Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

At the risk of repeating myself: The bathroom issue isn’t the main reason why 
the NC statute is unconstitutional. The main reason is that the NC statute 
affirmatively prohibits all local governments from enacting any 
anti-discrimination protections for LGBT individuals; it’s unconstitutional for 
the same reason that the ordinance at issue in Romer was unconstitutional.

That’s why I presented the hypos that I did; I’ll reproduce them below. You’d 
agree that both of these hypothetical state laws would be unconstitutional, yes?

1. It’s 1963, and Charlotte has passed a law prohibiting employers and public 
accommodations from discriminating on the basis of race. North Carolina, 
responding to pressure from organizations with religious objections to the 
mixing of the races, passes a law wiping away the Charlotte race-discrimination 
law and prohibiting any local entities from barring race discrimination in 
employment or public accommodations.

2. It’s 1963, and Charlotte’s civil-rights activists are urging the city to 
pass a law prohibiting employers and public accommodations from discriminating 
on the basis of race. North Carolina, responding to pressure from organizations 
with religious objections to the mixing of the races, and seeking to ensure 
that African-Americans do not obtain any civil-rights protections at the local 
level, passes a law prohibiting religious discrimination and expressly 
prohibiting local entities from barring any other category of discrimination, 
including discrimination on the basis of race.







On Apr 1, 2016, at 10:14 PM, Will Esser 
<willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote:

Greg,

I'm having a hard time understanding the equal protection argument.  Under the 
law, everybody gets to use a bathroom / shower / locker room.  The facilities 
are equal (each has essentially the same equipment, putting urinals aside).

The only question is who else will be in the bathroom / shower / locker room at 
the same time.

Are you saying that there is a fundamental constitutional right to use a 
specific bathroom / shower / locker room based on the sex with which a person 
identifies at a certain point in time (keeping in mind that such identification 
is said to evolve over time)? Or are you saying that the privacy concerns that 
Eugene points out (including the religiously motivated privacy concerns) are 
not real and legitimate concerns?

Will

Will Esser


____
From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, April 1, 2016 5:27 PM
Subject: Re: The Charlotte City Ordinance and Religious Freedom

Yes, when the state is singling out a disfavored group and acting to prevent 
them from obtaining local protection – or stripping away existing protection – 
then that is an equal-protection violation. The NC legislation went out of its 
way to explicitly preempt local discrimination ordinances, even as it took 
steps to preserve local authority in other areas addressed by the law (for 
instance, it preserved certain local wage authority in the minimum-wage portion 
of the law). Nothing, as I understand it, prevented the legislature from saying 
(1) here are the categories that we protect, but that (2) nothing prevents 
local jurisdictions from protecting additional groups.

Let me tweak my race-discrimination hypo for a moment:

It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a 
law prohibiting employers and public accommodations from discriminating on the 
basis of race. North Carolina, responding to pressure from organizations with 
religious objections to the mixing of the races, and seeking to ensure that 
African-Americans do not obtain any civil-rights protections at the local 
level, passes a law prohibiting religious discrimination and expressly 
prohibiting local entities from barring any other category of discrimination, 
including discrimination on the basis of race.

Constitutional?




On Apr 1, 2016, at 5:07 PM, Will Esser 
<willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote:

I don't think that was overlooked at all.  In fact, Prof. Wallace specifically 
addressed that point when he talked about the fact that local NC municipalities 
have no power or authority of any kind other than what is expressly granted to 
them by the state (i.e. the "Dillon Rule").  That is simply how towns and 
cities are established in NC.  By contrast, it appears the Dillon Rule is only 
followed for certain municipalities in Colorado (presumably not those involved 
in Romer since that case involved a constitutional amendment).  This cite 
provides information on each state: 
http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powe

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

Yes, when the state is singling out a disfavored group and acting to prevent 
them from obtaining local protection – or stripping away existing protection – 
then that is an equal-protection violation. The NC legislation went out of its 
way to explicitly preempt local discrimination ordinances, even as it took 
steps to preserve local authority in other areas addressed by the law (for 
instance, it preserved certain local wage authority in the minimum-wage portion 
of the law). Nothing, as I understand it, prevented the legislature from saying 
(1) here are the categories that we protect, but that (2) nothing prevents 
local jurisdictions from protecting additional groups.

Let me tweak my race-discrimination hypo for a moment:

It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a 
law prohibiting employers and public accommodations from discriminating on the 
basis of race. North Carolina, responding to pressure from organizations with 
religious objections to the mixing of the races, and seeking to ensure that 
African-Americans do not obtain any civil-rights protections at the local 
level, passes a law prohibiting religious discrimination and expressly 
prohibiting local entities from barring any other category of discrimination, 
including discrimination on the basis of race.

Constitutional?




On Apr 1, 2016, at 5:07 PM, Will Esser 
<willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote:

I don't think that was overlooked at all.  In fact, Prof. Wallace specifically 
addressed that point when he talked about the fact that local NC municipalities 
have no power or authority of any kind other than what is expressly granted to 
them by the state (i.e. the "Dillon Rule").  That is simply how towns and 
cities are established in NC.  By contrast, it appears the Dillon Rule is only 
followed for certain municipalities in Colorado (presumably not those involved 
in Romer since that case involved a constitutional amendment).  This cite 
provides information on each state: 
http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority<http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority>

So, since local municipalities have no life or power on their own and the NC 
legislature decides to make it expressly clear that they have no life or power 
on their own in a certain area, then your argument seems to imply that the NC 
legislature cannot constitutionally remove that power once the local 
municipality has acted to pass a certain non-discrimination provision.  If that 
is not your position, then I hope you will clarify.  Because I certainly 
understand that the NC legislative bill affirmatively bars local municipalities 
from passing non-discrimination laws which are broader than the state bill.  
The point is that is how the Dillon Rule works.

Will Esser


________
From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>>; Law & 
Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, April 1, 2016 4:54 PM
Subject: Re: The Charlotte City Ordinance and Religious Freedom

No, I’m talking the difference between (1) deciding whom to protect and not 
protect, and (2) affirmatively barring local entities from protecting those 
groups – the latter is what’s happening in NC, and it continues to be 
overlooked in Professor Wallace’s and Will’s hypotheticals. The timing simply 
makes the context even clearer.


On Apr 1, 2016, at 4:49 PM, Will Esser 
<willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote:

Greg,

So if the NC legislature passes the antidiscrimination law a week before the 
Charlotte City Council takes up the proposed Charlotte ordinance, the NC bill 
is constitutional (since you agree that "NC can pass whatever 
antidiscrimination law it likes?")  But since the NC legislature passed the 
antidiscrimination law after the Charlotte City Council passed the ordinance 
(but before that ordinance became law), that makes the NC legislature's bill 
unconstitutional?

That seems to play right into Prof. Wallace's point about empowering a single 
locality in NC to forever bind the NC General Assembly if the locality acted 
first.

Will Esser



From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, April 1, 2016 4:12 PM
Subject: Re: The Charlotte City Ordinance and Religious Freedom

That’s not what I’m saying at all. NC can pass whatever antidiscrimination law 
it likes, but it went out of its way to preempt local antidiscrimination 
protections. (The latter situati

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

No, I’m talking the difference between (1) deciding whom to protect and not 
protect, and (2) affirmatively barring local entities from protecting those 
groups – the latter is what’s happening in NC, and it continues to be 
overlooked in Professor Wallace’s and Will’s hypotheticals. The timing simply 
makes the context even clearer.


On Apr 1, 2016, at 4:49 PM, Will Esser 
<willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote:

Greg,

So if the NC legislature passes the antidiscrimination law a week before the 
Charlotte City Council takes up the proposed Charlotte ordinance, the NC bill 
is constitutional (since you agree that "NC can pass whatever 
antidiscrimination law it likes?")  But since the NC legislature passed the 
antidiscrimination law after the Charlotte City Council passed the ordinance 
(but before that ordinance became law), that makes the NC legislature's bill 
unconstitutional?

That seems to play right into Prof. Wallace's point about empowering a single 
locality in NC to forever bind the NC General Assembly if the locality acted 
first.

Will Esser


____
From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, April 1, 2016 4:12 PM
Subject: Re: The Charlotte City Ordinance and Religious Freedom

That’s not what I’m saying at all. NC can pass whatever antidiscrimination law 
it likes, but it went out of its way to preempt local antidiscrimination 
protections. (The latter situation is also what happened in Romer.)

Let me end with the following analogy: It’s 1963, and Charlotte has passed a 
law prohibiting employers and public accommodations from discriminating on the 
basis of race. North Carolina, responding to pressure from organizations with 
religious objections to the mixing of the races, passes a law wiping away the 
Charlotte race-discrimination law and prohibiting any local entities from 
barring race discrimination in employment or public accommodations. Are you 
saying that NC state law would be constitutional?



On Apr 1, 2016, at 4:06 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

Nice quote about the dog. So, what your saying is that the US Constitution 
empowers a single locality in NC to bind the NC General Assembly from passing a 
statewide nondiscrimination law if it’s inconsistent with what that locality 
has adopted?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 3:56 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

Starting on a clean slate and defeating an amendment to add a particular 
protected category doesn’t seem suspect by itself. But adopting legislation 
that is designed to affirmatively removes the possibility of local 
antidiscrimination protections for all LGBT people (and as Doug and others have 
pointed out at length, the NC law does far more than revoke transgender 
people’s access to the restroom that is consistent with their gender) is quite 
a different story. I don’t think you can say it’s merely “not given [LGBT] 
persons everything they want” – it’s revoking existing local protections, and 
taking away the ability to obtain those local protections in the future. I hate 
to point out the obvious, but “[e]ven a dog knows the difference between being 
kicked and being stumbled over.”







On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

You assume that not giving transgender persons everything they want 
impermissibly targets them because of the bare desire to harm. But that goes 
back to the earlier questions in my post. If the NC legislature, because of 
privacy and safety concerns, wants preempt local ordinances granting 
transgender persons access to the bathrooms of their choice, why is that 
necessarily “targeting” motivated by animus rather than a permissible balancing 
of conflicting privacy interests?

Suppose SOGI is not included in a state's nondiscrimination laws. During the 
legislative session, a proposed amendment to include SOGI is introduced, but 
fails. Has the legislature “targeted” a discrete group in violation of Romer? 
What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. 
Same result?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 3:21 PM
To: Law & Religion iss

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

That’s not what I’m saying at all. NC can pass whatever antidiscrimination law 
it likes, but it went out of its way to preempt local antidiscrimination 
protections. (The latter situation is also what happened in Romer.)

Let me end with the following analogy: It’s 1963, and Charlotte has passed a 
law prohibiting employers and public accommodations from discriminating on the 
basis of race. North Carolina, responding to pressure from organizations with 
religious objections to the mixing of the races, passes a law wiping away the 
Charlotte race-discrimination law and prohibiting any local entities from 
barring race discrimination in employment or public accommodations. Are you 
saying that NC state law would be constitutional?



On Apr 1, 2016, at 4:06 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

Nice quote about the dog. So, what your saying is that the US Constitution 
empowers a single locality in NC to bind the NC General Assembly from passing a 
statewide nondiscrimination law if it’s inconsistent with what that locality 
has adopted?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 3:56 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

Starting on a clean slate and defeating an amendment to add a particular 
protected category doesn’t seem suspect by itself. But adopting legislation 
that is designed to affirmatively removes the possibility of local 
antidiscrimination protections for all LGBT people (and as Doug and others have 
pointed out at length, the NC law does far more than revoke transgender 
people’s access to the restroom that is consistent with their gender) is quite 
a different story. I don’t think you can say it’s merely “not given [LGBT] 
persons everything they want” – it’s revoking existing local protections, and 
taking away the ability to obtain those local protections in the future. I hate 
to point out the obvious, but “[e]ven a dog knows the difference between being 
kicked and being stumbled over.”







On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

You assume that not giving transgender persons everything they want 
impermissibly targets them because of the bare desire to harm. But that goes 
back to the earlier questions in my post. If the NC legislature, because of 
privacy and safety concerns, wants preempt local ordinances granting 
transgender persons access to the bathrooms of their choice, why is that 
necessarily “targeting” motivated by animus rather than a permissible balancing 
of conflicting privacy interests?

Suppose SOGI is not included in a state's nondiscrimination laws. During the 
legislative session, a proposed amendment to include SOGI is introduced, but 
fails. Has the legislature “targeted” a discrete group in violation of Romer? 
What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. 
Same result?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 3:21 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

It seems rather clear from all of the surrounding circumstances that the NC law 
did in fact target a discrete group, and did so for the purpose of abrogating 
specific local anti-discrimination laws protecting members of those groups. 
Courts will not have to pretend otherwise.


On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

Unlike Romer, NC law does not specifically target any discrete group, unless it 
targets by omission. If so, then it still has not targeted a omitted single 
group but rather several omitted groups.

Also, under NC law, any nondiscrimination law passed by the state legislature 
will necessarily bind local governments from adopting laws inconsistent with 
it. So we’re back to the question of whether the Constitution requires that NC 
include SOGI in any nondiscrimination law it passes. If so, what other 
protected classes also must be included?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 2:59 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<m

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

Starting on a clean slate and defeating an amendment to add a particular 
protected category doesn’t seem suspect by itself. But adopting legislation 
that is designed to affirmatively removes the possibility of local 
antidiscrimination protections for all LGBT people (and as Doug and others have 
pointed out at length, the NC law does far more than revoke transgender 
people’s access to the restroom that is consistent with their gender) is quite 
a different story. I don’t think you can say it’s merely “not given [LGBT] 
persons everything they want” – it’s revoking existing local protections, and 
taking away the ability to obtain those local protections in the future. I hate 
to point out the obvious, but “[e]ven a dog knows the difference between being 
kicked and being stumbled over.”







On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

You assume that not giving transgender persons everything they want 
impermissibly targets them because of the bare desire to harm. But that goes 
back to the earlier questions in my post. If the NC legislature, because of 
privacy and safety concerns, wants preempt local ordinances granting 
transgender persons access to the bathrooms of their choice, why is that 
necessarily “targeting” motivated by animus rather than a permissible balancing 
of conflicting privacy interests?

Suppose SOGI is not included in a state's nondiscrimination laws. During the 
legislative session, a proposed amendment to include SOGI is introduced, but 
fails. Has the legislature “targeted” a discrete group in violation of Romer? 
What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. 
Same result?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 3:21 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

It seems rather clear from all of the surrounding circumstances that the NC law 
did in fact target a discrete group, and did so for the purpose of abrogating 
specific local anti-discrimination laws protecting members of those groups. 
Courts will not have to pretend otherwise.


On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

Unlike Romer, NC law does not specifically target any discrete group, unless it 
targets by omission. If so, then it still has not targeted a omitted single 
group but rather several omitted groups.

Also, under NC law, any nondiscrimination law passed by the state legislature 
will necessarily bind local governments from adopting laws inconsistent with 
it. So we’re back to the question of whether the Constitution requires that NC 
include SOGI in any nondiscrimination law it passes. If so, what other 
protected classes also must be included?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 2:59 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

I don’t have time to respond to all of this, but on the latter few paragraphs: 
there is a difference between a state (1) not providing statewide protection 
for members of a particular group, and (2) affirmatively preventing all local 
governments from protecting members of that group. The latter is what’s going 
on here, and it’s also what the Supreme Court held was unconstitutional in 
Romer v. Evans.


On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

A couple of points on background . . .

North Carolina is a “Dillon Rule” state where municipalities are limited to 
exercising those powers that are “expressly conferred” or “necessarily implied” 
from enabling legislation passed by the state legislature. The NC state 
legislature has never delegated to cities generally, or to Charlotte 
specifically, express authority to adopt public accommodations ordinances. 
Local ordinances must be in harmony with state law; whenever the two conflict, 
local law must give way.

Because of NC Constitution’s prohibition on local acts that regulate labor or 
trade (Art. II, §24(1)(j), the NC legislature could not, as some have 
suggested, pass a law that simply overruled the Charlotte ordinance.

The NC Supreme Court in 2003 held that the state legislature had acted 
unconstitutionally by authorizing a single county to enact and enforce a local 

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

It seems rather clear from all of the surrounding circumstances that the NC law 
did in fact target a discrete group, and did so for the purpose of abrogating 
specific local anti-discrimination laws protecting members of those groups. 
Courts will not have to pretend otherwise.


On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

Unlike Romer, NC law does not specifically target any discrete group, unless it 
targets by omission. If so, then it still has not targeted a omitted single 
group but rather several omitted groups.

Also, under NC law, any nondiscrimination law passed by the state legislature 
will necessarily bind local governments from adopting laws inconsistent with 
it. So we’re back to the question of whether the Constitution requires that NC 
include SOGI in any nondiscrimination law it passes. If so, what other 
protected classes also must be included?


From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Friday, April 1, 2016 at 2:59 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: The Charlotte City Ordinance and Religious Freedom

I don’t have time to respond to all of this, but on the latter few paragraphs: 
there is a difference between a state (1) not providing statewide protection 
for members of a particular group, and (2) affirmatively preventing all local 
governments from protecting members of that group. The latter is what’s going 
on here, and it’s also what the Supreme Court held was unconstitutional in 
Romer v. Evans.


On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory 
<walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote:

A couple of points on background . . .

North Carolina is a “Dillon Rule” state where municipalities are limited to 
exercising those powers that are “expressly conferred” or “necessarily implied” 
from enabling legislation passed by the state legislature. The NC state 
legislature has never delegated to cities generally, or to Charlotte 
specifically, express authority to adopt public accommodations ordinances. 
Local ordinances must be in harmony with state law; whenever the two conflict, 
local law must give way.

Because of NC Constitution’s prohibition on local acts that regulate labor or 
trade (Art. II, §24(1)(j), the NC legislature could not, as some have 
suggested, pass a law that simply overruled the Charlotte ordinance.

The NC Supreme Court in 2003 held that the state legislature had acted 
unconstitutionally by authorizing a single county to enact and enforce a local 
ordinance prohibiting discrimination in employment. The court said that if the 
legislature was going to address employment discrimination by means of a state 
statute, it had to adopt a statewide law applicable to employers regardless of 
where they are located in the state. Interestingly, the court emphasized that 
authorizing such local statutes “could lead to a balkanization of the state’s 
employment discrimination laws, creating a patchwork of standards varying from 
county to county. The end result would be the ‘conglomeration of innumerable 
discordant communities’ that Article II, Section 24 was enacted to avoid.”

Now to HB2 . . .

The argument of those who criticize HB2 seems to come down to this: NC has 
impermissibly discriminated against and shown animus toward transgender persons 
because it did not give them the right to use the bathroom of their choice.

Why does it necessarily show animus towards transgender persons if the NC 
legislature decides that it can’t give transgender persons everything they 
want? Why can’t NC say to transgender persons, “We understand your privacy 
needs and HB2 will specifically permit accommodations for transgender persons 
in public schools and other government facilities in the form of 
single-occupancy or controlled-use bathrooms. But we also have to balance your 
privacy needs with the privacy and safety concerns of non-transgendered 
persons. Given those concerns, we will require that multi-occupancy bathrooms, 
locker rooms, etc. be differentiated on the basis of biological sex.”?

Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker 
rooms are a zero-sum game—whatever is gained by one side is lost by the other. 
The two transgendered plaintiffs in the lawsuit allege that using the bathroom 
other than the one of their choice will make them feel distressed and 
uncomfortable. While transgendered persons have legitimate privacy concerns, so 
do non-transgendered persons, who will be required to disrobe, shower, and 
perform personal bodily functions in the presence of those with intimate body 
parts different than their own. The reason we have separate sex-specific

Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

I don’t have time to respond to all of this, but on the latter few paragraphs: 
there is a difference between a state (1) not providing statewide protection 
for members of a particular group, and (2) affirmatively preventing all local 
governments from protecting members of that group. The latter is what’s going 
on here, and it’s also what the Supreme Court held was unconstitutional in 
Romer v. Evans.


On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory 
> wrote:

A couple of points on background . . .

North Carolina is a “Dillon Rule” state where municipalities are limited to 
exercising those powers that are “expressly conferred” or “necessarily implied” 
from enabling legislation passed by the state legislature. The NC state 
legislature has never delegated to cities generally, or to Charlotte 
specifically, express authority to adopt public accommodations ordinances. 
Local ordinances must be in harmony with state law; whenever the two conflict, 
local law must give way.

Because of NC Constitution’s prohibition on local acts that regulate labor or 
trade (Art. II, §24(1)(j), the NC legislature could not, as some have 
suggested, pass a law that simply overruled the Charlotte ordinance.

The NC Supreme Court in 2003 held that the state legislature had acted 
unconstitutionally by authorizing a single county to enact and enforce a local 
ordinance prohibiting discrimination in employment. The court said that if the 
legislature was going to address employment discrimination by means of a state 
statute, it had to adopt a statewide law applicable to employers regardless of 
where they are located in the state. Interestingly, the court emphasized that 
authorizing such local statutes “could lead to a balkanization of the state’s 
employment discrimination laws, creating a patchwork of standards varying from 
county to county. The end result would be the ‘conglomeration of innumerable 
discordant communities’ that Article II, Section 24 was enacted to avoid.”

Now to HB2 . . .

The argument of those who criticize HB2 seems to come down to this: NC has 
impermissibly discriminated against and shown animus toward transgender persons 
because it did not give them the right to use the bathroom of their choice.

Why does it necessarily show animus towards transgender persons if the NC 
legislature decides that it can’t give transgender persons everything they 
want? Why can’t NC say to transgender persons, “We understand your privacy 
needs and HB2 will specifically permit accommodations for transgender persons 
in public schools and other government facilities in the form of 
single-occupancy or controlled-use bathrooms. But we also have to balance your 
privacy needs with the privacy and safety concerns of non-transgendered 
persons. Given those concerns, we will require that multi-occupancy bathrooms, 
locker rooms, etc. be differentiated on the basis of biological sex.”?

Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker 
rooms are a zero-sum game—whatever is gained by one side is lost by the other. 
The two transgendered plaintiffs in the lawsuit allege that using the bathroom 
other than the one of their choice will make them feel distressed and 
uncomfortable. While transgendered persons have legitimate privacy concerns, so 
do non-transgendered persons, who will be required to disrobe, shower, and 
perform personal bodily functions in the presence of those with intimate body 
parts different than their own. The reason we have separate sex-specific 
bathrooms and locker rooms is because men and women have different bodies and 
we want to protect privacy related to our bodies, not our gender identity.

Transgender persons—at least the two plaintiffs in the NC lawsuit—do not want 
to use single-occupancy bathrooms because they say it stigmatizes them. A lot 
of people prefer single-occupancy bathrooms because it better suits their 
privacy preferences, but don’t feel stigmatized.

So, back to the question: Why is NC constitutionally required to balance its 
citizens’ privacy interests in favor of permitting transgender persons access 
to the bathroom or locker room of their choice? Must it give transgender 
persons everything they ask for to avoid showing animus?

Regarding the new NC public accommodation law, the argument is similar: NC has 
discriminated against and shown animus toward gays, lesbians, and transgender 
persons because it did not include them as protected classes in HB2.

Federal public accommodations law protects only against discrimination on the 
basis of race, color, religion, and national origin. Federal laws that forbid 
discrimination in employment and education do not specify sexual orientation, 
gender identity, and gender expression as protected classes. Public 
accommodation laws don’t include sexual orientation and gender identity in 32 
states and employment discrimination laws in 30 states do 

Re: New order in Zubik

[Greg Lipper]

I have a couple of preliminary thoughts about this order:

http://blogs.harvard.edu/billofhealth/2016/03/29/about-that-order-for-supplemental-briefing-in-zubik-v-burwell/


On Mar 29, 2016, at 2:41 PM, Laycock, H Douglas (hdl5c) 
> wrote:

The Court wants supplemental briefing on whether the government can make the 
insurance companies do this without requiring any notice or letter from the 
employer.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

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Re: Zubik preview series

[Greg Lipper]

Here is the sixth and final post of my Zubik series on the Bill of Health blog:

http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-6-the-accommodation-is-the-least-restrictive-option/

Hope to see some of you at SCOTUS on Wednesday.

Greg


On Mar 22, 2016, at 6:16 PM, Greg Lipper <lip...@au.org<mailto:lip...@au.org>> 
wrote:

If anyone’s looking for yet more stuff to read about Zubik and the 
contraception cases, I’m working on a six-part series over at Harvard Law 
School’s Bill of Health blog.

Parts 1 through 5 are below; part 6 will be up later tonight.

http://blogs.harvard.edu/billofhealth/2016/03/16/zubik-v-burwell-part-1-why-paperwork-does-not-burden-religious-exercise/

http://blogs.harvard.edu/billofhealth/2016/03/17/zubik-v-burwell-part-2-the-religious-objectors-who-cried-wolf/

http://blogs.harvard.edu/billofhealth/2016/03/19/zubik-v-burwell-part-3-birth-control-is-not-abortion/

http://blogs.harvard.edu/billofhealth/2016/03/21/zubik-v-burwell-part-4-the-compelling-interest-in-contraceptive-coverage/

http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-5-these-exceptions-are-unexceptional/



Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church & State




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Zubik preview series

[Greg Lipper]

If anyone’s looking for yet more stuff to read about Zubik and the 
contraception cases, I’m working on a six-part series over at Harvard Law 
School’s Bill of Health blog.

Parts 1 through 5 are below; part 6 will be up later tonight.

http://blogs.harvard.edu/billofhealth/2016/03/16/zubik-v-burwell-part-1-why-paperwork-does-not-burden-religious-exercise/

http://blogs.harvard.edu/billofhealth/2016/03/17/zubik-v-burwell-part-2-the-religious-objectors-who-cried-wolf/

http://blogs.harvard.edu/billofhealth/2016/03/19/zubik-v-burwell-part-3-birth-control-is-not-abortion/

http://blogs.harvard.edu/billofhealth/2016/03/21/zubik-v-burwell-part-4-the-compelling-interest-in-contraceptive-coverage/

http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-5-these-exceptions-are-unexceptional/



Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church & State



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Re: Eugene's Blog Post on Liberals and Exemption Rights

[Greg Lipper]

Beyond the question of commerce/non-commerce, there is a broader distinction 
between accommodations that harm others and accommodations that do not. This 
distinction was reflected in the Supreme Court’s opinions in United States v. 
Lee (among other pre-Smith cases), Cutter v. Wilkinson (upholding RLUIPA 
against Establishment Clause challenge), and in Justice Ginsburg’s dissent in 
Hobby Lobby and concurrence in Holt v. Hobbs.

Quite apart from Hobby Lobby’s status as a for-profit corporation, we 
(Americans United) opposed the Hobby Lobby exemption because it had the effect 
of stripping otherwise available healthcare coverage from employees’ 
compensation. We would have opposed that exemption even if the company was not 
a for-profit corporation – there were innocent third parties who were losing an 
important part of their employment compensation as a result of the exemption.

There are some accommodations (a prisoner who wants to wear a beard, an 
individual who wants to use peyote (or wine, for that matter) as part of a 
religious ceremony, etc. etc.) that do not harm third parties. There are others 
(withholding healthcare from others, exemptions from antidiscrimination law) 
that harm third parties directly. That distinction was respected in the 
pre-Smith cases and highlighted again in Cutter, but it has come under attack 
in recent rounds of RFRA litigation.



On Apr 1, 2015, at 2:51 PM, Gaubatz, Derek 
dgaub...@imb.orgmailto:dgaub...@imb.org wrote:

“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including 
liberal organizations, professors, and politicians — largely continue to 
support religious exemptions for individuals, while opposing the extension of 
such exemptions to commercial businesses.

I’m not sure I’m seeing the principled distinction.   Do not many individuals 
depend for their livelihood on commercial businesses?   Why do liberals see the 
conscience of individuals like Sherbert or Thomas worthy of protection, but the 
conscience of an individual photographer, florist, baker, or bed and breakfast 
owner less worthy of protection?Justice Kagan, at least back in 1996 when 
she was in the Clinton White House, appeared to recognize that the consciences 
of individuals operating small commercial businesses was worthy of protection 
under a RFRA regime.   Commenting on the short shrift given to the claim of a 
Evelyn Smith who, for religious reasons, did not want to rent one of her units 
to a co-habitating couple, Kagan noted that the court’s reasoning was 
“outrageous.”   She wrote that it was “almost as if a court were to hold that a 
state law does not impose a substantial burden on religion because the 
complainant is free to move to another state.”  
http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, April 01, 2015 2:25 PM
To: Law  Religion issues for Law Academics
Subject: Eugene's Blog Post on Liberals and Exemption Rights

Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ 
(sensible) retreat from the old Justice Brennan/ACLU position on religious 
exemptions. The piece is lengthy, and I recommend folks read it in full, but I 
want to take issue with the following assertion at the heart of Eugene's 
analysis:
Yes, religious objectors can use these RFRAs to try to get exemptions from 
antidiscrimination laws. But religious objectors could have done the same under 
the Sherbert-era Free Exercise Clause that the ACLU had long championed.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/

Insofar as we're talking about discrimination in the commercial marketplace, 
which is the context generating almost all of the liberal concerns about 
exemptions today, I have to disagree with Eugene's characterization of the law 
in the Sherbert era. Indeed, I make precisely the opposite argument at length 
in Part II of the following 
piece:http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/
 (The Real Issue: The Unprecedented Expansion of Exemption Rights into the 
Commercial Realm).

Nowhere in his post does Eugene acknowledge either United States v. Lee, which 
is the only Sherbert-era case in which the Court explicitly addressed the issue 
of commercial exemptions, or Piggie Park, where the Court dismissed a 
commercial businesses' claim for an exemption from an antidiscrimination law as 
patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert 
dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is 
difficult to understand how they are a better representation of the 
Sherbert-era law than the following explicit statement of the Court in Lee, 
which was joined by Justice Brennan 

Re: Amazing what Hobby Lobby has wrought

[Greg Lipper]

Ryan’s candor is refreshing: he very much wants businesses to be able to 
discriminate against same-sex couples, and he thinks that state RFRAs are 
important to that goal. That’s precisely why sports leagues, pharmaceutical 
companies, technology companies, and even certain houses of worship are 
reacting so strongly to the Indiana RFRA.


On Mar 27, 2015, at 2:41 PM, Ryan T. Anderson 
ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote:

The Green family not paying for an employee's abortifacients, and a 70-year old 
grandmother not making floral arrangements for a same-sex wedding is becoming 
the political equivalent of a state adopting the confederate flag, or refusing 
to recognize MLK Day.  Good to know.

The reactions to AZ and IN RFRAs strike me much more about the political left 
wanting to impose its values on Americans than anything to do with religious 
liberty itself.  Strikes me much more about those who favor government coercion 
to impose comprehensive liberalism no longer mouthing the platitudes of 
Rawlsian political liberalism.  So, yes, you're right, there has been a major 
shift.



On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Before the ruling -- but not before the lower court decisions and the slew of 
briefs --including by many Catholic groups that were insistent upon reading 
RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did 
(indeed, more so).

The converse point works, too:  If the Court had issued a Lee-like 9-0 
decision, there wouldn't now be much of an opposition to state RFRAs (but not 
nearly the same impetus to enact them, either).

On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson 
ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote:
The reaction to Indiana strikes me as similar to Arizona. Arizona took place 
well before Hobby Lobby ruling. So the causal relationship you suggest here 
seems off.  Something else explains this.

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill

If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't be coming back to Indiana anytime 
soon.  Think about that -- a basketball boycott in Indiana!  How far we've come 
. . .

RFRA has gone from being benign, milquetoast legislation that garnered support 
across the political spectrum 20 years ago -- like Chevrolet and apple pie -- 
to becoming the political equivalent of a state adopting the confederate flag, 
or refusing to recognize MLK Day.  I doubt this would have happened if the 
Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony  Susan Alamo, 
etc., would have rejected the accommodation claim 9-0.

Of course, the market will ultimately undo the damage:  In order to preserve 
states' economic competitiveness, their RFRAs will either be repealed or 
construed to recreate the pre-Smith FEC regime.

The more interesting question is what Justice Alito's initiative augurs for the 
future of religious accommodations more broadly.

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Re: Amazing what Hobby Lobby has wrought

[Greg Lipper]

The Supreme Court hadn’t decided Hobby Lobby yet, but several federal appeals 
courts (including the 10th Circuit in the Hobby Lobby case) had already ruled 
in favor of corporations wanting to exclude contraceptive coverage from their 
insurance policies, and in the process adopting extremely broad understandings 
of federal RFRA. So there was certainly concern (well-founded, as it turns out) 
that the Supreme Court would rule in favor of Hobby Lobby and that it would do 
so in a manner that vastly changed what most people thought they were 
supporting in 1993.


Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church  State
(202) 466-3234 x210


On Mar 27, 2015, at 2:15 PM, Ryan T. Anderson 
ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote:

The reaction to Indiana strikes me as similar to Arizona. Arizona took place 
well before Hobby Lobby ruling. So the causal relationship you suggest here 
seems off.  Something else explains this.

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill

If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't be coming back to Indiana anytime 
soon.  Think about that -- a basketball boycott in Indiana!  How far we've come 
. . .

RFRA has gone from being benign, milquetoast legislation that garnered support 
across the political spectrum 20 years ago -- like Chevrolet and apple pie -- 
to becoming the political equivalent of a state adopting the confederate flag, 
or refusing to recognize MLK Day.  I doubt this would have happened if the 
Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony  Susan Alamo, 
etc., would have rejected the accommodation claim 9-0.

Of course, the market will ultimately undo the damage:  In order to preserve 
states' economic competitiveness, their RFRAs will either be repealed or 
construed to recreate the pre-Smith FEC regime.

The more interesting question is what Justice Alito's initiative augurs for the 
future of religious accommodations more broadly.

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Re: Simple Hobby Lobby question

[Greg Lipper]

The question isn’t only whether Hobby Lobby (and other for-profit corporations 
that sell secular goods/services) are persons, but rather whether they are 
persons that “exercise religion.” If they are not exercising religion, then 
RFRA is not triggered, no matter how much personhood they have.



On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote:

 Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby 
 (whether RFRA applies to corporations)? [T]he words “person” and “whoever” 
 include corporations, companies, associations, firms, partnerships, 
 societies, and joint stock companies, as well as individuals.
 
 Are the two sides really just arguing about whether [RFRA's] context 
 indicates otherwise  (1 USC 1) sufficiently to overcome this strong 
 definitional statement?
 
 If so, much as I'd personally like for Hobby Lobby to lose this case, I'd 
 think that the on this question at least, the plaintiffs have to win. After 
 all, we have a strong statutory definition, with at best equivocal contextual 
 evidence to the contrary.
 
 What am I missing? Are there cases dealing with the context language in 1 
 USC 1?
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Hobby Lobby strained efforts to avoid the parade of horribles

[Greg Lipper]

Michael McConnell has a post on Volokh Conspiracy addressing some of the issues 
that came up at the Hobby Lobby oral argument: 
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/27/prof-michael-mcconnell-stanford-on-the-hobby-lobby-arguments/

There’s a lot to discuss in his post, but I’d like to focus on his points about 
the parade of horribles – in particular, that we needn’t worry about Hobby 
Lobby creating precedent that deprives employees of other forms of healthcare 
that were discussed at oral argument and in the briefs.

There are, I suppose, specific arguments one could make about other forms of 
healthcare (Clement and McConnell both mentioned the herd-immunity 
justification for vaccines, for instance); and of course one can always argue 
more generally that each case will be evaluated on its own merits – but of 
course, the prior cases create precedent that is binding on the future cases 
and compels the same outcome in similar situations.

But let’s assume for a moment that Professor McConnell is right – that courts 
will figure out some way to distinguish contraception from other forms of 
healthcare – such as psychiatric care, blood transfusions, vaccines, and 
prescription drugs covered in pork-based gelatin – to which other employers’ 
owners might have religious objections. This type of reasoning really seems to 
reinforce the mistaken view that somehow contraception coverage (or healthcare 
related to women’s reproductive needs) is not “real” healthcare, and relatedly 
that sexuality-based objections of certain Christians to certain forms of 
healthcare are more important than other religious-based objections to 
healthcare that does not implicate issues of sexuality and gender. (Clement 
made a similar point at oral argument, attempting to distinguish contraception 
on the ground that it’s so religiously sensitive, so fraught with religious 
controversy.”)

If we are uncomfortable – as we all seem to be – with allowing a company to 
deprive employees of coverage for vaccinations, gelatin-covered pills, 
psychiatric care, or blood transfusions on the basis of its owner’s religious 
beliefs, then the proper outcome is to prevent companies from depriving their 
employees of *any* required insurance coverage – not to strain to reach a 
result that imposes unique burdens on care important to women and reproductive 
autonomy.


Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church  State
(202) 466-3234 x210

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Re: Hobby Lobby and Abortion

[Greg Lipper]

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

one of the principal benefits of the HHS Rule -- as the Guttmacher brief 
explains (see pp. 23-25) -- is that it will dramatically decrease the incidence 
of what everyone agrees are abortions (the result in 40% of unintended 
pregnancies). 

This is an empirical claim, yet for which there is no empirical evidence. That 
is, there is absolutely no empirical evidence showing that cost-free 
contraception dramatically reduces the rate of abortion. To the contrary, out 
of 11 randomized trials of the provision of emergency contraception (some of 
these trials occurred in developing countries where contraception is far less 
available compared to the U.S.), there was no evidence that even pregnancy 
rates were affected at all, let alone abortion rates.
http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1




From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Date: Fri, 14 Mar 2014 09:50:53 -0400
Subject: Re: Hobby Lobby and Abortion
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
CC: wdellin...@omm.commailto:wdellin...@omm.com

Thanks very much, Tom and Jim, for teeing up these issues.  A few points about 
the abortion angle, most of which I discussed in further detail back in 
December 
(http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html:

1.  Preventing implantation is not considered an abortion under the law, and in 
the mainstream medical and scientific communities.

2.  I emphatically agree, however (as I explained in my December post), that 
that does not matter for purposes of the RFRA claims in these cases since, 
whatever nomenclature one might use, a small number of persons and religions 
(including the plaintiffs here) think that preventing implantation ends a life, 
that deliberately doing so is immoral, and that some level or type of 
complicity with such immoral conduct is itself immoral.

3.  None of the 18 FDA-approved methods is designed to prevent implantation, 
and it's unclear that any of them actually does so.  Moreover, those that do 
(if any) may do so only very rarely.

4.  It is true that, according to the FDA, the four methods named in the HL 
complaint -- two IUDs, ella and Plan B -- may prevent implantation in a small 
number of cases.  But . . .

5.  So, too, might several other of the 18 methods, including, most 
significantly, the birth-control pill.  Thus, even on the plaintiffs' own 
theories, the HL and CW cases are not limited to four methods -- the exemption 
would be of unknown breadth.

6.  In the vast majority of cases in which their employees would be reimbursed 
for the purchase of contraception if the Court denies the HL and CW RFRA claims 
-- perhaps all of the cases (we just don't know) -- there would not be any 
prevention of implantation, and thus no ending of life on anyone's view, and 
thus no complicity issue.

7.  Assuming there are a small number of cases that result in implantation, 
that will virtually never be the object of the employees' use of the birth 
control, which obviously would be at least relevant to the moral calculus for 
many, even if not all, persons who think that implantation ends a life.

8.  Thus, even on the Greens' view of implantation and life, and their 
idiosyncratic view of complicity, excluding four or more FDA-approved methods 
from their plans will deny women their right to cost-free access in a huge 
number of cases (perhaps all of them) where there would not be any sin, let 
alone complicity . . . and would, at most, prevent the alleged complicity in a 
tiny handful of (unidentifiable) cases.  I am not here making any argument 
about how that fact should bear on the substantial burden analysis -- a 
complicated question that neither I or anyone else (to my knowledge) has yet 
written on.  But I do think that comparison, that ratio, fairly identifies the 
problem that the cases present.

9.  The Court is, in any event, unlikely to issue a ruling limited to possible 
implantation-prevention methods.  The scope of such a ruling would be unclear, 
for one thing, since (as mentioned above) we don't even know what subset of the 
FDA methods would be covered.  More importantly, such a ruling would do nothing 
to decide the vast majority of the cases that have been filed, which deal with 
contraception as such, and are not focused on possible implantation-prevention. 
 I doubt the Justices are inclined to issue such a narrow and ineffective 

Re: Hobby Lobby and Abortion

[Greg Lipper]

What kind of study would you want to see: one that withholds effective 
contraception from people for 10–20+ years and then checks to see how many 
people had unwanted pregnancies (and, in turn, how many had abortions)?

Making IUD affordable to more people will indeed cause more people to use IUD 
(Guttmacher and other briefs have good stats on that); and unless you think 
that low-income women have abortions for sport, reducing the rate of unwanted 
pregnancy will of course reduce the rate of abortion — especially among 
lower-income women.

If you are concerned that the society-wide take-up rate of IUDs won't be high 
enough, then the last thing you would want to do is deprive more women of 
access to IUD.

And let's not forget the other side of the ledger: there is little to no modern 
evidence that IUD (or emergency contraception) ever acts after fertilization, 
let alone that they regularly do so.

On Mar 17, 2014, at 12:09 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

There is no good empirical evidence that providing cost-free IUDs will 
dramatically reduce abortions either.

(There's the St. Louis study, but it is unreliable in several ways, most 
prominently including the lack of a control group and the almost-certain 
presence of selection bias, and even if that study were remotely valid, there 
is zero evidence that the society-wide take-up rate of IUDs would be high 
enough to dramatically affect the abortion rate).


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 15:11:43 +

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

one of the principal benefits of the HHS Rule -- as the Guttmacher brief 
explains (see pp. 23-25) -- is that it will dramatically decrease the incidence 
of what everyone agrees are abortions (the result in 40% of unintended 
pregnancies). 

This is an empirical claim, yet for which there is no empirical evidence. That 
is, there is absolutely no empirical evidence showing that cost-free 
contraception dramatically reduces the rate of abortion. To the contrary, out 
of 11 randomized trials of the provision of emergency contraception (some of 
these trials occurred in developing countries where contraception is far less 
available compared to the U.S.), there was no evidence that even pregnancy 
rates were affected at all, let alone abortion rates.
http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1




From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Date: Fri, 14 Mar 2014 09:50:53 -0400
Subject: Re: Hobby Lobby and Abortion
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
CC: wdellin...@omm.commailto:wdellin...@omm.com

Thanks very much, Tom and Jim, for teeing up these issues.  A few points about 
the abortion angle, most of which I discussed in further detail back in 
December 
(http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html:

1.  Preventing implantation is not considered an abortion under the law, and in 
the mainstream medical and scientific communities.

2.  I emphatically agree, however (as I explained in my December post), that 
that does not matter for purposes of the RFRA claims in these cases since, 
whatever nomenclature one might use, a small number of persons and religions 
(including the plaintiffs here) think that preventing implantation ends a life, 
that deliberately doing so is immoral, and that some level or type of 
complicity with such immoral conduct is itself immoral.

3.  None of the 18 FDA-approved methods is designed to prevent implantation, 
and it's unclear that any of them actually does so.  Moreover, those that do 
(if any) may do so only very rarely.

4.  It is true that, according to the FDA, the four methods named in the HL 
complaint -- two IUDs, ella and Plan B -- may prevent implantation in a small 
number of cases.  But . . .

5.  So, too, might several other of the 18 methods, including, most 
significantly, the birth-control pill.  Thus, even on the plaintiffs' own 
theories, the HL and CW cases are not limited to four methods -- the exemption 
would be of unknown breadth.

6.  In the vast majority of cases in which their employees would be reimbursed 
for the purchase of contraception if the Court denies the HL and CW RFRA claims 
-- perhaps all of the cases (we just don't know) -- there would not be any 

Re: Hobby Lobby and Abortion

[Greg Lipper]

A contraceptive method with an upfront cost of up to $1000 is by no means 
relatively cheap, especially for someone with a low income (that is, someone 
least able to afford an unplanned pregnancy/birth).

On Mar 17, 2014, at 3:40 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

Withholding effective contraception is a straw man; the only question here is 
whether making a widely available and relatively cheap consumer product free 
at the point of purchase will magically have a dramatic impact on the 
abortion rate. There is absolutely no reason to think that it would.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 16:38:27 +

What kind of study would you want to see: one that withholds effective 
contraception from people for 10–20+ years and then checks to see how many 
people had unwanted pregnancies (and, in turn, how many had abortions)?

Making IUD affordable to more people will indeed cause more people to use IUD 
(Guttmacher and other briefs have good stats on that); and unless you think 
that low-income women have abortions for sport, reducing the rate of unwanted 
pregnancy will of course reduce the rate of abortion — especially among 
lower-income women.

If you are concerned that the society-wide take-up rate of IUDs won't be high 
enough, then the last thing you would want to do is deprive more women of 
access to IUD.

And let's not forget the other side of the ledger: there is little to no modern 
evidence that IUD (or emergency contraception) ever acts after fertilization, 
let alone that they regularly do so.

On Mar 17, 2014, at 12:09 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

There is no good empirical evidence that providing cost-free IUDs will 
dramatically reduce abortions either.

(There's the St. Louis study, but it is unreliable in several ways, most 
prominently including the lack of a control group and the almost-certain 
presence of selection bias, and even if that study were remotely valid, there 
is zero evidence that the society-wide take-up rate of IUDs would be high 
enough to dramatically affect the abortion rate).


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 15:11:43 +

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

one of the principal benefits of the HHS Rule -- as the Guttmacher brief 
explains (see pp. 23-25) -- is that it will dramatically decrease the incidence 
of what everyone agrees are abortions (the result in 40% of unintended 
pregnancies). 

This is an empirical claim, yet for which there is no empirical evidence. That 
is, there is absolutely no empirical evidence showing that cost-free 
contraception dramatically reduces the rate of abortion. To the contrary, out 
of 11 randomized trials of the provision of emergency contraception (some of 
these trials occurred in developing countries where contraception is far less 
available compared to the U.S.), there was no evidence that even pregnancy 
rates were affected at all, let alone abortion rates.
http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1




From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Date: Fri, 14 Mar 2014 09:50:53 -0400
Subject: Re: Hobby Lobby and Abortion
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
CC: wdellin...@omm.commailto:wdellin...@omm.com

Thanks very much, Tom and Jim, for teeing up these issues.  A few points about 
the abortion angle, most of which I discussed in further detail back in 
December 
(http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html:

1.  Preventing implantation is not considered an abortion under the law, and in 
the mainstream medical and scientific communities.

2.  I emphatically agree, however (as I explained in my December post), that 
that does not matter for purposes of the RFRA claims in these cases since, 
whatever nomenclature one might use, a small number of persons and religions 
(including the plaintiffs here) think that preventing implantation ends a life, 
that deliberately doing so is immoral, and that some level or type of 
complicity with such immoral conduct is itself immoral.

3.  None of the 18 FDA-approved methods is designed to prevent 

Re: Hobby Lobby and Abortion

[Greg Lipper]

I don't know how you are quantifying dramatic, but 10 percent of women of 
child bearing age (that is, 10 percent of 62 million women) is a pretty big 
number. If even a small fraction of those women avoid the need for an abortion 
as a result, that is tens or hundreds of thousands of abortions prevented.

On Mar 17, 2014, at 4:20 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

But there's no evidence that more than, say, 10% or so of women would use IUDs 
even if they're free. So again, no evidence for dramatic impact on abortion.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 19:45:46 +

A contraceptive method with an upfront cost of up to $1000 is by no means 
relatively cheap, especially for someone with a low income (that is, someone 
least able to afford an unplanned pregnancy/birth).

On Mar 17, 2014, at 3:40 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

Withholding effective contraception is a straw man; the only question here is 
whether making a widely available and relatively cheap consumer product free 
at the point of purchase will magically have a dramatic impact on the 
abortion rate. There is absolutely no reason to think that it would.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 16:38:27 +

What kind of study would you want to see: one that withholds effective 
contraception from people for 10–20+ years and then checks to see how many 
people had unwanted pregnancies (and, in turn, how many had abortions)?

Making IUD affordable to more people will indeed cause more people to use IUD 
(Guttmacher and other briefs have good stats on that); and unless you think 
that low-income women have abortions for sport, reducing the rate of unwanted 
pregnancy will of course reduce the rate of abortion — especially among 
lower-income women.

If you are concerned that the society-wide take-up rate of IUDs won't be high 
enough, then the last thing you would want to do is deprive more women of 
access to IUD.

And let's not forget the other side of the ledger: there is little to no modern 
evidence that IUD (or emergency contraception) ever acts after fertilization, 
let alone that they regularly do so.

On Mar 17, 2014, at 12:09 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

There is no good empirical evidence that providing cost-free IUDs will 
dramatically reduce abortions either.

(There's the St. Louis study, but it is unreliable in several ways, most 
prominently including the lack of a control group and the almost-certain 
presence of selection bias, and even if that study were remotely valid, there 
is zero evidence that the society-wide take-up rate of IUDs would be high 
enough to dramatically affect the abortion rate).


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 15:11:43 +

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

one of the principal benefits of the HHS Rule -- as the Guttmacher brief 
explains (see pp. 23-25) -- is that it will dramatically decrease the incidence 
of what everyone agrees are abortions (the result in 40% of unintended 
pregnancies). 

This is an empirical claim, yet for which there is no empirical evidence. That 
is, there is absolutely no empirical evidence showing that cost-free 
contraception dramatically reduces the rate of abortion. To the contrary, out 
of 11 randomized trials of the provision of emergency contraception (some of 
these trials occurred in developing countries where contraception is far less 
available compared to the U.S.), there was no evidence that even pregnancy 
rates were affected at all, let alone abortion rates.
http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1




From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Date: Fri, 14 Mar 2014 09:50:53 -0400
Subject: Re: Hobby Lobby and Abortion
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
CC: wdellin...@omm.commailto:wdellin...@omm.com

Thanks very much, Tom and Jim, for teeing up these issues.  A few points about 
the abortion angle, most of 

Re: Hobby Lobby and Abortion

[Greg Lipper]

So we should not try to reduce unplanned pregnancies based on logical 
understanding of human psychology, economics, and biology — and based on solid 
empirical data about IUD effectiveness and patient behavior in response to its 
cost — even when a randomized study would be impractical and probably unethical?

That is a remarkably rigid view, and as a practical matter it would prevent the 
government from ever making policy in the face of any religious objections.

On Mar 17, 2014, at 5:18 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

I'm looking for actual evidence, not speculation that is uninformed by any data 
on 1) what the actual takeup rate might be compared to the takeup rate right 
now, 2) what the relative improvement would be in the rate of pregnancy 
prevention, and 3) how many of the allegedly prevented pregnancies might have 
ended in abortion (given the particulars of the people who are incentivized on 
the margin to install IUDs by the new policy). These questions cannot be 
satisfactorily answered without a randomized experiment.



From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 20:31:32 +

I don't know how you are quantifying dramatic, but 10 percent of women of 
child bearing age (that is, 10 percent of 62 million women) is a pretty big 
number. If even a small fraction of those women avoid the need for an abortion 
as a result, that is tens or hundreds of thousands of abortions prevented.

On Mar 17, 2014, at 4:20 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

But there's no evidence that more than, say, 10% or so of women would use IUDs 
even if they're free. So again, no evidence for dramatic impact on abortion.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 19:45:46 +

A contraceptive method with an upfront cost of up to $1000 is by no means 
relatively cheap, especially for someone with a low income (that is, someone 
least able to afford an unplanned pregnancy/birth).

On Mar 17, 2014, at 3:40 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

Withholding effective contraception is a straw man; the only question here is 
whether making a widely available and relatively cheap consumer product free 
at the point of purchase will magically have a dramatic impact on the 
abortion rate. There is absolutely no reason to think that it would.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 16:38:27 +

What kind of study would you want to see: one that withholds effective 
contraception from people for 10–20+ years and then checks to see how many 
people had unwanted pregnancies (and, in turn, how many had abortions)?

Making IUD affordable to more people will indeed cause more people to use IUD 
(Guttmacher and other briefs have good stats on that); and unless you think 
that low-income women have abortions for sport, reducing the rate of unwanted 
pregnancy will of course reduce the rate of abortion — especially among 
lower-income women.

If you are concerned that the society-wide take-up rate of IUDs won't be high 
enough, then the last thing you would want to do is deprive more women of 
access to IUD.

And let's not forget the other side of the ledger: there is little to no modern 
evidence that IUD (or emergency contraception) ever acts after fertilization, 
let alone that they regularly do so.

On Mar 17, 2014, at 12:09 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

There is no good empirical evidence that providing cost-free IUDs will 
dramatically reduce abortions either.

(There's the St. Louis study, but it is unreliable in several ways, most 
prominently including the lack of a control group and the almost-certain 
presence of selection bias, and even if that study were remotely valid, there 
is zero evidence that the society-wide take-up rate of IUDs would be high 
enough to dramatically affect the abortion rate).


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 15:11:43 +

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 

Re: Hobby Lobby and Abortion

[Greg Lipper]

I should add that the rigidity of this position is especially remarkable in 
light of the absence of any demonstrable evidence that any IUD has ever itself 
acted on even a single fertilized egg, let alone a significant number…

On Mar 17, 2014, at 5:18 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

I'm looking for actual evidence, not speculation that is uninformed by any data 
on 1) what the actual takeup rate might be compared to the takeup rate right 
now, 2) what the relative improvement would be in the rate of pregnancy 
prevention, and 3) how many of the allegedly prevented pregnancies might have 
ended in abortion (given the particulars of the people who are incentivized on 
the margin to install IUDs by the new policy). These questions cannot be 
satisfactorily answered without a randomized experiment.



From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 20:31:32 +

I don't know how you are quantifying dramatic, but 10 percent of women of 
child bearing age (that is, 10 percent of 62 million women) is a pretty big 
number. If even a small fraction of those women avoid the need for an abortion 
as a result, that is tens or hundreds of thousands of abortions prevented.

On Mar 17, 2014, at 4:20 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

But there's no evidence that more than, say, 10% or so of women would use IUDs 
even if they're free. So again, no evidence for dramatic impact on abortion.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 19:45:46 +

A contraceptive method with an upfront cost of up to $1000 is by no means 
relatively cheap, especially for someone with a low income (that is, someone 
least able to afford an unplanned pregnancy/birth).

On Mar 17, 2014, at 3:40 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

Withholding effective contraception is a straw man; the only question here is 
whether making a widely available and relatively cheap consumer product free 
at the point of purchase will magically have a dramatic impact on the 
abortion rate. There is absolutely no reason to think that it would.


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 16:38:27 +

What kind of study would you want to see: one that withholds effective 
contraception from people for 10–20+ years and then checks to see how many 
people had unwanted pregnancies (and, in turn, how many had abortions)?

Making IUD affordable to more people will indeed cause more people to use IUD 
(Guttmacher and other briefs have good stats on that); and unless you think 
that low-income women have abortions for sport, reducing the rate of unwanted 
pregnancy will of course reduce the rate of abortion — especially among 
lower-income women.

If you are concerned that the society-wide take-up rate of IUDs won't be high 
enough, then the last thing you would want to do is deprive more women of 
access to IUD.

And let's not forget the other side of the ledger: there is little to no modern 
evidence that IUD (or emergency contraception) ever acts after fertilization, 
let alone that they regularly do so.

On Mar 17, 2014, at 12:09 PM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

There is no good empirical evidence that providing cost-free IUDs will 
dramatically reduce abortions either.

(There's the St. Louis study, but it is unreliable in several ways, most 
prominently including the lack of a control group and the almost-certain 
presence of selection bias, and even if that study were remotely valid, there 
is zero evidence that the society-wide take-up rate of IUDs would be high 
enough to dramatically affect the abortion rate).


From: lip...@au.orgmailto:lip...@au.org
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Hobby Lobby and Abortion
Date: Mon, 17 Mar 2014 15:11:43 +

You appear to be comparing apples to oranges. The Guttmacher brief isn’t 
referring only to emergency contraception; in particular, it’s pointing to the 
benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to 
cover. (IUD is both more effective and more expensive than virtually all over 
forms of contraception.)




On Mar 17, 2014, at 10:49 AM, Stuart Buck 
stuartb...@msn.commailto:stuartb...@msn.com wrote:

one of the principal benefits of the HHS Rule -- as the Guttmacher brief 
explains (see pp. 23-25) -- is that it will dramatically decrease the incidence 
of what everyone agrees are abortions (the result in 40% of unintended 

Re: letter opposing Mississippi RFRA

[Greg Lipper]

Yes, indeed. And whatever “substantial burden” means, it most certainly does 
not mean – and could not be applied by courts, with a straight face, to mean – 
burdens with respect to “long held and clearly stated teaching of two of the 
largest religious groups in the country.”




On Mar 11, 2014, at 1:42 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way 
back when, we thought they were worth fighting for because of all manner of 
cases that did not involve the commercial sector -- including, for example, 
Doug's prisoner case that the Court just granted.  Doug is right that no one, 
back then, thought commercial sector cases could prevail -- because they have 
virtually never received so much as a vote in the Supreme Court.

But that was then; this is now.  If Hobby Lobby prevails, and if these state 
laws are enacted against the backdrop of such a Supreme Court decision and a 
manifest legislative and popular intent to promote exemptions in the commercial 
sphere, well . . . that's a different landscape entirely, isn't it?


On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:
I'm not sure I understand. If such RFRAs are so ineffectual then why are some 
people pushing so hard for them? If they aren't worth fighting against, why are 
they worth fighting for?


On Tuesday, March 11, 2014, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
There is of course nothing in the actual experience of state RFRAs to support 
any of the speculative fears in the letter. Litigation has been scarce; 
decisions favoring religious claimants have been scarcer. RFRAs have been 
significantly under enforced compared to the aspirations of their drafters.

The recent string of wins under federal RFRA in the contraception cases arise 
in a context where government attempted to override long held and clearly 
stated teaching of two of the largest religious groups in the country (Roman 
Catholics and evangelical Protestants). Even if those wins hold up in the 
Supreme Court, which is far from assured, there is little reason to think they 
would be replicated in other contexts.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546tel:434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 11, 2014 12:21 PM
To: Law  Religion issues for Law Academics
Subject: letter opposing Mississippi RFRA

A group of ten legal academics, including myself and a number of others who 
post on this list, have prepared a letter urging the legislative defeat of a 
proposed Religious Freedom Restoration Act in Mississippi.  The letter has 
recently been delivered and made publicly available.  It can be found here:  
http://www.thirdway.org/publications/795

--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053tel:%28202%29994-7053
Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452tel:%28678%29%20641-7452
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


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Re: The pain of discrimination and the role of government

[Greg Lipper]

I agree with Paul’s comments about most of Greg S's hypotheticals. And to put a 
finer point on my post from yesterday – my bakery would be required to serve 
the evangelicals even if they were going to serve my baked goods at a church 
service featuring worship at odds with my own religious beliefs. 

And that is good for religious freedom: just as race-discrimination laws also 
prohibit me from refusing to sell a cake to be served at a mixed-race wedding, 
religious-discrimination laws prohibit me from refusing to sell a cake to be 
served at a religious ceremony that I oppose (indeed, even if certain views 
expressed at that religious ceremony are becoming increasingly disfavored in 
society at large). 

Greg

Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church  State
(202) 466-3234 x210


On Feb 28, 2014, at 10:35 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote:

 But of course!  I quite agree that's how it should be.  I too believe that 
 our two Christian evangelists should be able to walk into Greg Lipper's 
 hypothetical bakery and be served.
 
 If that were all that is on the table for legal regulation, then we all could 
 breath a sigh of relief and quickly come to an amicable agreement on the 
 lion's share of the matter.  I might quibble that an expansion of 
 anti-discrimination laws to accomplish this simple purpose is a solution in 
 search of a problem, given that there are no reports in the media of an 
 epidemic of bakeries or grocery stores or other merchants that are refusing 
 to take money from people until after checking their sexual orientation or 
 religious or other identification card.  In addition, we might still have a 
 much lower stakes debate about whether even the principle of basic affording 
 of basic merchant goods to everyone should admit to a rare exception where 
 the harm is minimal and the idiosyncratic religious claim is severe.  But, 
 again, I'd acknowledge that we’d be at least 99 percent of the way there if 
 this were all we are talking about.
 
 Unfortunately, unless I've misread the many posts over the last couple of 
 weeks, this does not appear to be all that is demanded by advocates of a 
 broader anti-discrimination regime that admits of no religious liberty 
 exceptions.
 
 Suppose that our two Christian evangelists walk into Greg Lipper’s 
 hypothetical bakery and the baker says, “you’re welcome to come in and buy 
 baked goods, but I won’t allow any Christian leafleting or prosyletizing of 
 my customers.”  I imagine that nearly all of us would agree that the baker 
 would be well within his rights to refuse to allow his bakery to be a venue 
 to promote the evangelist's message.  Would everyone still agree if the baker 
 applies this no-leafletting policy in a “discriminatory” way?  Suppose that 
 the baker does not permit the Christian evangelists to hand out flyers, but 
 then he circulates for customer signatures his own petition asking Governor 
 Brewer to veto the Religious Freedom Restoration Act amendments?  I would 
 hope that most of us would stand by the baker here,.  But such a freedom for 
 the baker to so discriminate is hard to reconcile with some comments on 
 this list suggesting a more absolute value for anti-discrimination.
 
 Or suppose that our intrepid Christian evangelists, exhausted after a Friday 
 afternoon of preaching and receiving regular epithets from a hostile street 
 audience, arrive at our baker’s door, hungry and thirsty, only to find the 
 baker putting out the closed sign, as he explains, “I’m Jewish, so I’m 
 closing on Friday evening as the Sabbath is beginning.”  Should our Christian 
 evangelists be heard to make a legal claim that the baker is discriminating 
 against non-Jews by denying them service on a Friday evening -- and on 
 explicitly religious grounds no less?  Again, I hope list members would not 
 reach that conclusion.  But then I've been reading posted messages saying 
 that merchants of differing religious views should be required to adjust to 
 the demands of the majority.
 
 In sum, my prior points about the over- and mis-use of discrimination to 
 characterize choices, as well as the danger of allowing government to 
 pressure people into proper and decent behavior, do not disappear when we 
 reach the door to a business.
 
 Greg Sisk
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 on behalf of Greg Lipper [lip...@au.org]
 Sent: Friday, February 28, 2014 7:25 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: The pain of discrimination and the role of government
 
 But if those evangelicals walked into the corner bakery afterwards, the law 
 would require that they be served – even if the owner hated their religious 
 beliefs. And that’s how it should be, I think.
 
 
 On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. 
 gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:
 
 Over

Re: The pain of discrimination and the role of government

[Greg Lipper]

But if those evangelicals walked into the corner bakery afterwards, the law 
would require that they be served – even if the owner hated their religious 
beliefs. And that’s how it should be, I think.


On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Over the past day, I’ve withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today’s other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to “[epithet 
deleted] off.”  No one physically accosted the two, and the comments did not 
provoke any violence, so I don’t think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying “God bless you” or 
“Jesus loves you” to each person.  But it was plain that the hostile treatment 
left its psychological mark.  The young woman, who I am guessing was the 
veteran at street ministry, seemed less impacted.  But the young man was 
shaken, as I could tell from his mannerisms, what looked to be tears in his 
eyes, and the quaver that appeared in his voice after he received a 
particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly 
“discrimination.”  And it was blatant and invidious discrimination.  The 
remarks were not merely negative and disrespectful, but many were hateful and 
cruel.  And the basis for the discrimination plainly was their religious 
identity and message.  In the words of more than one poster to this list over 
the past day, these two were suffering an injury to their dignity, the pain of 
rejection, and the shame of stigma based on their identity.

Despite the undeniable fact that these two were the victims of discriminatory 
treatment and that they plainly felt the sting of that discrimination, I am 
guessing that all or most on this list will agree with me that it would be 
inappropriate to use the power of government to prevent such unfortunate 
behavior in the future or to pass a law that would compel those who pass by to 
treat evangelists with respect.  And I think that choice to refrain from use of 
government and law is correct for at least two reasons.

First, a legally binding directive to treat evangelists – or for that matter 
others who present a message – with respect, or instead a government regulation 
that induces such respect at the cost of some type of sanction or withheld 
benefit, would be difficult to separate from an improper government endorsement 
of the message at issue.  At the very least, legal action would put the heavy 
thumb of the government on the side of refraining from expressing opposition or 
indifference to a value-laden message.

But, second, it simply is not the proper role of government to enforce 
standards of courtesy or to wield legal power (as contrasted with appropriate 
exercise of persuasion) to shape human interactions.  I definitely assert a 
moral right to be treated with dignity, but I do not have a legal right in a 
free society to demand that other private citizens extend such courtesy to me 
or even refrain from being discourteous.  (By statute, of course, I do have the 
right to object to even private discrimination on certain grounds when it 
denies me the necessary tools for educational and economic opportunity.  That’s 
something on which I’ll comment more later – but this post is already too long. 
 My specific point here is that the real pain of discrimination alone, 
unaccompanied by something concrete like an economic deprivation, is like other 
failures in human behavior that are not properly the subject of government and 
where the imprudent use of law often transgresses the fundamental rights of 
some while attempting to address the grievances 

Re: bigotry and sincere religious belief

[Greg Lipper]

I would also add that Greg Sisk’s syllogism only works if (1) you are also 
willing to allow photographers, florists, caterers, bakers, etc. to refuse to 
work at mixed-race weddings, or (2) you conclude that refusal to participate in 
same-sex wedding ceremonies is somehow more worthy of protection than refusal 
to participate in mixed-race weddings.

As to the former, we as a society (or so I had thought) have concluded that we 
are unwilling to tolerate that type of discrimination, whatever its motivation.

As to the latter, I still haven’t seen a principled basis for saying that 
sexual-orientation-based discrimination is somehow more benign than race-based 
discrimination (be it in the context of marriage, marriage ceremonies, or 
otherwise). Perhaps this debate is hopelessly circular: lots of people – 
including lots of smart people – still oppose same-sex marriage, and smart 
people who oppose same-sex marriage will naturally come up with ways to treat 
their opposition to same-sex marriage as less problematic than other types of 
discrimination that have been more widely discredited. But that doesn’t change 
what otherwise appears to be purely invidious discrimination.


On Feb 27, 2014, at 8:40 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:

Greg Sisk's post re: how to think about the wedding photographer is just the 
compelled speech argument one more time.  In the case of a photographer, a 
First A claim of compelled speech is plausible, though not entirely persuasive. 
 In the case of a baker, florist, wine vendor, or caterer, the argument that 
their providing service to a same sex wedding involves compelling them to speak 
about the moral/religious bona fides of the ceremony is not even plausible.

But there is a deeper issue lurking in Greg's post.  If the photographer has a 
good compelled speech claim, it is entirely independent of religion.  She can 
have any reason, or no reason at all, to refuse to speak.  She can have 
religious objections, homophobic reactions, or aesthetic concerns about taking 
pictures of two brides or two grooms.  Her reasons are totally irrelevant.  
This is the precise lesson of Minersville v. Gobitis (no free exercise 
exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. 
Barnette (no one can be compelled to salute the American flag).  And if reasons 
are irrelevant, because this is a compelled speech problem, then it extends to 
all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc.  
The photographer cannot be conscripted by civil rights laws into taking and 
displaying photos against her will.  Maybe this is a good result; I have my 
doubts.  But it is NOT a religious exemption, and it does NOT require any 
parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under 
Greg's approach, the problem raised by RFRA's, re: separating religious 
sincerity from phobic bigotry, remains entirely unresolved.


On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:
Although Steve’s post could be dismissed as filled with overstatements, unfair 
characterizations, demonization of dissenting voices, and setting up strawmen 
to easily knock down, let me take his points at face value and use them as a 
starting point for a conversation that might lower the tension and find some 
common ground.  Much of the back-and-forth accusations that fly past each other 
without true engagement may be traced to (1) the over-use or the mis-use of the 
term “discriminate” and (2) at least the appearance of overreaching in 
requesting accommodation.  The central point of dispute here really comes down 
to situations that involve a personal decision not to be forced to participate 
in a celebration or an affirmance of something with which one does not agree.  
Yes, other situations may arise and deserve consideration on their own merits.  
But let’s set those to one side for now.  If we were to narrow the battlefield 
down to the point of coerced personal participation and identification with a 
position or message and preserving freedom of association in a narrow category, 
perhaps we might find a place where the heat could be lowered, where the 
accusation of discrimination is strained, and accommodations less grudgingly 
accepted.

Steve states that “general societal laws . . . would require [religious 
believers] to ignore the sexual orientation of students, employees, customers, 
etc.”  Now that is not an accurate description of new anti-discrimination laws, 
which go much further in effect.  But suppose that his description were 
correct.  Indeed, perhaps it should be correct and anti-discrimination laws 
should be recalibrated to fit Steve’s description.  If we did so, we might be 
able to establish a common ground in which anti-discrimination laws would be 
harder to challenge on religious grounds and easier to defend as not imposing a 
governmental orthodoxy 

Re: Statistics on believers and same-sex marriage

[Greg Lipper]

Replace “same-sex marriage” with “interracial marriage” and I can’t imagine 
you’d be making the same arguments – or suggest that business-owning opponents 
of interracial marriage were being “suffocated by an orthodox majority that is 
impatient or disdainful of accommodation.”



On Feb 26, 2014, at 3:24 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Don’t the statistics that Marci cites make the argument for robust religious 
freedom protection more rather than less compelling for those now or future 
religious minorities who do not wish to be forced to participate in or 
contribute business services to same-sex marriage ceremonies?  Haven’t we 
transgressed rather far on to both freedom of religion and freedom of speech if 
the majority’s anti-discrimination laws can be used to require a person in the 
minority, at the price of losing a business license and surrendering her 
livelihood, to participate in a ceremony that offends his or her religious 
views?  The events photographer acts not a journalist but a member of the team 
and thus must participate in a ceremony, whether it be a wedding, military 
banquet, or religious occasion.  The baker who is asked not merely to sell a 
generic cake but to create a message by designing a special cake is necessarily 
becoming a part of the program and being asked to communicate a message.  The 
proprietor of a bed-and-breakfast who is asked to dedicate a portion of her 
property to host a ceremony or program of any kind, whether a same-sex marriage 
or a religious ordination ceremony or a bachelor party, is being asked to join 
in the celebration and cannot holds it at arm’s length.

Those whose religious views comfortably track the majority opinions on matters 
need not fear oppression, either intentionally or inadvertently.  It was not 
surprising, for example, in my empirical studies of religious liberty cases 
that Episcopalians bring fewer claims for accommodation than Muslims.  The 
primary purpose of religious liberty is to protect the religious minority from 
being intentionally suppressed by a hostile majority or inadvertently 
suffocated by an orthodox majority that is impatient or disdainful of 
accommodation and leaves no meaningful room for alternative views or 
lifestyles.   We should expect better of a society that calls itself free or 
that claims to genuinely value diversity.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Wednesday, February 26, 2014 1:52 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Statistics on believers and same-sex marriage

I thought list participants would find the statistics below interesting.  This 
is what I meant when I said that opposition to same-sex marriage among believers
is declining.  It is even more stark when one asks only the younger generation.


http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?ncid=tweetlnkushpmg0055
.

~WRD000.jpg
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Re: Statistics on believers and same-sex marriage

[Greg Lipper]

I appreciate your consistency – and your acknowledgement that the logic 
underlying the Arizona legislation would enable a return to racial 
discrimination and segregation (at least when motivated by religious beliefs).


On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I’ve consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage

Replace “same-sex marriage” with “interracial marriage” and I can’t imagine 
you’d be making the same arguments – or suggest that business-owning opponents 
of interracial marriage were being “suffocated by an orthodox majority that is 
impatient or disdainful of accommodation.”



On Feb 26, 2014, at 3:24 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:


Don’t the statistics that Marci cites make the argument for robust religious 
freedom protection more rather than less compelling for those now or future 
religious minorities who do not wish to be forced to participate in or 
contribute business services to same-sex marriage ceremonies?  Haven’t we 
transgressed rather far on to both freedom of religion and freedom of speech if 
the majority’s anti-discrimination laws can be used to require a person in the 
minority, at the price of losing a business license and surrendering her 
livelihood, to participate in a ceremony that offends his or her religious 
views?  The events photographer acts not a journalist but a member of the team 
and thus must participate in a ceremony, whether it be a wedding, military 
banquet, or religious occasion.  The baker who is asked not merely to sell a 
generic cake but to create a message by designing a special cake is necessarily 
becoming a part of the program and being asked to communicate a message.  The 
proprietor of a bed-and-breakfast who is asked to dedicate a portion of her 
property to host a ceremony or program of any kind, whether a same-sex marriage 
or a religious ordination ceremony or a bachelor party, is being asked to join 
in the celebration and cannot holds it at arm’s length.

Those whose religious views comfortably track the majority opinions on matters 
need not fear oppression, either intentionally or inadvertently.  It was not 
surprising, for example, in my empirical studies of religious liberty cases 
that Episcopalians bring fewer claims for accommodation than Muslims.  The 
primary purpose of religious liberty is to protect the religious minority from 
being intentionally suppressed by a hostile majority or inadvertently 
suffocated by an orthodox majority that is impatient or disdainful of 
accommodation and leaves no meaningful room for alternative views or 
lifestyles.   We should expect better of a society that calls itself free or 
that claims to genuinely value diversity.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto

Re: Statistics on believers and same-sex marriage

[Greg Lipper]

I’m glad that you agree that avoiding racial segregation is a compelling 
interest (although that concession seems inconsistent with your prior post, in 
which you claim that we as a society can’t really know much of anything). But I 
still haven’t seen any good explanation for why discrimination on the basis of 
sexual orientation (or objection to same-sex ceremonies) is materially less 
harmful than discrimination on the basis of race (or objection to interracial 
ceremonies). There are more religious objections to the latter than to the 
former – but there used to be a great many religious objections to even the 
former.

At the end of the day, an argument that same-sex discrimination is “better” 
than race discrimination can’t just be asserted, and it can’t be bootstrapped 
on the basis of vocal religious objections to the same-sex relationships or 
ceremonies.



On Feb 26, 2014, at 4:17 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

No such logic exists.  Your inference omits my express reference to the 
requirement of a substantial burden and the omission of a compelling public 
interest.  A return to racial segregation and inability to receive services on 
the basis of race would easily qualify as a compelling public interest.  The 
narrow question presented in these cases is whether a religious minority may 
decline to participate in a ceremonial message with which they disagree, 
especially when alternative venues and services are readily available and thus 
no actual burden is imposed on anyone.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:55 PM
To: Law  Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage

I appreciate your consistency – and your acknowledgement that the logic 
underlying the Arizona legislation would enable a return to racial 
discrimination and segregation (at least when motivated by religious beliefs).


On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:


Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I’ve consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

___
To post, send message to 
Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: recommended Hobby Lobby posts

[Greg Lipper]

I agree with Chip about the political realities of a public option. Even if 
that option were politically viable, I don’t see how the public option can be 
considered a less restrictive alternative in cases dealing with exemptions from 
regulations.

Employers have previously brought free exercise challenges to things like 
federal minimum wage laws and equal pay laws. Those challenges have been 
rejected. But if an employer has a religious objection to paying the minimum 
wage, the government could step in and pay a salary supplement. If an employer 
has a religious objection to paying women as much as men, the government could 
step in and make up the difference directly. United States v. Lee would have 
also come out differently – the government could have chipped in the missing 
social security payments there, too.

And so on and so on: virtually every regulation governing health, safety, wage, 
working conditions – any regulation that requires a private party to do 
something – could be rewritten so that the government performs the action 
itself. If the “public option” is considered to be a less restrictive 
alternative, then we’re in a world of state-run everything.


On Feb 20, 2014, at 7:01 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

Two quick points before I have to prepare for class:

We are on a slippery slope when we refer to someone as seeking to have “the 
government[] … authorize [it] to act on religious beliefs in ways that harm 
others,” when what is at stake is whether the government can force that person 
to do something for others in violation of religious conscience. This comes 
very close to saying that the government authorizes whatever it does not 
prohibit.

Political considerations should play no role when we ask whether the government 
has another way to advance its interests. Regardless of whether the people or 
their representatives would choose to use that other way, it must be treated as 
available for purposes of constitutional analysis. The choice not to use it may 
show that the government is not terribly committed to advancing the particular 
interest that is at stake, but in any event a refusal of the government (a 
government by the people, right?) to utilize a means of furthering its 
interests is not a reason for limiting the freedoms of those who do not want to 
be used to advance that interest. The costs of using the alternative may be 
relevant, but the refusal of the people to authorize its use is not.

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 Ira Lupu
Sent: Thursday, February 20, 2014 3:44 PM
To: Law  Religion issues for Law Academics
Subject: Re: recommended Hobby Lobby posts

Very good questions, Alan. Three replies (in reverse order of your questions):

1.  Other rights contexts (like free speech) where third party costs are 
present -- Religion is different.  The Establishment Clause is a limit on the 
government's power to authorize one party to act on religious beliefs in ways 
that harm others.   Government vigorously protects labor speech in the 
workplace, even though it may lead workers to unionize and cost employers money 
(way more than de minimis in some cases).   But Thornton v. Caldor explicitly, 
and the Title VII line of cases about religious accommodation (in these, 
implicitly) impose limits on the power of A to shift costs to B to protect A's 
religious commitments.

2.  Less restrictive means (and the power of government to provide 
contraceptive services directly to employees of firms that refuse to insure for 
coverage of those services).  If Hobby Lobby wins, its female employees, and 
the female dependents of all employees, will lose the controverted coverage.  
For some of them, that will mean they cannot afford the safest and most 
effective contraception (perhaps a hormonal IUD, close to $1000 initial 
outlay).  That the government can/might/should fill the gap for these employees 
cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the 
government may very well NOT fill the gap. Imagine the politics of the 
gap-filling legislation -- a public option, government financed, for 
contraceptives that some people believe are abortifacients.  Likely to be 
enacted sometime soon?  And if government does not fill that gap, then these 
women and others similarly situated take the full brunt of the loss.   They 
will not have the coverage that, within a few years, almost every woman in the 
U.S. will have. That consequence presents a serious Establishment Clause 
problem, and RFRA should be construed to avoid it.

3.  Why de minimis?  Why not allow even more than de minimis cost-shifting when 
the burden on the objecting company or its owners is substantial?  As we know 
from Caldor, Cutter, Texas 

Re: Notre Dame-- where's the complicit participation? Sincerity

[Greg Lipper]

Notre Dame's lawyer mentioned these remarks briefly during last week's oral 
argument, but it was not entirely clear to me whether he (the lawyer) was 
citing them for (1) the general point that Notre Dame has an obligation to 
adhere to Catholic doctrine, or (2) the more specific point that Notre Dame 
must resist the contraception accommodation.

On Feb 16, 2014, at 7:22 PM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:

Does anyone know whether the trustees of Notre Dame perhaps interpreted Pope 
Benedict's remarks in his meeting with them in Rome on Jan. 31 as being a 
reference to Notre Dame's position on the contraceptive mandate.  The Pope said:

This commitment to “missionary discipleship” ought to be reflected in a 
special way in Catholic universities (cf. Evangelii Gaudium, 132-134), which by 
their very nature are committed to demonstrating the harmony of faith and 
reason and the relevance of the Christian message for a full and authentically 
human life. Essential in this regard is the uncompromising witness of Catholic 
universities to the Church’s moral teaching, and the defense of her freedom, 
precisely in and through her institutions, to uphold that teaching as 
authoritatively proclaimed by the magisterium of her pastors. It is my hope 
that the University of Notre Dame will continue to offer unambiguous testimony 
to this aspect of its foundational Catholic identity, especially in the face of 
efforts, from whatever quarter, to dilute that indispensable witness.

Full text of the Pope's remarks are at 
http://www.news.va/en/news/vatican-the-pope-to-the-university-of-notre-dame

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] 
on behalf of Penalver, Eduardo 
[penal...@uchicago.edumailto:penal...@uchicago.edu]
Sent: Sunday, February 16, 2014 6:48 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

There is a huge difference between the Church's teaching on contraception 
(which is clear), and its views on the permissibility of participating in an 
insurance scheme that covers contraception for employees who would likely 
already purchase it using their paychecks, let alone the permissibility of 
signing a form the consequence of which is that some contractual third party 
provides contraceptive coverage to said employees.  The sincerity of the 
recently asserted views on these later two questions is far from clear to my 
mind.  Again, though, the degree to which a court should probe this issue 
strikes me as a different and difficult question.  But it seems important to 
acknowledge the novelty of the position some Catholic institutions have adopted 
in this litigation.

On Feb 16, 2014, at 3:43 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I appreciate Marci's support on my other point, but I'm afraid I don't agree 
that the views of American Catholics writ large is especially relevant.  It's 
no secret that most Catholics, including ND students and faculty, disagree with 
ND's view, and with the Church's, on the morality of contraception and 
premarital sex.  That's why this is a losing battle for ND in the long run.  
But I think there can be little doubt but that, as an institution, Notre Dame 
believes (and at least nominally instructs its students) that such things are 
indeed sinful.


On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Feb 16, 2014, at 3:45 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be 

Re: Notre Dame-- where's the complicit participation? Sincerity

[Greg Lipper]

Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to 
the enactment of the women’s health provisions in the first place. Let me try 
to address a few of the most important points:

1. The distinction between “medically-indicated” (non-contraceptive) uses of 
contraception and “non-medical” uses of contraception is spurious. Put aside 
for a moment the importance of allowing women to control their own bodies, stay 
in school, rise in the workplace, etc. Contraception qua contraception is still 
critical for women’s health (planned pregnancies lead to better prenatal care, 
and some women have health conditions that make pregnancy dangerous) and for 
the health of the children (planned pregnancies lead to better prenatal care, 
and properly spaced pregnancies are better for the children).

2. Even if the medical/non-medical distinction were real, imagine having to go 
to your HR department for permission to receive coverage for 
“medically-indicated” uses of contraception. It’s a trifle infantalizing.

3. There is also no such thing as “ordinary contraception” (which Professor 
Sisk posits can be purchased for $10 a month, leaving medical coverage 
unnecessary). I’m assuming that Professor Sisk uses that term to refer to the 
birth-control pill. Other forms of contraception (such as IUD) are far more 
effective and also much more expensive; their high upfront cost leads many 
women to choose cheaper and less effective methods. Even if IUD were somehow 
considered an aspirational luxury, oral contraception isn’t appropriate for 
some women, for instance due to side effects. So we can’t just send women to 
CVS sans insurance.

4. Even if oral contraception were the only game in town, $120 a year is 
nothing to sneeze at, especially for low-wage workers – the very people who 
already face significant financial barriers to obtaining contraception.

5. Many of the same people who have opposed the contraception-coverage 
regulations most strenuously would be among the loudest voices opposing a 
government program to fund/subsidize contraception for women whose employers 
refused to include it in their health policies. The ACA, which attempted to 
keep employer-based coverage largely in place, has already been derided as 
“socialized medicine.” Even if a separate program were politically viable, 
forcing women with objecting-employers to sign up for a separate, 
government-run program of contraception coverage is a needless extra burden, is 
stigmatizing, and makes insurance coverage less seamless for those women.

6. Let’s put aside for a moment that the “abortifacient” label is almost 
entirely contradicted by modern science (even if you accept that interference 
with implantation constitutes an abortion). Since opponents of the 
contraception regs regularly describe the regs as the “abortion pill mandate,” 
are those opponents – the very organizations representing most of the 
plaintiffs in these cases – going to turn around and support a government 
program that uses taxpayer dollars to provide women with “abortion pills”? 
Don’t bet on it.

Implicit in Professor Sisk’s post is that contraception is junior-varsity 
healthcare, and that it’s okay if there are gaps in contraception coverage or 
if women are left to fend for themselves to get contraception. That is a 
dubious policy position, and it was wisely rejected by the political branches. 
However one comes down on the religious objections that are now being asserted 
in court, Professor Sisk’s view – that government officials are “gleefully 
impose[ing] their views on opponents by needless overreach” – makes sense only 
if you assume that certain people’s religious views are the only views that 
matter, no matter how much that burden third parties.


On Feb 17, 2014, at 6:38 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Derek Gaubatz’s post concludes with a point that is too often lost in the sound 
and fury about the imposition of the abortificient/contraception mandate on 
employers of faith – which is that the mandate is dubious public policy (even 
on its own terms) and this dispute could have been avoided but for political 
considerations.  This is another sad episode in modern politics in which those 
with power – of either party and both sides of the spectrum – gleefully impose 
their views on opponents by needless overreach when they get a political 
victory.  The last thing that the Catholic bishops or that Notre Dame wanted 
was this legal fight.  The Administration imposed the mandate so broadly to 
score ideological points with its pro-choice constituency, adopting a policy 
with a weak connection to significant public policy or health care needs, given 
the wide and inexpensive availability of contraception.  Regardless of the 
strength of the RFRA and constitutional claims by various employers for 
exemption from the abortifacient/contraception mandate, the lesson that should 
be taken 

Re: Notre Dame-- where's the complicit participation? Sincerity

[Greg Lipper]

As I explained in my previous post, the supposed alternatives to the current 
regulations aren't as effective, and in any event are unlikely to be 
politically viable due to opposition by many of the same people who oppose the 
current system. These just a modicum of effort suppositions appear to be 
based on misunderstandings of all sorts of things — and would subject the 
affected women to the very costs and burdens that the women's health provisions 
attempted to address.

Virtually all Americans and virtually all American Catholics support (or do not 
oppose) the use of contraception. Some oppose it on religious grounds, and if 
we can accommodate them without harming or burdening others, then we should 
probably do so. But here there are harms and burdens to third parties. We 
wouldn't accept a religious challenge to the equal pay laws, even though the 
government could make make up the difference by paying affected women a salary 
supplement; that option would be burdensome and demeaning to women, even though 
it would be theoretically possible and even if some of the affected women could 
afford to feed their families without it. I don't see why we should burden the 
affected women in these cases just because the particular item at issue 
involves sex and procreation.

On Feb 17, 2014, at 8:40 PM, Gaubatz, Derek 
dgaub...@imb.orgmailto:dgaub...@imb.org wrote:

Respectfully, I think you missed the point of Professor Sisk's argument (and 
mine in the preceding post).   The argument is not that religious views are the 
only ones that matter and that they must triumph over women's health concerns.  
 Instead, the argument was that with just a modicum of effort, a system could 
very easily have been devised that would have accommodated both health policy 
concerns and religious liberty interests.   (Yes, there might be some 
government financial cost to such a solution, just as there are to some other 
accomodationist solutions like providing kosher diets for prisoners or armed 
forces personn, but that cost has a good return of maintaining harmony among a 
plural society and respecting the dignity of the individual believer).   I've 
yet to hear a good argument as to why that wouldn be a better outcome.   When 
the government knows that a large number of citizens have strong religious 
objections to a particular policy, why isn't it better for the government to 
recognize the religious nature of this portion of its citizenry and achieve its 
desired policy ends in a way that doesn't subject these citizens to crippling 
fines for seeking to live their lives in accord with their faith?

Grace and peace to you,
Derek
From: Greg Lipper
Sent: Monday, February 17, 2014 6:35 PM
To: Law  Religion issues for Law Academics
Reply To: Greg Lipper
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity


Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to 
the enactment of the women’s health provisions in the first place. Let me try 
to address a few of the most important points:

1. The distinction between “medically-indicated” (non-contraceptive) uses of 
contraception and “non-medical” uses of contraception is spurious. Put aside 
for a moment the importance of allowing women to control their own bodies, stay 
in school, rise in the workplace, etc. Contraception qua contraception is still 
critical for women’s health (planned pregnancies lead to better prenatal care, 
and some women have health conditions that make pregnancy dangerous) and for 
the health of the children (planned pregnancies lead to better prenatal care, 
and properly spaced pregnancies are better for the children).

2. Even if the medical/non-medical distinction were real, imagine having to go 
to your HR department for permission to receive coverage for 
“medically-indicated” uses of contraception. It’s a trifle infantalizing.

3. There is also no such thing as “ordinary contraception” (which Professor 
Sisk posits can be purchased for $10 a month, leaving medical coverage 
unnecessary). I’m assuming that Professor Sisk uses that term to refer to the 
birth-control pill. Other forms of contraception (such as IUD) are far more 
effective and also much more expensive; their high upfront cost leads many 
women to choose cheaper and less effective methods. Even if IUD were somehow 
considered an aspirational luxury, oral contraception isn’t appropriate for 
some women, for instance due to side effects. So we can’t just send women to 
CVS sans insurance.

4. Even if oral contraception were the only game in town, $120 a year is 
nothing to sneeze at, especially for low-wage workers – the very people who 
already face significant financial barriers to obtaining contraception.

5. Many of the same people who have opposed the contraception-coverage 
regulations most strenuously would be among the loudest voices opposing a 
government program to fund/subsidize contraception for women whose employers 
refused

final thoughts on the importance/availability of contraception

[Greg Lipper]

One closing note about the exchange of the last few hours:

Many people, including and especially many males, are unlikely to be aware of 
all of the relevant factors affecting the cost and availability of 
contraception. As a result, it is unfortunate that (other than in the Notre 
Dame case), the women directly affected by these lawsuits aren’t before the 
courts. 


Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church  State
(202) 466-3234 x210

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Re: final thoughts on the importance/availability of contraception

[Greg Lipper]

I’ll address Mark’s points below.

On Feb 18, 2014, at 12:21 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
wrote:

 I wonder if others (especially other males) have the same negative reaction 
 I do to the terminology Greg (Lipper, not Sisk) uses here. Men are described 
 as males. Women are described as women. This seems to be common usage in 
 some circles.

I actually have no idea why one term or another would be considered to be more 
or less good/bad, but I’m happy to use the terms “men” and “females” if that is 
more acceptable to you…

 With regard to the earlier point that some people who don't want to be forced 
 to provide contraceptives/abortifacients/sterilizations also would oppose 
 having the government provide them, which somehow undercuts their religious 
 liberty claim: 

No, it undercuts the claim that there an “easy” alternative that would have 
avoided the need for the current regulations. And it suggests that these cases 
are about preventing women from using contraception – however the obtain it – 
and not about complicity in that decision.

 I suppose most conscientious pacifists would oppose their government waging 
 war. They don't want to engage in it personally, and we honor that, without 
 complaining that they also use the political process to oppose war. If they 
 lose in the political arena, we make them pay taxes even though the taxes 
 will be used for the military, and for the most part they are willing to pay 
 the taxes. But we don't make them fight.

Putting aside my surprise that (many decades after the 1950s) we are comparing 
contraception to war, this analogy doesn’t quite work. The proper analogy would 
be (a) someone objecting to fighting in the war, and saying that instead, the 
government can send a drone, and then (b) opposing legislation that would 
enable the government to pay for drones. One would rightly conclude from this 
behavior that the objector didn’t want there to be a war (whether or not they 
were involved in it), just as one would conclude here that the plaintiffs in 
these cases don’t want women to use contraception (whether or not they are 
involved in it). 

We don’t make the objectors fight because we can still fight the war without 
them and we don’t have to materially change the battle plan. But if we couldn’t 
– if the war effort would suffer without the objectors, and if their absence 
would threaten the lives of other troops – I have no doubt that we would make 
them fight. 

(In all events, we easily dismiss an objector’s argument – akin to the argument 
advanced by Notre Dame and other nonprofits – that he was substantially 
burdened by the mere act of objecting because his objection paves the way for 
someone to be drafted in his place). 

 If, after the political processes play themselves out, Congress requires us 
 all to be taxed to provide contraceptives/etc., then the objectors here will 
 pay whatever taxes they must pay (and we wouldn't give them an exemption). 

By this logic, the cases that rejected free exercise challenges to the minimum 
wage and equal pay laws were wrongly decided, because the government could have 
raised taxes and made up the pay differences itself.

We would also need a government mental-health insurance program, a government 
blood transfusion program, and a government gelatin-covered pill program, 
because other employers will be owned by people with religious objections to 
offering coverage for these forms of medical care, too. 

 Of course, at some point a government that funded large numbers of elective 
 abortions might be seen by some people as having forfeited its legitimacy. 
 But that's a question for another day.

I thought that we were talking about contraception, not abortion. Are you 
saying that they are the same thing? That a government seeking to ensure access 
to contraception has forfeited its legitimacy? All I can say is – I appreciate 
your candor. 

Greg

Gregory M. Lipper
Senior Litigation Counsel
Americans United for Separation of Church  State
(202) 466-3234 x210

 
 Mark
 
 Mark S. Scarberry
 Pepperdine University School of Law
 
 Sent from my iPad
 
 On Feb 17, 2014, at 6:23 PM, Greg Lipper lip...@au.org wrote:
 
 One closing note about the exchange of the last few hours:
 
 Many people, including and especially many males, are unlikely to be aware 
 of all of the relevant factors affecting the cost and availability of 
 contraception. As a result, it is unfortunate that (other than in the Notre 
 Dame case), the women directly affected by these lawsuits aren’t before the 
 courts. 
 
 
 Gregory M. Lipper
 Senior Litigation Counsel
 Americans United for Separation of Church  State
 (202) 466-3234 x210
 
 ___
 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

Re: final thoughts on the importance/availability of contraception

[Greg Lipper]

Notre Dame's lawyer also said his client would object even to sending a letter 
(it's own letter, not the HHS form) to the government, if the govt would then 
require the third party insurance company to provide coverage to ND 
employees/students.

The argument about the particular HHS form appears to be a red herring—ND's 
objection is to the govt arranging for contraception coverage after ND opts out.

So, in the analogy: you flip a switch, which defuses the bomb in my office. The 
govt then arranges for someone else to blow it up.

(Now that I'm sufficiently spooked, I'm going to try and get some sleep…)


On Feb 18, 2014, at 2:08 AM, Arthur Spitzer 
artspit...@gmail.commailto:artspit...@gmail.com wrote:

I wonder if there's any use in trying to get agreement on what Notre Dame's 
(and Little Sisters') argument is?  Greg Lipper characterizes it this way, as 
do many others:

In all events, we easily dismiss an objector’s argument – akin to the argument 
advanced by Notre Dame and other nonprofits – that he was substantially 
burdened by the mere act of objecting because his objection paves the way for 
someone to be drafted in his place.

But although Judge Posner did his damndest to prevent Notre Dame's lawyer from 
explaining his client's position, I gather that is not Notre Dame's  argument.  
If I understand it, Notre Dame's  argument is that it is substantially burdened 
by submitting the government's form because that form -- unlike, say, a letter 
addressed to the Secretary of HHS or a complaint in a civil action or a 
newspaper op-ed -- affirmatively authorizes an insurance administrator to 
provide contraception.

If that's difficult to understand, here's an analogy of my own invention:  Do I 
object to flipping a light switch on the wall? It depends on what the switch is 
attached to.  If all it does it turn on a light bulb on the ceiling, I have no 
objection.  But if it also closes a circuit that sets off a bomb at Greg 
Lipper's office, then I object.  The government argues that its form just turns 
on a light bulb.  Notre Dame and the Little Sisters say it also sets off a bomb.

I don't know if that argument is factually true or false, but I think that's 
the argument.  Does anyone think that's not actually what Notre Dame and Little 
Sisters are arguing?

Then here's the harder part: if you tell me that flipping the light switch will 
just turn on a light bulb on the ceiling, but that if and only if I flip the 
switch, some other guy will set off the bomb, well, then, I still won't flip 
the switch.  Am I just being irrational?

Art Spitzer
not speaking for my employer




On Tue, Feb 18, 2014 at 1:02 AM, Greg Lipper 
lip...@au.orgmailto:lip...@au.org wrote:
I’ll address Mark’s points below.

On Feb 18, 2014, at 12:21 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

 I wonder if others (especially other males) have the same negative reaction 
 I do to the terminology Greg (Lipper, not Sisk) uses here. Men are described 
 as males. Women are described as women. This seems to be common usage in 
 some circles.

I actually have no idea why one term or another would be considered to be more 
or less good/bad, but I’m happy to use the terms “men” and “females” if that is 
more acceptable to you…

 With regard to the earlier point that some people who don't want to be forced 
 to provide contraceptives/abortifacients/sterilizations also would oppose 
 having the government provide them, which somehow undercuts their religious 
 liberty claim:

No, it undercuts the claim that there an “easy” alternative that would have 
avoided the need for the current regulations. And it suggests that these cases 
are about preventing women from using contraception – however the obtain it – 
and not about complicity in that decision.

 I suppose most conscientious pacifists would oppose their government waging 
 war. They don't want to engage in it personally, and we honor that, without 
 complaining that they also use the political process to oppose war. If they 
 lose in the political arena, we make them pay taxes even though the taxes 
 will be used for the military, and for the most part they are willing to pay 
 the taxes. But we don't make them fight.

Putting aside my surprise that (many decades after the 1950s) we are comparing 
contraception to war, this analogy doesn’t quite work. The proper analogy would 
be (a) someone objecting to fighting in the war, and saying that instead, the 
government can send a drone, and then (b) opposing legislation that would 
enable the government to pay for drones. One would rightly conclude from this 
behavior that the objector didn’t want there to be a war (whether or not they 
were involved in it), just as one would conclude here that the plaintiffs in 
these cases don’t want women to use contraception (whether or not they are 
involved in it).

We don’t make the objectors fight because we can still fight the war

Re: The nonprofit contraception services cases

[Greg Lipper]

 with 
  smiling children next to him
 
  Jon
 
 
  On 2014-01-06 20:45, Gaubatz, Derek wrote:
  It seems to me that there is a much less nefarious explanation. In the
  context of those Establishment Clause challenges, it was permissible
  for a religious entity like Notre Dame to receive the government funds
  so long as they were not used for items deemed to be inherently
  religious activities such as worship or instruction. In saying that
  the provision of health insurance was a secular expense, Notre Dame
  was merely distinguishing such expenses from those that might be spent
  on things like theological instruction or wine for a mass. But to say
  that the provision of health insurance is a secular expense, unlike
  worship or instruction, says nothing about whether Notre Dame can and
  does apply its religious beliefs to what type of health insurance it
  provides. Moreover, it would also be an “administrative” or “secular”
  expense (as opposed to inherently religious) for Notre Dame to pay for
  the salary of someone running one of its government grant programs,
  but that doesn’t mean Notre Dame can’t apply its religious beliefs and
  criteria to selecting those that it hires. So I think it is fair to
  say that there can be secular expenses (as opposed to inherently
  religious) under Establishment Clause jurisprudence that still involve
  the exercise of religious beliefs by a religious entity.
 
 
  FROM: 
  religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
   [3]
  [mailto:religionlaw-boun...@lists.ucla.edu [4]] ON BEHALF OF Marci
  Hamilton
 
  This reminds me of the religious organizations
 
  who tell their employees in writing that they do not discriminate but
  when they get sued for discrimination
 
  argue the ministerial exception.
 
  Religious employers appear to be no different from any other in
  seeking the most beneficial position at the
 
  expense of employees or others. The question
 
  is whether courts will hold them to their
 
  previous statements and positions.
 
  Marci A. Hamilton
 
  On Jan 6, 2014, at 4:21 PM, Greg Lipper 
  lip...@au.orgmailto:lip...@au.org [5] wrote:
 
  One further note, related to Marci’s question, and detailed in our
  intervention papers: Notre Dame has emphasized the secular nature of
  its benefits when in its legal interests to do so.
 
  In _Laskowski v. Spellings_, 546 F.3d 822 (7th Cir. 2008), an
  Establishment Clause challenge to public funding of a
  teacher-training program at Notre Dame, the university argued that
  the benefits that it provides, including health insurance, are
  “secular expenses.” _See _Br. of Def.-Intervenor-Appellee at 7-8,
  _Laskowski_, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.
 
  And in _American Jewish Congress v. Corporation for National 
  Community Service, _323 F. Supp. 2d 44 (D.D.C. 2004), _rev'd sub nom.
  Am. Jewish Cong. v. Corp. for Nat'l.  Cmty. Serv_., 399 F.3d
  351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre
  Dame’s receipt of public funds, the University argued that purchasing
  health insurance is “administrative” in nature and does not
  constitute “religious instruction or activity.” Mem. of
  Def.-Intervenor Univ. of Notre Dame, _Am. Jewish Cong._, 2003 WL
  25709328_,_at Part A, § 3, para 10.
 
  So whatever else Notre Dame may or may not do to create a religious
  educational environment, presumably it can’t have it both ways –
  health insurance is either a secular expense or involves religious
  exercise, but it can’t be both at the same time.
  the messages to others.
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Re: The nonprofit contraception services cases

[Greg Lipper]

One further note, related to Marci’s question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National  Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l.  Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
University argued that purchasing health insurance is “administrative” in 
nature and does not constitute “religious instruction or activity.” Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can’t have it both ways – health insurance is either 
a secular expense or involves religious exercise, but it can’t be both at the 
same time.





On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:

Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jan 6, 2014, at 3:15 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:

Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State  Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edumailto:rgarn...@nd.edu

To download my scholarly papers, please visit my SSRN 
pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://mirrorofjustice.blogs.com/

Twitter:  @RickGarnetthttps://twitter.com/RickGarnett

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
rgarn...@nd.edumailto:rgarn...@nd.edu wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
 State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 
employees “this is who we are, and if you want to work for us, you