which is beautiful. The right to have one’s own beliefs as to the good, the true, and the beautiful – and the right to refrain from expressing anyone else’s beliefs – is a central component of freedom. 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 Ira Lupu Sent: Sunday, April 05, 2015 1:58 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: O'Brien fits any attempt to apply free speech principles to regulation of conduct that has non-communicative elements. You can love the Lord, but you cannot spray paint that on the side of my house. You can despise inter-faith marriage, but (if you are covered by public accommodations law), you cannot refuse to serve an inter-faith couple. Of course the state cannot compel you to create beauty -- most of us are incapable of that. But if you offer to create beauty for the general public, you can be held to an obligation to do so without discrimination. I'm willing to consider taking photographers out from under that entire regime. And still, I get insulted by you? You are being the hothead. Tom and Doug have written letters to a dozen or more state legislators seeking these exemptions or seeking RFRA's -- they have political motivations. I write opposing letters, and I have political motivations. I have seen at least one such letter, which you signed, that contained a factual assertion that I strongly believe is an untruth. I called that to the attention of the signatories, but not to the list. Please don't tempt me further to make that dispute public by being intemperate with me. I hope you all take up the invitation that Jim and I have now proffered to discuss the non-profit situation. The commercial vendor context is just too loaded with polarized views and quick triggers to anger, at least for me, so I'm out of it unless you insult me further. Chip On Sun, Apr 5, 2015 at 4:21 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I am astonished and dismayed that Chip says the First Amendment allows the State to require a person to create art that depicts beauty. The authoritarian spirit arises: So what he says. Principles that get in the way of a preferred outcome must be discarded. Perhaps that is too harsh; he says that he is not *convinced* that the First Amendment does not provide protection against such compelled speech Chip's accusation that Doug's and Tom's arguments are politically self-serving does not deserve a response, and I hope will be rejected by fair-minded members of this list. Of course Chip's invocation of O'Brien would receive a very poor grade on a student's paper. Does *Chip* have a political agenda here, or is he perhaps just not thinking straight? I hope the latter is the case. Here the photographer is required by the State to express a message; that was not the case in O'Brien. Here the photographer does not refuse to obey the law in order to communicate a message; she refuses to engage in an affirmative act of communicating a State-mandated message because it violates her religious conscience to do so. If an important state interest is sufficient to justify the state in compelling speech, then we are in very deeply authoritarian trouble. The need for commitment to the security of a nation is
RE: Eugene's Blog Post on Liberals and Exemption Rights
May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. MAG ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Mark: I don't take kindly to insults to my legal acumen (Chip's invocation of O'Brien would receive a very poor grade on a student's paper.), or the clarity of my thinking (is he perhaps just not thinking straight?). FWIW, I note that the brief in opposition to certiorari in Elane Photography cited O'Brien, though it did not rely substantially on that case. The New Mexico Supreme Court rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that my view of the case involves some Orwellian tyranny does seem a little far-fetched. Still, as I have said in many posts, reasonable scholars can differ on the compelled speech issues, and exempting photographers from public accommodations law (rather than adjudicating artistic content, case by case, for all vendors) is an idea worth considering. But, most of all, I do my best to speak and write, as a scholar, lawyer, and citizen, with honesty and integrity. Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other members of this list, prepared and signed a letter to the Indiana Senate Judiciary Committee about Indiana's proposed RFRA. The full letter, dated 2/3/15 is available here: http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf . The letter, anticipating correctly that opponents of the Indiana Bill would rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can cause harm to employees and others, devoted several paragraphs to discussing Hobby Lobby. If Hobby Lobby had been a win-win situation (or even a win -- no loss situation) as the Court had suggested and Doug Laycock had often characterized it, religious liberty would have been protected and no one would have been harmed. But, the story of Hobby Lobby and all the other challenges to the contraceptive mandate, as applied to for-profits, is one of continuing harm to female employees and female dependents (of child-bearing age) of all employees. In these cases, the challenged coverages have not been provided to employees. In some, like Hobby Lobby, the challenged contraceptives included emergency contraceptives and IUD's (the most effective and expensive contraceptive device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged coverage of all contraceptives. To the best of my knowledge, the employees of these challengers are without the challenged coverages. (I'm happy to be corrected if I'm wrong about any of these employers.) The Obama Administration has proposed extending the non-profit accommodation to for-profits, but has not made that policy final. When it does, RFRA challenges are likely, and RFRA challenges remain very much alive with respect to that accommodation as applied to non-profits. So thousands of women have been denied contraceptive coverage, partial or complete, by the Hobby Lobby decision and fall-out from it. There is no guarantee they will ever get that coverage, and it won't be retroactive even if they do. They are suffering continuing harm, and it may go on for a long time. Nevertheless, your letter included the following: the key to the Court’s decision was that the owners could be exempted from the regulation without affecting their female employees’ access to contraception. The Court, in other words, found a win-win solution. *The owners got to follow their religious beliefs; their female employees got the contraception they needed. The Court did this by copying the solution that the government had already put into effect for religious non-profits. *Instead of the companies providing contraceptive coverage themselves, their insurers or third-party plan administrators would do so instead, with segregated funds not derived from the employer. The insurers would recoup their costs from the savings from the reduced costs of pregnancy and childbearing or from rebates on fees otherwise payable to the health-care exchanges. (italics added) The first italicized sentence -- *their female employees got the contraception they needed --* is false, and materially misleading. The facts on the ground are otherwise, and that just destroys any argument that Hobby Lobby is a win-win. The policy may change in the future, but it has not happened yet. These women have not received the mandated coverage for 9 months, and counting. They have lost. The second italicized sentence -- *The Court did this by copying the solution that the government had already put into effect for religious non-profits* * -- *is a distortion so blatant that a student who wrote that in a seminar paper would be criticized for simply not understanding the least restrictive alternative rule. The rule does not authorize judicial copying, or ordering into effect, a policy that only the other branches have power to create. But your letter tells the Indiana legislators that the Court put that rule into effect so as to ensure contraceptive coverage for female employees.** As you
FW: Eugene's Blog Post on Liberals and Exemption Rights
The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be Hobby Lobby. That would be a decision that goes well beyond Hobby Lobby. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in Hobby Lobby, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that Hobby Lobby was wrongly decided but that we accurately described it. Speaking only for myself, I think that Hobby Lobby was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. 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 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, April 06, 2015 5:57 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: I don't take kindly to insults to my legal acumen (Chip's invocation of O'Brien would receive a very poor grade on a student's paper.), or the clarity of my thinking (is he perhaps just not thinking straight?). FWIW, I note that the brief in opposition to certiorari in Elane Photography cited O'Brien, though it did not rely substantially on that case. The New Mexico Supreme Court rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that my view of the case involves some Orwellian tyranny does seem a little far-fetched. Still, as I have said in many posts, reasonable scholars can differ on the compelled speech issues, and exempting photographers from public accommodations law (rather than adjudicating artistic content, case by case, for all vendors) is an idea worth considering. But, most of all, I do my best to speak and write, as a scholar, lawyer, and citizen, with honesty and integrity. Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other members of this list, prepared and signed a letter to the Indiana Senate Judiciary Committee about Indiana's proposed RFRA. The full letter, dated 2/3/15 is available here: http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf . The letter, anticipating correctly that opponents of the Indiana Bill would rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can cause harm to employees and others, devoted several paragraphs to discussing Hobby Lobby. If Hobby Lobby had been a win-win situation (or even a win -- no loss situation) as the Court had suggested and Doug Laycock had often characterized it, religious liberty would have been protected and no one would have been harmed. But, the story of Hobby Lobby and all the other challenges to the contraceptive mandate, as applied to for-profits, is one of continuing harm to female employees and female dependents (of child-bearing age) of all employees. In these cases, the challenged coverages have not been provided to employees. In some, like Hobby Lobby, the challenged contraceptives included emergency contraceptives and IUD's (the most effective and expensive contraceptive device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged coverage of all contraceptives. To the best of my knowledge, the employees of these challengers are without the challenged coverages. (I'm happy to be corrected if I'm wrong about any of these employers.) The Obama Administration has proposed extending the non-profit accommodation to for-profits, but has not made that policy final. When it does, RFRA challenges are likely, and RFRA challenges remain very much alive with respect to that accommodation as applied to non-profits. So thousands of women have been denied contraceptive coverage, partial or complete, by the Hobby Lobby decision and fall-out from it. There is no guarantee they will ever get that coverage, and it won't be retroactive even if they do. They are suffering continuing harm, and it may go on for a long time. Nevertheless, your letter included the following: the key to the Court’s decision was that the owners could be exempted from the regulation without affecting their female employees’ access to contraception. The Court, in other words, found a win-win solution. The owners got to follow their religious beliefs; their female employees got the contraception they needed. The
RE: Eugene's Blog Post on Liberals and Exemption Rights
In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. MAG ___ 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: FW: Eugene's Blog Post on Liberals and Exemption Rights
Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. 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 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Monday, April 06, 2015 5:57 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: I don't take kindly to insults to my legal acumen (Chip's invocation of O'Brien would receive a very poor grade on a student's paper.), or the clarity of my thinking (is he perhaps just not thinking straight?). FWIW, I note that the brief in opposition to certiorari in Elane Photography cited O'Brien, though it did not rely substantially on that case. The New Mexico Supreme Court rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that my view of the case involves some Orwellian tyranny does seem a little far-fetched. Still, as I have said in many posts, reasonable scholars can differ on the compelled speech issues, and exempting photographers from public accommodations law (rather than adjudicating artistic content, case by case, for all vendors) is an idea worth considering. But, most of all, I do my best to speak and write, as a scholar, lawyer, and citizen, with honesty and integrity. Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other members of this list, prepared and signed a letter to the Indiana Senate Judiciary Committee about Indiana's proposed RFRA. The full letter, dated 2/3/15 is available here: http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf . The letter, anticipating correctly that opponents of the Indiana Bill would rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can cause harm to employees and others, devoted several paragraphs to discussing Hobby Lobby. If Hobby Lobby had been a win-win situation (or even a win -- no loss situation) as the Court had suggested and Doug Laycock had often characterized it, religious liberty would have been protected and no one would have been harmed. But, the story of Hobby Lobby and all the other challenges to the contraceptive mandate, as applied to for-profits, is one of continuing harm to female employees and female dependents (of child-bearing age) of all employees. In these cases, the challenged coverages have not been provided to employees. In some, like Hobby Lobby, the challenged contraceptives included emergency contraceptives and IUD's (the most effective and expensive contraceptive device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged coverage of all contraceptives. To the best of my knowledge, the employees of these challengers are without the challenged coverages. (I'm happy to be corrected if I'm wrong about any of these employers.) The Obama Administration has proposed extending the non-profit accommodation to for-profits, but has not made that policy final. When it does, RFRA challenges are likely, and RFRA challenges remain very much alive with respect to that accommodation as applied to non-profits. So thousands of women have been denied contraceptive coverage, partial or complete, by the Hobby Lobby decision and fall-out from it. There is no guarantee they will ever get that coverage, and it won't be retroactive even if they do. They are suffering continuing harm, and it may go on for a long time. Nevertheless,
Re: Eugene's Blog Post on Liberals and Exemption Rights
If one treats the issue as state mandated art (in the absence of conditional funding, at least), I agree with Mark S. Am I correct in assuming that Mark's caveat doesn't apply to the wedding cake, at least if we're talking about off the rack cakes? I assume also this wouldn't apply to the caterers or tent rentals etc. And do we have to decide who is a genuine artist? Imagine a caricaturist who often draws pictures of wedding guests as amusing souvenirs. Would she be able to decline the offer of employment? If all of this intense and acrimonious discussion boils down to a few wedding photographers, I'm inclined to say that we who support same-sex marriage can afford to be magnanimous in what has clearly become our victory. But am I correct in this presumption? Sandy Sent from my iPhone On Apr 6, 2015, at 6:38 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. MAG ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
In an ideal world I would stand with Sandy's plea for magnanimity. I tend towards a compromise view of the world in general, and I believe there could be room for compromise here as well. I'd go even further and say that religious folks and LGBTQ folks are fellow travelers who should be able to find common cause. The history (recent and historical) of repression, discrimination, rejection, victimization, and dehumanization is central to both groups' experiences. Moreover, at their core both groups are engaged in the deep search for truth, meaning, identity, love, and the true self. Would both groups affirm this of the other, I believe there could be common purpose that eclipses that which divides. Unfortunately, in the real world I don't see that happening. Frankly, I lay the blame primarily at the feet of religious conservatives, including some among my own orthodox Jewish coreligionists. For decades and longer, many religious conservatives have (and indeed continue to) denied the basic humanity and dignity of LGBTQ individuals. Not all religious conservatives have, of course, but it has been a constant refrain in our political and social discourse. Too many LGBTQ individuals to count have been cast out of their natural families and their religious families. In my view, this represents both a failure of practical political judgment (the writing was on the wall about SSM and the ascendancy of gay rights at least two decades ago) and a failure of empathy and magnanimity on the part of religious conservatives. One tends to reap what one sows. Most of us, I think, want to be accepted wholly by others. Those who have been consistently victimized and rejected by others are probably more sensitive to dignitary harms that others might brush off or simply accept or ignore. There is something rich and ironic about religious individuals now demanding special treatment and acceptance of their different lifestyles and beliefs from the very people whom they have vilified and continue, in many cases, to vilify. It would be nice for LGBTQ people to turn the other cheek as Sandy suggests; but gee, that's a lot to ask of people. To be clear, I view all of this as deeply, deeply tragic. And it answers neither the constitutional nor the policy questions. But descriptively, that's what I think is going on. When all is said and done, I find it difficult to expect that LGBTQ advocacy groups--now finally enjoying a measure of political success and social acceptance (though by no means complete)--to simply stop demanding full legal and social equality. When they see groups taking actions that would undermine their legal and social standing and dignity, I dont blame them for organizing politically and attempting to stop them in their tracks. I can't fault them for being unmoved by pleas for acceptance, dignity, and space from the very same people (and fellow travelers) who have, and indeed continue to, denied them the same. I hope that one day we will be able to put this tragedy behind us. It is not a surprise to me that Mormons in Utah--who know a thing or two about repression, rejection, dehumanization, and discrimination--were the first to quite publicly and effectively extend a hand. Whatever one thinks of the ultimate product of that effort, the sentiment seems to me to be the right one. The onus is on other, more mainstream religious conservatives who are used to holding political and social clout to extend that hand. I just don't think that day is coming soon. On Monday, April 6, 2015, Levinson, Sanford V slevin...@law.utexas.edu wrote: If one treats the issue as state mandated art (in the absence of conditional funding, at least), I agree with Mark S. Am I correct in assuming that Mark's caveat doesn't apply to the wedding cake, at least if we're talking about off the rack cakes? I assume also this wouldn't apply to the caterers or tent rentals etc. And do we have to decide who is a genuine artist? Imagine a caricaturist who often draws pictures of wedding guests as amusing souvenirs. Would she be able to decline the offer of employment? If all of this intense and acrimonious discussion boils down to a few wedding photographers, I'm inclined to say that we who support same-sex marriage can afford to be magnanimous in what has clearly become our victory. But am I correct in this presumption? Sandy Sent from my iPhone On Apr 6, 2015, at 6:38 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu javascript:; wrote: In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a
Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)
Gov. Jindal's office announced today that he will support newly proposed legislation in Louisiana that would give businesses the right to refuse to provide marriage-related services and benefits for religious reasons (see my message below for more details and background on the proposal). Meanwhile, the sponsor of the bill has indicated that he might modify it so it does not apply to employee benefit programs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_will_support_loui.html http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_bill_altered.html At this point, I'm not sure a bill like this would be politically feasible in any state outside the context of a tradeoff (e.g., exemption included in new law prohibiting sexual-orientation discrimination in the marketplace), but if it is, Louisiana would seem to be one of the most promising venues for supporters. Gov. Jindal will be very motivated to make it happen given his target demographic in the Presidential primary, and according to at least one recent poll, the state has the ninth lowest support of same-sex marriage in the nation. It will be interesting to see if the NFL takes a stand on the bill (Louisiana has hosted 10 Super Bowls). - Jim On Sun, Apr 5, 2015 at 11:55 AM, James Oleske jole...@lclark.edu wrote: When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said the following: Let's remember what this debate was originally all about. This is about business owners that don't wanna have to choose between their Christian faith, their sincerely held religious beliefs, and being able to operate their businesses. Now, what they don't want is the government to force them to participate in wedding ceremonies that contradict their beliefs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html Longtime advocates of RFRAs would understandably object to this characterization as ignoring all the many less-controversial religious liberty claims that originally motivated the push for RFRAs, but in terms of the political impetus for the new state RFRAs, Gov. Jindal is undoubtedly correct as to what the debate is all about. Accordingly, it seems appropriate that the coming debate in Louisiana won't be about a new RFRA or new RFRA amendment (like those considered in Indiana and Arizona) that would leave the answer to the wedding vendor cases unclear and subject to future judicial balancing. Rather, the coming debate in Louisiana will be over proposed legislation (introduced Friday) that would clearly give businesses the right to refuse marriage-related services and benefits to same-sex couples. Bill: http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html Story about the Bill (in which Doug is quoted): http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html The Louisiana bill would, in Steve's words below, have the benefits of clarity, but it would likely cut too broadly even for many who support carve-outs from antidiscrimination laws in the same-sex marriage context, as the language of the proposal would allow vendors to refuse service to interracial couples, interfaith couples, couples involving divorced individuals, or any other type of couple to which there is a religious objection. The legislation closely mirrors the proposed Marriage and Religious Freedom Act that was introduced in the last Congress and was sponsored by 103 Representatives and 17 Senators. It is also similar to an exemption proposal first offered by a group of law professors in 2009, although that group subsequently modified its proposal to limit it to small businesses and include a hardship exemption that would require services to be provided when no other business was available to provide them. The group has also suggested that states could make a race exception to the religious exemption if they are concerned about the exemption allowing discrimination against interracial couples. (The Louisiana proposal, like its federal counterpart, begins with the following finding: Leading legal scholars concur that conflicts between religious liberty and changing ideas about the institution of marriage are very real, rapidly increasing, and should be addressed by legislation.) (note: the federal version explicitly says same-sex marriage in this finding, rather than changing ideas about the institution of marriage). I have argued that exemptions designed to allow businesses to refuse services and benefits to same-sex couples, such as the exemption proposed in Louisiana (and previously, in Oklahoma, Oregon, Washington, Minnesota, Kansas, South Dakota, Tennessee, and the U.S. Congress), would be vulnerable to challenge under the Equal Protection Clause. Others have argued that they would be vulnerable to Establishment Clause challenge. I suspect both arguments, however, would be strongly disputed by proponents
And One vote for Cert Denied
I am wondering whether, on the assumption that the Supreme Court decides a constitutional right to same-sex marriage exists, the justices should for a five-ten year period adopt a policy of denying cert when cases arise raising the sort of issues we are discussing. Of course, the justices infamously adopted that strategy in Brown, but here this seems more defensible. Same-sex couples will be able, legally and practically, in all states to get married, even if a few justices of the peace do not issue licenses. And in five or ten years we will be able to work out better than we can now whether wedding photographers who refuse to photograph same-sex weddings merely create inconveniences that seem best ignored, given their religious beliefs, or represent a serious threat to the dignity rights of same-sex couples. MAG ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Excellent post, Hillel. I agree with you and also see the current situation as deeply sad and tragic. Alan Sent from my iPhone On Apr 6, 2015, at 9:21 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: In an ideal world I would stand with Sandy's plea for magnanimity. I tend towards a compromise view of the world in general, and I believe there could be room for compromise here as well. I'd go even further and say that religious folks and LGBTQ folks are fellow travelers who should be able to find common cause. The history (recent and historical) of repression, discrimination, rejection, victimization, and dehumanization is central to both groups' experiences. Moreover, at their core both groups are engaged in the deep search for truth, meaning, identity, love, and the true self. Would both groups affirm this of the other, I believe there could be common purpose that eclipses that which divides. Unfortunately, in the real world I don't see that happening. Frankly, I lay the blame primarily at the feet of religious conservatives, including some among my own orthodox Jewish coreligionists. For decades and longer, many religious conservatives have (and indeed continue to) denied the basic humanity and dignity of LGBTQ individuals. Not all religious conservatives have, of course, but it has been a constant refrain in our political and social discourse. Too many LGBTQ individuals to count have been cast out of their natural families and their religious families. In my view, this represents both a failure of practical political judgment (the writing was on the wall about SSM and the ascendancy of gay rights at least two decades ago) and a failure of empathy and magnanimity on the part of religious conservatives. One tends to reap what one sows. Most of us, I think, want to be accepted wholly by others. Those who have been consistently victimized and rejected by others are probably more sensitive to dignitary harms that others might brush off or simply accept or ignore. There is something rich and ironic about religious individuals now demanding special treatment and acceptance of their different lifestyles and beliefs from the very people whom they have vilified and continue, in many cases, to vilify. It would be nice for LGBTQ people to turn the other cheek as Sandy suggests; but gee, that's a lot to ask of people. To be clear, I view all of this as deeply, deeply tragic. And it answers neither the constitutional nor the policy questions. But descriptively, that's what I think is going on. When all is said and done, I find it difficult to expect that LGBTQ advocacy groups--now finally enjoying a measure of political success and social acceptance (though by no means complete)--to simply stop demanding full legal and social equality. When they see groups taking actions that would undermine their legal and social standing and dignity, I dont blame them for organizing politically and attempting to stop them in their tracks. I can't fault them for being unmoved by pleas for acceptance, dignity, and space from the very same people (and fellow travelers) who have, and indeed continue to, denied them the same. I hope that one day we will be able to put this tragedy behind us. It is not a surprise to me that Mormons in Utah--who know a thing or two about repression, rejection, dehumanization, and discrimination--were the first to quite publicly and effectively extend a hand. Whatever one thinks of the ultimate product of that effort, the sentiment seems to me to be the right one. The onus is on other, more mainstream religious conservatives who are used to holding political and social clout to extend that hand. I just don't think that day is coming soon. On Monday, April 6, 2015, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: If one treats the issue as state mandated art (in the absence of conditional funding, at least), I agree with Mark S. Am I correct in assuming that Mark's caveat doesn't apply to the wedding cake, at least if we're talking about off the rack cakes? I assume also this wouldn't apply to the caterers or tent rentals etc. And do we have to decide who is a genuine artist? Imagine a caricaturist who often draws pictures of wedding guests as amusing souvenirs. Would she be able to decline the offer of employment? If all of this intense and acrimonious discussion boils down to a few wedding photographers, I'm inclined to say that we who support same-sex marriage can afford to be magnanimous in what has clearly become our victory. But am I correct in this presumption? Sandy Sent from my iPhone On Apr 6, 2015, at 6:38 PM, Scarberry, Mark mark.scarbe...@pepperdine.edujavascript:; wrote: In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why
Re: FW: Eugene's Blog Post on Liberals and Exemption Rights
Fundamentally for the reason Tom Berg gave in a somewhat later post: this claim does not seek merely to exempt the religious objector, but also to prevent anyone else from delivering contraception either. I think the claim of burden is too attenuated to be substantial, but the attempt to prevent others from delivering contraception turns it into more of a clear line and not just an assessment of attenuation. And as I think Posner was the first to point out: the employer sending the notice does not trigger the insurer's obligation to provide contraception. The insurer already has that obligation, in all its plans. The employer's notice triggers only the obligation to remove contraception from the employer's plan, and to provide it outside the plan instead of inside. And I would be quite content with a holding that there is a compelling interest in having somebody provide contraception. That is quite different from a claim of compelling interest in requiring the religious objector to do it. On Mon, 6 Apr 2015 18:53:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: FW: Eugene's Blog Post on Liberals and Exemption Rights
I accept Mark's apology. His point about RFRA critics overstating the potential downside is precisely met by commenting about how RFRA's friends tend to understate the potential harmful effects, which include encouraging discrimination as much as actually legalizing it.. We all know that it is impossible to predict, with 100% confidence, future RFRA interpretations. Or, as I told a Wa Po reporter, RFRA's are a Rorschach test, on which everyone can project their hopes and fears, and cannot be proven wrong until the courts resolve particular questions (and even the resolutions are fact-specific, so we don't learn much from RFRA judicial precedents.). A version of that shows up in this on-line story: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/06/what-everybody-missed-during-the-fight-over-religious-freedom-laws-this-year/ Doug and Tom just underline my point in their posts about the legality of the accommodation. They would both draw the line between Hobby Lobby (a RFRA violation) and Notre Dame (no violation). But somewhere 0 and 9 Justices don't agree with that line; even AMK may rule in favor of Notre Dame. The other 8 4-4) might say Hobby Lobby and Notre Dame should both win, or both lose. Perhaps no Justice would draw the line where Tom and Doug draw it. This is among the reasons why, in the Symposium that Tom references, I say religious exemptions under a generic regime, with vague standards, are a dubious enterprise. http://harvardjlg.com/wp-content/uploads/2015/01/Hobby-Lobby-and-the-Dubious-Enterprise-of-Religious-Exemptions.pdf. I also say that the Hobby Lobby principle will wither in its strength over time, the way Sherbert-Yoder-Thomas did on the path to Emp. Div. v. Smith. But who can possibly be sure about such things? So it's fine to write to legislators that a RFRA might produce bad results, though we hope it won't; or that RFRA will protect only small wedding vendors, and only then when there are adequate alternatives. Those are hedged predictions, not falsehoods about facts on the ground. On Mon, Apr 6, 2015 at 8:59 PM, Douglas Laycock dlayc...@virginia.edu wrote: Fundamentally for the reason Tom Berg gave in a somewhat later post: this claim does not seek merely to exempt the religious objector, but also to prevent anyone else from delivering contraception either. I think the claim of burden is too attenuated to be substantial, but the attempt to prevent others from delivering contraception turns it into more of a clear line and not just an assessment of attenuation. And as I think Posner was the first to point out: the employer sending the notice does not trigger the insurer's obligation to provide contraception. The insurer already has that obligation, in all its plans. The employer's notice triggers only the obligation to remove contraception from the employer's plan, and to provide it outside the plan instead of inside. And I would be quite content with a holding that there is a compelling interest in having somebody provide contraception. That is quite different from a claim of compelling interest in requiring the religious objector to do it. On Mon, 6 Apr 2015 18:53:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
