Re: Hobby Lobby transcript
. But if it turns out that most for-profits use issuers (such as Aetna), or if very few for-profits with self-insured plans would invoke the accommodation, then perhaps the government would have no good basis for refusing to extend the secondary accommodation to for-profits. Of course, Greg Lipper is right that the Justices would hardly be inclined to settle upon this solution if it would not resolve the RFRA claims -- if the for-profit cases would simply slide on over into the Notre Dame column, and remain unresolved. But presumably, if they embrace this compromise, they will signal (or even hold) that the Notre Dame-like claims are meritless. (Thats another virtue of this solution -- it would take care of all the outstanding cases.) 2. As for the possibility that the Justices will hold that there is no substantial burden because Hobby Lobby can simply drop its health care plan . . . Dan Conkle is right that Paul Clement asked for an opportunity for a trial on that question. I have argued that we neednt even get there, because the plaintiffs have failed to satisfy the requirement of even pleading facts that would, if proved, demonstrate that that option would impose substantial pressure on them to offer contraceptive coverage: http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html [7]. Of course, these or other plaintiffs might file new complaints that satisfy Iqbal/Trombly, in which case there would, indeed, need to be trials on the question. I am skeptical that most employers will be able to prove the requisite degree of pressure -- see http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html [8] -- but perhaps some would. The whole point of my posts on this question has been that its a highly fact-intensive question that should be adjudicated case-by-case. 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder _practice_ of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the governments interest, but also the impact on third parties. Of course, as most of you know, shes absolutely right -- this is in fact _exactly_ what the Court was doing in cases from _Braunfeld_ to _Jimmy Swaggart_, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case Im aware of in which the Court was honest about its balancing was Warrens plurality opinion in _Braunfeld_.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? On Tue, Mar 25, 2014 at 11:46 PM, Alan Brownstein aebrownst...@ucdavis.edu [9] wrote: I think Martys second point below about the Courts somewhat positive reception to the least restrictive means argument is important because it provides a basis for resolving this case in Hobby Lobbys favor that is relatively limited in its application. Clement argues that this is a unique case because it is simply about who should pay for insurance coverage that could easily be provided by the government or other private entities (insurers). Clement explicitly distinguishes this case from cases involving religious objections to anti-discrimination laws because the government cannot mitigate the harms to third parties if accommodations to such laws are granted. If the Court accepts that argument in its opinion, the door would be open for for-profit, privately held businesses to assert RFRA claims, but the opinion would say little to encourage claimants to believe that they would succeed on the merits in such lawsuits when there is harm to third parties that cannot be avoided by alternative regulatory approaches -- which is the case when anti-discrimination laws are at issue. Alan - FROM: religionlaw-boun...@lists.ucla.edu [1] [religionlaw-boun...@lists.ucla.edu [2]] on behalf of Marty Lederman [lederman.ma...@gmail.com [3]] SENT: Tuesday, March 25, 2014 1:19 PM TO: Law Religion issues for Law Academics SUBJECT: Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf [4] Audio should be available later in the week. Id be curious to hear what others who attended thought of the argument. Ill mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument Ive been stressing that the employers religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real
Re: Hobby Lobby transcript
I'm much relieved that my memory was not entirely fermisht! Sent from my iPhone On Mar 25, 2014, at 5:37 PM, Marc Stern ste...@ajc.orgmailto:ste...@ajc.org wrote: One of the blue law cases did involve a kosher butcher - I think it was named Crown Kosher Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Levinson, Sanford V Sent: Tuesday, March 25, 2014 6:12 PM To: 'Law Religion issues for Law Academics' Reply To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby transcript I stand thoroughly corrected! And, of course, there is no general category called “kosher clothes.” This is a good demonstration that it’s always a good idea to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I’m glad I’m taking an exam in Chip’s course :) sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 25, 2014 5:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19
Re: Hobby Lobby transcript
pay for insurance coverage that could easily be provided by the government or other private entities (insurers). Clement explicitly distinguishes this case from cases involving religious objections to anti-discrimination laws because the government cannot mitigate the harms to third parties if accommodations to such laws are granted. If the Court accepts that argument in its opinion, the door would be open for for-profit, privately held businesses to assert RFRA claims, but the opinion would say little to encourage claimants to believe that they would succeed on the merits in such lawsuits when there is harm to third parties that cannot be avoided by alternative regulatory approaches -- which is the case when anti-discrimination laws are at issue. Alan -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ lederman.ma...@gmail.com] *Sent:* Tuesday, March 25, 2014 1:19 PM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby transcript
I think Mary is dead-on on this point and would love to see the court interpret RFRA as inherently and unavoidably including some sort of balancing test that takes into account not just whether the burden is substantial, but just how substantial or intrusive it is, as well as recognizing that the state’s compelling interests are not all equal, and that the state’s interest includes the employee’s liberty and economic and health interests as well as the “state’s” separable interests and that the employee’s interests should be included in the mix in assessing the substantiality of the burden and the compellingness of the state’s interest. Of course this requires RFRA to be applied somewhat differently from the way it is written, but the court has a strong leg to stand on for this sort of intepretation — RFRA itself is the “Restoration” act and specifically states that it was returning the law to what it was before Smith — and so congressional intent can be used to interpret these terms in the very way Marty articulates below. We all know that the court often puts its decisions into a form that does not reflect fully the “real reasons” behind the decision, but rather puts them into the language and structures of our traditional forms of legal reasoning. While that is generally to the good, I do at times wish the court would be more willing to rework its formula of words to reflect what it is doing more forthrightly. Of course this has been true for a long time in EP with its rational basis and less deferential rational basis review where, as suggested by Justice Thurgood Marshall (among others) the court is really engaging in a balancing test looking at not only the interests of the state, and the interests of the person whose liberty is at stake, but also at the interests of third parties, especially in the employment setting. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ “It’s not the note you play that’s the wrong note – it’s the note you play afterwards that makes it right or wrong.” Miles Davis On Mar 26, 2014, at 7:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which the Court was honest about its balancing was Warren's plurality opinion in Braunfeld.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby transcript
I don't think Marty is suggesting otherwise, but on the substantial burden issue and the Iqbal/Twombly point, I can't think that there would have to be a new lawsuit. Wouldn't the Supreme Court properly remand to permit the district court to grant leave to amend the complaint under FRCP 15(a)(2)? Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, March 26, 2014 7:44 AM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Thanks very much to everyone for the responses. Some follow-ups: 1. Most importantly, in response to Alan, the less-restrictive solution that appeared to have some traction with the Justices was not simply that the government could in theory pay for the services (with single-payer or a new tax scheme, for instance). Such a holding would be a radical deviation from decades of decisions -- Lee and Tony Susan Alamo would have come out differently, for instance. And the SG would and should have resisted that idea strenuously, as he has done, in his briefs. The argument, instead, is that once the agency has already offered an alternative (here, the Notre Dame solution) to a certain subset of objectors (nonprofits) -- thereby demonstrating that that alternative is viable for at least a certain group -- it has to treat other religious objectors the same, unless there is good reason to treat them differently. This is, in effect, merely O Centro all over again (recall that the government had no good reason for treating hoasca differently from peyote). As the SG indicated in his answers to questions about the secondary accommodation, there might be such a good reason for disparate treatment here: For instance, extending the accommodation to for-profit corporations might be far more costly to the government than if it is limited to nonprofits, depending on how many for-profit objectors are self-insured and use third-party administrators. (In such cases, the government effectively picks up the tab by giving credits to the TPAs.) Because these plaintiffs have not asked for that remedy, there hasn't been any occasion for the government to estimate such costs yet. But if it turns out that most for-profits use issuers (such as Aetna), or if very few for-profits with self-insured plans would invoke the accommodation, then perhaps the government would have no good basis for refusing to extend the secondary accommodation to for-profits. Of course, Greg Lipper is right that the Justices would hardly be inclined to settle upon this solution if it would not resolve the RFRA claims -- if the for-profit cases would simply slide on over into the Notre Dame column, and remain unresolved. But presumably, if they embrace this compromise, they will signal (or even hold) that the Notre Dame-like claims are meritless. (That's another virtue of this solution -- it would take care of all the outstanding cases.) 2. As for the possibility that the Justices will hold that there is no substantial burden because Hobby Lobby can simply drop its health care plan . . . Dan Conkle is right that Paul Clement asked for an opportunity for a trial on that question. I have argued that we needn't even get there, because the plaintiffs have failed to satisfy the requirement of even pleading facts that would, if proved, demonstrate that that option would impose substantial pressure on them to offer contraceptive coverage: http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html. Of course, these or other plaintiffs might file new complaints that satisfy Iqbal/Trombly, in which case there would, indeed, need to be trials on the question. I am skeptical that most employers will be able to prove the requisite degree of pressure -- see http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html -- but perhaps some would. The whole point of my posts on this question has been that it's a highly fact-intensive question that should be adjudicated case-by-case. 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which
RE: Hobby Lobby transcript
Consistent with Steve's post, the Court in City of Boerne v. Flores at least hinted that RFRA could be interpreted to require intermediate rather than full-fledged strict scrutiny: Even assuming RFRA would be interpreted in effect to mandate some lesser test, say one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. 521 U.S. at 534. More recent precedents, of course, not to mention RFRA's explicit language, might make it difficult for the Court to move in this direction. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 26, 2014 8:49 AM To: Law Religion Law List Subject: Re: Hobby Lobby transcript I think Mary is dead-on on this point and would love to see the court interpret RFRA as inherently and unavoidably including some sort of balancing test that takes into account not just whether the burden is substantial, but just how substantial or intrusive it is, as well as recognizing that the state's compelling interests are not all equal, and that the state's interest includes the employee's liberty and economic and health interests as well as the state's separable interests and that the employee's interests should be included in the mix in assessing the substantiality of the burden and the compellingness of the state's interest. Of course this requires RFRA to be applied somewhat differently from the way it is written, but the court has a strong leg to stand on for this sort of intepretation - RFRA itself is the Restoration act and specifically states that it was returning the law to what it was before Smith - and so congressional intent can be used to interpret these terms in the very way Marty articulates below. We all know that the court often puts its decisions into a form that does not reflect fully the real reasons behind the decision, but rather puts them into the language and structures of our traditional forms of legal reasoning. While that is generally to the good, I do at times wish the court would be more willing to rework its formula of words to reflect what it is doing more forthrightly. Of course this has been true for a long time in EP with its rational basis and less deferential rational basis review where, as suggested by Justice Thurgood Marshall (among others) the court is really engaging in a balancing test looking at not only the interests of the state, and the interests of the person whose liberty is at stake, but also at the interests of third parties, especially in the employment setting. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ It's not the note you play that's the wrong note - it's the note you play afterwards that makes it right or wrong. Miles Davis On Mar 26, 2014, at 7:44 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which the Court was honest about its balancing was Warren's plurality opinion in Braunfeld.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly
RE: Hobby Lobby transcript
Marty's argument did seem to get some traction. But in addressing the alternative of not providing insurance and simply paying the $26 million ($2000 per employee), Clement suggested that the overall cost to the employer - including the need to pay higher wages and the adverse impact on attracting employees, etc. - still would amount to a substantial burden. He also argued that the government had not litigated the case on the theory that this alternative was a viable option, and he suggested that he would like a chance to demonstrate - presumably with financial calculations and expert testimony, etc. - that this alternative would not be economically viable and therefore would not eliminate the substantial burden. Here's what he says at p. 28: I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue. This case hasn't been litigated on this particular theory, so I think -- I'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that's not been the nature of the government's theory. So, even if the Court were inclined to accept Marty's argument, wouldn't the challengers have to be given a chance to litigate this question on remand? Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 25, 2014 4:19 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby transcript
In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby transcript
Where is the complicity burden? The financial burden can’t be a burden. If the alternative removes the complicity, and that alternative is available to them, then where is the substantial burden on religion? It was plaintiff’s complicity theory that was the driving force. They had the burden of choosing their ground for showing substantial burden. If they didn’t carry that burden, they didn’t carry it. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has. Margaret Meade On Mar 25, 2014, at 4:53 PM, Conkle, Daniel O. con...@indiana.edu wrote: Marty’s argument did seem to get some traction. But in addressing the alternative of not providing insurance and simply paying the $26 million ($2000 per employee), Clement suggested that the overall cost to the employer – including the need to pay higher wages and the adverse impact on attracting employees, etc. – still would amount to a substantial burden. He also argued that the government had not litigated the case on the theory that this alternative was a viable option, and he suggested that he would like a chance to demonstrate – presumably with financial calculations and expert testimony, etc. – that this alternative would not be economically viable and therefore would not eliminate the substantial burden. Here’s what he says at p. 28: “I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue. This case hasn't been litigated on this particular theory, so I think -- I'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that's not been the nature of the government's theory.” So, even if the Court were inclined to accept Marty’s argument, wouldn’t the challengers have to be given a chance to litigate this question on remand? Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 25, 2014 4:19 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note
RE: Hobby Lobby transcript
With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
RE: Hobby Lobby transcript
Is Hobby Lobby in the position of claiming a right to enlist in the armed forces, but, at the same time, to avoid being assigned duties that violate their religious views? I assume the general answer to such a request is you don't have to enlist, but if you do, then you have to do it on the government's terms. This is in no way similar to the claims made in the Medicaid litigation that Florida and other states simply couldn't afford to resist the government's blandishments. Hobby Lobby can decide tomorrow to stop offering insurance and to pay the altogether reasonable tax. Obviously, we'd have a different case if the tax were far in excess of what it would cost to provide acceptable health insurance. They it really would be a penalty. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 25, 2014 4:34 PM To: Law Religion Law List Subject: Re: Hobby Lobby transcript Where is the complicity burden? The financial burden can't be a burden. If the alternative removes the complicity, and that alternative is available to them, then where is the substantial burden on religion? It was plaintiff's complicity theory that was the driving force. They had the burden of choosing their ground for showing substantial burden. If they didn't carry that burden, they didn't carry it. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has. Margaret Meade On Mar 25, 2014, at 4:53 PM, Conkle, Daniel O. con...@indiana.edumailto:con...@indiana.edu wrote: Marty's argument did seem to get some traction. But in addressing the alternative of not providing insurance and simply paying the $26 million ($2000 per employee), Clement suggested that the overall cost to the employer - including the need to pay higher wages and the adverse impact on attracting employees, etc. - still would amount to a substantial burden. He also argued that the government had not litigated the case on the theory that this alternative was a viable option, and he suggested that he would like a chance to demonstrate - presumably with financial calculations and expert testimony, etc. - that this alternative would not be economically viable and therefore would not eliminate the substantial burden. Here's what he says at p. 28: I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue. This case hasn't been litigated on this particular theory, so I think -- I'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that's not been the nature of the government's theory. So, even if the Court were inclined to accept Marty's argument, wouldn't the challengers have to be given a chance to litigate this question on remand? Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 25, 2014 4:19 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage
Re: Hobby Lobby transcript
Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices
RE: Hobby Lobby transcript
I stand thoroughly corrected! And, of course, there is no general category called kosher clothes. This is a good demonstration that it's always a good idea to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I'm glad I'm taking an exam in Chip's course :) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 25, 2014 5:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because
RE: Hobby Lobby transcript
But kosher clothes would have to avoid SHATNES. - Original Message - From: Levinson, Sanford V slevin...@law.utexas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Date: Tue, 25 Mar 2014 22:10:44 + Subject: RE: Hobby Lobby transcript I stand thoroughly corrected! And, of course, there is no general category called kosher clothes. This is a good demonstration that it's always a good idea to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I'm glad I'm taking an exam in Chip's course :) sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 25, 2014 5:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf Audio should be available later in the week. I'd be curious to hear
RE: Hobby Lobby transcript
My dad had a hardware/housewares store in the Bronx. He was not an observant Jew. Everyone was closed on Sunday. He was open on Saturday. He told me he did half of the week's business on Saturday and that it was impossible to be in business and be closed both days. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Tuesday, March 25, 2014 3:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have
Re: Hobby Lobby transcript
One of the blue law cases did involve a kosher butcher - I think it was named Crown Kosher Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Levinson, Sanford VSent: Tuesday, March 25, 2014 6:12 PMTo: 'Law Religion issues for Law Academics'Reply To: Law Religion issues for Law AcademicsSubject: RE: Hobby Lobby transcript I stand thoroughly corrected! And, of course, there is no general category called “kosher clothes.� This is a good demonstration that it’s always a good idea to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I’m glad I’m taking an exam in Chip’s course J sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 25, 2014 5:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: "Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue." On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called "kosher paint." sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the "no employer mandate" argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money.
Re: Hobby Lobby transcript
Will beat me to it. There is a category of clothes that aren't kosher (clothes made with both linen and wool fibers). But of course this isn't a big category of clothing! On Tuesday, March 25, 2014, Alan Brownstein aebrownst...@ucdavis.edu wrote: My dad had a hardware/housewares store in the Bronx. He was not an observant Jew. Everyone was closed on Sunday. He was open on Saturday. He told me he did half of the week's business on Saturday and that it was impossible to be in business and be closed both days. Alan -- *From:* religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');[ religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');] on behalf of Ira Lupu [icl...@law.gwu.edujavascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu'); ] *Sent:* Tuesday, March 25, 2014 3:00 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com wrote: is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354 _5436.pdf -- Hillel Y. Levin Associate Professor University of Georgia School
RE: Hobby Lobby transcript
Yes, and the Crown Kosher case came up in today’s argument. – Dan Conkle From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Tuesday, March 25, 2014 6:21 PM To: religionlaw@lists.ucla.edu; 'Law Religion issues for Law Academics' Subject: Re: Hobby Lobby transcript One of the blue law cases did involve a kosher butcher - I think it was named Crown Kosher Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Levinson, Sanford V Sent: Tuesday, March 25, 2014 6:12 PM To: 'Law Religion issues for Law Academics' Reply To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby transcript I stand thoroughly corrected! And, of course, there is no general category called “kosher clothes.” This is a good demonstration that it’s always a good idea to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I’m glad I’m taking an exam in Chip’s course ☺ sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 25, 2014 5:00 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Braunfeld did not sell meat. From the opinion: Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them), but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their ! religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called kosher paint. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Tuesday, March 25, 2014 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the no employer mandate argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): 15 JUSTICE KAGAN: Well, let's say that that's 16 right. Let's say that they have to increase the wages a 17 little bit. I mean, still we are talking about pretty 18 equivalent numbers. Maybe it's a little bit less; maybe 19 it's a little bit more. But this is not the kind of 20 thing that's going to drive a person out of business. 21 It's not prohibitive. 22 It's like the thing that we talked about in 23 Braunfeld where we said, you know, maybe if the store 24 can't stay open 7 days a week, it makes a little bit 25 less money
RE: Hobby Lobby transcript
I think Marty's second point below about the Court's somewhat positive reception to the least restrictive means argument is important because it provides a basis for resolving this case in Hobby Lobby's favor that is relatively limited in its application. Clement argues that this is a unique case because it is simply about who should pay for insurance coverage that could easily be provided by the government or other private entities (insurers). Clement explicitly distinguishes this case from cases involving religious objections to anti-discrimination laws because the government cannot mitigate the harms to third parties if accommodations to such laws are granted. If the Court accepts that argument in its opinion, the door would be open for for-profit, privately held businesses to assert RFRA claims, but the opinion would say little to encourage claimants to believe that they would succeed on the merits in such lawsuits when there is harm to third parties that cannot be avoided by alternative regulatory approaches -- which is the case when anti-discrimination laws are at issue. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Tuesday, March 25, 2014 1:19 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
