Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts

Re: Zubik preview series

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

Zubik preview series

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.

PS RE: Zubik / Little Sisters - testing the scope via a hypothetical

Let me just add that we filed the brief because of the two arguments summarized in my first paragraph below. That is where we see a threat to religious liberty protections. We would not have filed just to defend the government’s interpretation of its regulations. But once we decided to file, we

RE: Zubik / Little Sisters - testing the scope via a hypothetical

I think their argument that courts simply cannot question any claim that religious exercise is substantially burdened would, if adopted by the Court, discredit religious liberty claims, however this case should come out under a more appropriate analysis. And I think their argument that the

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--That's a helpful clarification. It seems to me, then, that your position that the Little Sisters' claim poses a serious threat to religious liberty is based on your view that the government is right, and the Sisters are wrong, about whether the government is trying to make them authorize

RE: Zubik / Little Sisters - testing the scope via a hypothetical

No, I do not think that all those people have no burdens. I filed a brief in support of Hobby Lobby; they were substantially burdened. They had to pay for, and contract for, what they reasonably believed to be abortifacients. That case was not about what their employees might do; it was about

Re: Zubik / Little Sisters - testing the scope via a hypothetical

This is getting a bit removed from the main discussion, but just a couple of points in response to Brad Jacob's post: 1. The federal government, of course, has not required anyone to "provide abortifacients to their employees." That's simply a tendentious way of characterizing the regulation.

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Doug--I understand that's the line you think Congress should have adopted, but that seems to be more a conclusion rather than a test. If the petitioners are wrong about the test for what is a substantial burden, does your brief articulate the correct test for courts to follow? I didn't see it

RE: Zubik / Little Sisters - testing the scope via a hypothetical

While it is certainly true that Smith was the catalyst for RFRA, if you are suggesting that the statute itself had a small focus, that was not the case. Those of us involved in working RFRA through Congress had a huge vision – to overturn the effects of Smith and return all free exercise cases

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Would another way to put it be that, while the government may never question the theological claim that the religious petitioner considers himself/herself to be burdened, at some point the connection becomes so attenuated that the courts will not, as a legal matter, regard the burden involved

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I appreciate very much your proposed brightline test as it appears narrowly tailored to address this issue that is before the court in the Zubik / Little Sisters / etc. cases, and it would do so with surgical precision. Having said that, your 3/20/2016 article in the Washington Post about the

RE: Zubik / Little Sisters - testing the scope via a hypothetical

Cases such as those Chip describes probe far too deeply into what the religious claimant believes. And they are not the only ones. Congress tried to address such cases in the RLUIPA amendments to RFRA, specifying that a religious practice need not be compulsory or central to be protected. The

Re: Zubik - a different hypo, closer to the case itself

Marty, You posit two potential requirements: the government requires the employer to provide the information or the government requires the employee to provide the information. Those raise different issues, don't they? I haven't had time to follow these most recent list exchanges in detail but

Re: Zubik / Little Sisters - testing the scope via a hypothetical

We cite four federal district court decisions at pp. 228-229 in the book -- Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones (Colorado); Wares v. Simmons (Kansas), https://casetext.com/case/wares-v-simmons-2. Ware involved rabbinical testimony that certain books, desired by

Re: Zubik - a different hypo, closer to the case itself

Let me try out another hypo, closer to the facts of Zubik, to see what people's reactions are. As I understand it, what the government and Doug are proposing is that the Court establish another bright-line rule, akin to the one the Court developed in *Bowen *and *Lyng*, excluding a certain

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Ira, I don't understand the distinction I think you are trying to make. We agree that sounds like a court must accept the sincere testimony of a Muslim prisoner who claims his faith requires him to keep a half inch beard. But you believe the court may instead decide that being forced to shave

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Bob Tuttle and I have written a book ("Secular Government, Religious People") that centrally argues that the Establishment Clause renders the state incompetent to decide exclusively ecclesiastical questions. This is the basis for the ministerial exception, in which the question is general fitness

RE: Zubik / Little Sisters - testing the scope via a hypothetical

So, under this approach, would a court be empowered to assess the magnitude of the divine disfavor a plan sponsor claims it would suffer if it complied with the mandate? Thanks. Greg Baylor [Alliance Defending Freedom] Gregory S. Baylor Senior Counsel,

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Eric Kniffin writes that ". . . whether there is a substantial burden on a sincere religious belief is something courts can determine by looking at the force of the government’s compulsion." That's correct, but it's only half the story. Look at Yoder (on which RFRA declares it is modeled), in

Re: Zubik / Little Sisters - testing the scope via a hypothetical

Actually, Doug, I don't think the petitioners in Zubik ever "say that the courts cannot question what counts as a religious burden.” They merely insist that courts cannot question the substance of their sincere religious belief, a point I assume you would agree with. But this is not to deny