I appreciate Alan's attempt to cabin the divisiveness concept,
but I wonder whether it works. Nothing is beyond the scope of political
decision-making -- there is always the possibility of constitutional amendment,
and, more importantly, so long as various decisions involve the
It is worth recalling that federal RFRA itself was anything but divisive.
Au contraire. It passed with overwhelming support from both parties, and
wide support among civil rights and civil liberties groups (with Hobby
Lobby under advisement, some of these groups are now running from RFRA like
it
What's ironic to me is that the same legislators (I.e. All of them) who
attack the courts for overreaching and making policy-decisions chose to
bestow immense policy-making power on those same courts through RFRA.
There's a legislative process lesson in there somewhere.
On Monday, June 9, 2014,
Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby
(whether RFRA applies to corporations)? [T]he words “person” and “whoever”
include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.
Are the two sides
It's a very old lesson. Legislators support vague delegations aimed at
some general good (clean air, workplace safety, endangered species), and
claim political credit for doing so. Then they (or their successors) sit
back and criticize agencies and courts that have to apply those vague
standards
Chip:
I am in total agreement of your analysis, except that I think there is a
third way. That would be for legislatures to consider religious exemptions
when they enact individual laws (as they did before Smith, and after as
well). The results would still be inconsistent over time ((1) sometimes
The question isn’t only whether Hobby Lobby (and other for-profit corporations
that sell secular goods/services) are persons, but rather whether they are
persons that “exercise religion.” If they are not exercising religion, then
RFRA is not triggered, no matter how much personhood they have.
Legislative (or administrative) exemptions are not a third way of
administering a generalized regime of exemptions under overarching
standards like substantial burdens and compelling interests. Legislative
and administrative exemptions will be in particular contexts, and will lead
to some degree
Just to clarify, I see jurisdiction-by-jurisdiction RFRAs as
implementing what I call a “common-law model”: as with common law defenses,
privileges, and the like, they (1) leave courts with the first call on whether
to create an exemption, but (2) allow legislatures to modify or
Ah. Silly me. Thank you.
On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote:
The question isn’t only whether Hobby Lobby (and other for-profit
corporations that sell secular goods/services) are persons, but rather
whether they are persons that “exercise religion.” If they are
I think we are agreeing, but I'm not actually sure.
Consider the ADA. The ADA requires employers and businesses to make
reasonable accommodations. That's a very vague standard for courts to
apply. But I don't think that courts have been hopelessly inconsistent in
doing so.
Or consider exceptions
It would take an empirical study of the cases under each statute to confirm
Hillel’s intuition that the ADA cases are less more consistent than the RFRA
cases. My intuition would be the opposite – that the cases are probably equally
inconsistent at least in the beginning, and quite possibly
The first SCOTUS opinion interpreting RFRA was O Centro (2006), which was
unanimous, demanding in its statutory application, and a resounding defeat
for the government. O Centro surprised quite a few of us.
A student Note at 95 U. Va. L. Rev. 1281 (2009) argues that O Centro did
little to affect
I agree with Alan's statement below, stated better than I did. I would
add that we now do/should include the nones within the system.
Jon
On 2014-06-08 22:36, Alan Brownstein wrote:
If divisive means that people will be upset by a substantive decision
than Eugene is
“nones”?
Huh. I knew that was a thing, but didn’t really expect to see it here.
Steve
On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote:
I agree with Alan's statement below, stated better than I did. I would add
that we now do/should include the nones within the
There is some authority for not preferring religion over non-religion.
I do not think religious people should get exemptions reasons not
connected to the practice of their religion (church services, prayer,
lighting candles, sacrificing chickens etc.) To me many requests sound
like I think it
I actually think the can corporations exercise religion? question is a
red herring. As is the shareholder right-to-sue question. The gist of
the claims in these cases are that the individual plaintiffs, the Hanhs and
the Greens, have had their religious exercise burdened in *their capacities
as
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