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 had to take a position on the regulations as well. The “we” in this paragraph is not royal; it is me and the lawyers at the Baptist Joint Committee.
Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: Laycock, H Douglas (hdl5c) Sent: Tuesday, March 22, 2016 5:26 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: 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 exemption for churches and their integrated auxiliaries necessarily requires an exemption for all religious non-profits would, if accepted, make it far more difficult to enact religious exemptions for anybody. Those arguments are dangerous, whatever the result in this case. But on the facts of this case, yes: If the religious non-profits had to contract with their insurance companies to provide contraception, that would clearly be a substantial burden in my view. If they had to instruct or authorize their insurance companies to provide contraception at the insurer’s expense, that is a closer case, but I am inclined to view that as a substantial burden. But after the regulations were revised in response to the stay orders in Little Sisters and Wheaton College, I think that neither of those things is going on. And I think that is pretty clear. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kniffin, Eric N. Sent: Tuesday, March 22, 2016 5:15 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: 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 the coverage in their plan. Is that fair? To me, that's a very important qualification to your analysis. Without it, people might read your argument to say that the petitioners' claims are dangerous even if the government is really trying to force them to authorize coverage. And from your emails, it now sounds to me like that is not your position after all (which, at least to me, is a relief!). Eric On Mar 22, 2016, at 2:16 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: 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 what Hobby Lobby and its owners were required to do. There is an argument in Zubik about whether the religious employers have to authorize their insurance companies to provide separate coverage, but I think the government has much the better of that argument. The government authorizes the separate coverage. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kniffin, Eric N. Sent: Tuesday, March 22, 2016 3:54 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: 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 in there. The problem with your line, it seems to me, is that loads of religious people have religious beliefs about what they can or cannot help others to do, even if someone might characterize the other as at "arm's length." Mr. Thomas thought he couldn't help make tank turrets, even though he wasn't going to shoot the tank's guns or send it onto the battlefield. Many people would not sign a death warrant, even though others will perform the execution separately. Religious universities probably (hopefully!) object to allowing for a cable television package that includes pornography to be provided to their dormitories. All of those in some way involve people who object to taking the action required of THEM (making turrets, signing a piece of paper, contracting with a cable company) because of what someone else will do based on their authorization. Do you think all of those people have no substantial burden if forced to take those actions by large fines? Eric On Mar 22, 2016, at 11:08 AM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: 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 brief that the Baptist Joint Committee and I filed emphasizes the error of these cases, the danger of overly intrusive inquiries, and the need for substantial deference to religious understandings of what is burdensome. But we say that such deference cannot be absolute, that it never has been absolute, and that if it were absolute, absurd results would follow. But absolute deference is what both sets of petitioners ask for. They say the courts can examine sincerity, and they can examine the magnitude of the penalty for non-compliance, but then the substantial burden inquiry is over. Courts cannot examine the substantiality of the burden on religion, apart from the penalties. And as Marty suggested in a separate post, our brief explicitly proposes a bright-line test: “Religious objectors are not entitled to exemptions for secular entities they deal with at arm’s length, or to control the government’s regulation of such entities.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 22, 2016 12:40 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: 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 a prisoner, were non-essential to the Jewish faith. Pre-1997 RFRA cases from prisons were thick with decisions involving the question of religious burdensomeness (prison officials do not want to have to meet the compelling interest test, even a prison-adjusted one, every time a prisoner asserts the religious significance of a forbidden practice.) I cite a number of them in The Failure of RFRA, 20 U. Ark. Little Rock L.J. 575 (1998). RLUIPA land use cases involve questions of the religious impact of not being able to expand a church, add a wing for a church school, or build a parking lot. And do you deny that Yoder invites inquiry into the religious significance or religious impact of a challenged policy? That is the only "burden" inquiry in Yoder. Please keep in mind that I find all of this deeply troublesome. But RFRA invites it. (Thomas v. Review Board says courts cannot second guess a claimant's reading of Scripture. But that does not mean courts cannot question the religious significance of the actions forbidden or required.) On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. <eknif...@lrrc.com<mailto:eknif...@lrrc.com>> wrote: 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 is, contrary to the prisoner's testimony, actually not that big of a deal? What cases have been decided on this basis? Eric _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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