Re: Question about the President's executive order on sexual orientation discrimination
It's more than a bit outdated, but I did write an article a few years ago trying to answer the specific question Eugene asks in his post. See Gays, Jews, and Other strangers in a Strange Land. It is about the model or analogy to use in discussing claims for accommodation for religious objectors to same sex marriage. Alan Sent from my iPad On Jul 23, 2014, at 7:44 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Well, hence the “akin.” If we add sexual orientation to the list of proscribed bases for discrimination, we ought to decide which model to use. The race model (no discrimination, period, except in the rare areas where there’s a constitutional right to discriminate)? The sex model (no discrimination except for BFOQs, which involve situations such as sexual privacy)? The religion model (no discrimination except for BFOQs, and when done by religious institutions)? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 23, 2014 2:59 PM To: Law Religion issues for Law Academics Subject: Re: Question about the President's executive order on sexual orientation discrimination ?? It's not either race discrimination or religious discrimination -- it's discrimination on the basis of sexual orientation. On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I agree -- my point was simply that the debate is in part over whether to treat sexual orientation discrimination as akin to race discrimination, or as akin to religious discrimination. Eugene 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 Marty Lederman Sent: Wednesday, July 23, 2014 12:11 PM To: Law Religion issues for Law Academics Subject: Re: Question about the President's executive order on sexual orientation discrimination I don't think that's right, Eugene. Or, more to the point, you are correct that the sec. 204 exemption is not extended to sexual orientation discrimination proscribed in sec. 202 -- but that that's true, as well, for all other forms of forbidden discrimination, and retaliation, that are proscribed in section 202 of the E.O. except the prohibition on religious discrimination. That is to say: The 204 exemption is only a partial exemption from the ban on religious discrimination, allowing certain contractors to prefer coreligionists even if that would otherwise violate the ban on religious discrimination. The exemption - both in 204 and in title VII -- does not give the organization the right, even on religious grounds, to discriminate on the basis of sex, or race, or sexual orientation, or the fact that an employee sued to vindicate one of those protections, etc. See pages 30-32 of http://balkin.blogspot.com/olc.charitablechoice.pdf On Wed, Jul 23, 2014 at 12:51 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: My apologies if I missed this in past list traffic on the subject, but I just wanted to check my understanding: As I read it, under an existing executive order, http://www.dol.gov/ofccp/regs/statutes/eo11246.htm, federal contractors can’t discriminate based on race, color, religion, sex, or national origin, but religious institutions are exempt from the ban on religious discrimination, when it comes to discriminating in favor of “individuals of a particular religion” (sec. 204). The President’s new executive order, http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen, bars federal contractors from discriminating based on sexual orientation and gender identity, but does not extend the sec. 204 exemption to sexual orientation discrimination. One argument against this order is (in effect) that sexual orientation discrimination should be treated more like religious discrimination (in the sense of being exempted when done by a religious institution) than like race discrimination (which is not exempted even when done by a religious institution). Do I have the facts right on this? I’m setting aside here what the right answer ought to be; I just want to make sure I’m not misunderstanding the legal scheme. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
RE: On a different strand of the seamless web
I agree with most of what Marty says here. Commercial corporations do not have dignitary rights such as the right to exercise religion. Human persons have these rights and one can argue as Alito often but not always does that they should not be held to have waived those rights because they elect to do business in a corporate form. Alito’s opinion is strongest when he focuses on real people. But the majority also holds that commercial corporations are persons for RFRA purposes. I do not think it was necessary to reach that conclusion to protect the Greens and Hahns in this case. Alito suggests that this idea of corporate personhood is a fiction, but it is more than that. It is a caricature of human dignity to describe a commercial corporation as having religious exercise rights. I think that is part of what is provoking some of the criticisms directed at Alito’s opinion. Moreover, by holding that corporations are persons for RFRA purposes, Alito makes it much easier to argue that publicly traded corporations are persons for RFRA purposes as well as closely held corporations. Finally, the issue of commercial corporate dignitary rights arises in other contexts involving other rights. I think, for example, as did Chief Justice Rehnquist, that it is absurd to suggest that commercial corporations have dignitary rights that are offended if they are compelled as corporate entities to speak – or to be connected in some modest way with some government mandated message. By talking about commercial corporate religious exercise rights in Hobby Lobby, the Court arguably reinforces the idea of corporate dignitary rights in other circumstances. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, July 07, 2014 8:14 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web On this point, I think we may have at least some degree of consensus: The issue is not corporate v. noncorporate, or for-profit v. nonprofit; it is, instead -- and has been ever since Prince, a case involving individuals acting in the commercial sector for religious, nonprofit reasons -- whether and under what circumstances exemptions should be afforded in the commercial setting. Also, as I have been blogging since the outset of the case, the issue is not the religious exercise of the commercial enterprise -- it's absurd to say that any religion imposes obligations on Hobby Lobby, Inc. -- but instead the religious exercise of those who make decisions on its behalf. I think the Alito opinion is best understood to confirm this conclusion. To be sure, at a couple of points he refers to permitting the RFRA suit to be brought by Hobby Lobby itself. But there's no doubt that it's the Greens and the Hahns, in their capacity as corporate directors, whose religious exercise is at issue: -- Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. -- Congress provided protection for people like the Hahns and Greens -- the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control . . . . Ultimately, the Court holds that protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. I think this formulation doesn't make sense conceptually -- the corporations don't exercise religion. Therefore it would have made much more sense for the Court simply to say that the Greens and Hahns can sue under RFRA. But in any event, there's no doubt that, at least in the for-profit cases, the burden is allegedly placed on the religious exercise of the individuals making decisions on behalf of the companies, rather than on any religious exercise of the companies themselves. -- On Mon, Jul 7, 2014 at 10:40 AM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I suppose I am just echoing a point that Eugene made, but it seems to me that -- while it is certainly possible to imagine settling, at the end of the day, if only for pragmatic reasons, on a legal regime that did not extend religion-related exemptions from generally applicable commercial or economic regulations or did not extend them to for-profit corporations -- the reason or justification for this regime would not be (a) that religious commitments have nothing to say about, and do not often motivate, commercial or economic activity; (b) that business corporations do not have souls; or (c) that only laws regulating the activities of natural persons can burden religious freedom or the exercise of religion. Best wishes, Rick Richard W. Garnett
RE: On a different strand of the seamless web
...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, July 06, 2014 11:10 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I think Chips and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan ___ To post, send message to Religionlaw@lists.ucla.edumailto: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: On a different strand of the seamless web
of alienating the council members. I realize that I'm referring here to council members' behavior outside the council, not their behavior at council meetings; but while this may go to the magnitude of any countervailing interests (such as council members' own free speech and religious freedom rights, as opposed to towns' ability to carry on what appears to be a longstanding tradition for solemnizing the meeting), I think the theoretically coercive pressure is present in all such situations. Indeed, I would think that a person who has a case before the council would be more worried about the blowback from (say) writing a militantly atheist letter to the editor than from not participating in a prayer at a city council meeting. The question is whether these risks are sufficient to actually constitute serious burdens on religious liberty, and I'm inclined to say no. That's especially true for what, according to the Court, appears to be the norm for Town of Greece meetings, in which the minister speaks just to the city council, and doesn't ask audience members to participate in the prayer. But even if the ministers do so ask, I don't think that such a request is, in this context, sufficiently coercive to raise a religious liberty problem, for the reasons the majority mentions. Indeed, many members of many minority religious groups proudly indicate their religious beliefs -- and thus implicitly their not sharing the religious beliefs of the majority -- in their own clothing, hairstyles, and insignia. We expect city councilmembers to treat yarmulke-wearing Jews fairly, even though the yarmulke is constantly visible, including in the very moments that the person is speaking to the council. I think we can reasonably expect (though recognizing that on some occasions people fall short of such expectations) that they will treat fairly those who, some time before their address to the council, did not participate in whatever group prayer was being conducted by the chaplain (especially given that the lack of participation is an action that's considerably less obtrusive than the yarmulke). Perhaps the Justices in the majority and I are mistaken on this score; but it certainly seems to me at least a plausible position, which may explain (to return to the genesis of the thread) why many amicus groups could both oppose actual legal commands as in Hobby Lobby, but not the potential subtle pressure present in Town of Greece. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, July 07, 2014 10:23 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web It would be helpful (at least to me), Eugene, if you provided a more complete explanation of why you think there is no religious liberty issue in Town of Greece. I see Town of Greece this way. Residents go to town board meetings to participate in public comment to try to influence the Board on matters that are very important to the residents petitioning their government. These matters may often have a particularly significant impact on a relatively small number of residents. The Board will often have considerable political discretion in how it resolves the matters in question. At the beginning of the meeting, residents are asked to participate in a religious exercise by a chaplain designated and invited by the city staff under the Board's direction.. They are asked to stand and bow their heads and join in the religious exercise while a member of the clergy prays to G-d in their name (not simply on their behalf). I think the town's policy is intrinsically coercive. Residents will feel pressured and compelled to participate because they will feel that their failure to do so will alienate the very decision-makers they are trying to convince on matters that are important to them. I also think their concerns are not misplaced. In many cases, Board members will be offended and angry if people leave the meeting during the prayer or refuse to stand with the rest of the audience. Government officials often take inappropriate considerations into account in reaching decisions. Indeed, the Constitution is grounded in this basic distrust of government and the need to prevent officials from abusing their power. I think it is always intrinsically coercive when an individual appears before a government official or board exercising discretionary judgment on a matter in order to influence the way the official will decide the matter and the official asks the individual to stand, bow his head and join the official in prayer before hearing the individual's petition. I think this would be true in a court room if the prayer was offered by a judge (or his designated chaplain); it would be true in situations where individuals go to a government
RE: On a different strand of the seamless web
To be clear, I generally agree with the core opinion in Hobby Lobby. I think it would have been a better opinion if it had not reached the conclusion that commercial corporations have protected religious exercise rights for the reasons I stated in my post. I think a non-profit corporation is distinct in important ways from a for-profit corporation. And we usually protect advocacy groups for instrumental reasons as well as dignitary concerns. But I think my earlier comment may hold true here as well. We can probably protect the dignitary rights of the well-meaning people who have banded together to do something good as a non-profit corporation without recognizing that the corporate entity itself has dignitary rights. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Monday, July 07, 2014 11:23 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web Lots of advocacy groups are organized as corporations. It is a very common means of collecting money and engaging is supporting good causes. The fact that it is a corporation should not undermine the idea that a lot of well-meaning people have banded together to do something good. I do not see that it diminishes their sense of doing good things because we use the fiction that the corporation is doing them. Similarly, though I disagree with the decision in Hobby Lobby for many reasons that have been stated on this list, it is not because Alito uses the fiction of the corporation to uphold what the Court decides are the rights of the Greens and the Hahns. To me, to suggest that the decision gives corporations dignitary rights, which admittedly they do not have gets off the point. To me a big obstacle to tolerance arises when we think of rights as dignitary rights so that the failure to recognize becomes tantamount to failing to respect someone's personhood. Tolerance will be scarce if we all start to think that the presence of a religious symbol that is not ours diminishes our dignity, and so I think we should stay well clear of the concept of dignitary rights. Jon On 2014-07-07 12:55, Alan Brownstein wrote: I agree with most of what Marty says here. Commercial corporations do not have dignitary rights such as the right to exercise religion. Human persons have these rights and one can argue as Alito often but not always does that they should not be held to have waived those rights because they elect to do business in a corporate form. Alito’s opinion is strongest when he focuses on real people. But the majority also holds that commercial corporations are persons for RFRA purposes. I do not think it was necessary to reach that conclusion to protect the Greens and Hahns in this case. Alito suggests that this idea of corporate personhood is a fiction, but it is more than that. It is a caricature of human dignity to describe a commercial corporation as having religious exercise rights. I think that is part of what is provoking some of the criticisms directed at Alito’s opinion. Moreover, by holding that corporations are persons for RFRA purposes, Alito makes it much easier to argue that publicly traded corporations are persons for RFRA purposes as well as closely held corporations. Finally, the issue of commercial corporate dignitary rights arises in other contexts involving other rights. I think, for example, as did Chief Justice Rehnquist, that it is absurd to suggest that commercial corporations have dignitary rights that are offended if they are compelled as corporate entities to speak – or to be connected in some modest way with some government mandated message. By talking about commercial corporate religious exercise rights in Hobby Lobby, the Court arguably reinforces the idea of corporate dignitary rights in other circumstances. Alan FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marty Lederman SENT: Monday, July 07, 2014 8:14 AM TO: Law Religion issues for Law Academics SUBJECT: Re: On a different strand of the seamless web On this point, I think we may have at least some degree of consensus: The issue is not corporate v. noncorporate, or for-profit v. nonprofit; it is, instead -- and has been ever since Prince, a case involving individuals acting in the commercial sector for religious, nonprofit reasons -- whether and under what circumstances exemptions should be afforded in the commercial setting. Also, as I have been blogging since the outset of the case, the issue is not the religious exercise of the commercial enterprise -- it's absurd to say that any religion imposes obligations on Hobby Lobby, Inc. -- but instead the religious exercise of those who make decisions on its behalf. I think the Alito opinion
RE: Town of Greece and coercion
As Marty notes, this is a different issue, although it is still an important one. I take Eugene’s most recent post to focus not on whether audience members are being coerced, but whether they are coerced into engaging in religious exercise. There are situations where one stands for secular reasons. We stand when the judge walks into court. We stand to express patriotic commitments when the national anthem is played. We do not stand to respect the institution and practices of town boards. We don’t stand when the board comes in. We don’t stand when the members speak. We don’t stand when citizens speak to the Board during public comment. When we are asked to stand when clergy offer a prayer in our name, if we stand in response to that request we are doing something different than we usually do that reflects the religious nature of what is going on. This is particularly true because standing and other bodily motions are so much a part of religious worship and the act of prayer. In Town of Greece, we have clergy communicating to the audience using the same language they use when they address their congregation in their house of worship. The Court concedes this. The audience is asked to respond in the very much same way they would be asked to respond in a worship service. Many audience members stand, bow their heads and join in the prayer – clearly recognizing that they are being asked to participate in a religious exercise. The prayer is offered in the name of everyone in the audience. I simply do not understand how standing in such circumstances should be seen as anything other than religious exercise. Certainly, if the audience was ordered to stand I would argue they were being compelled to participate in a religious exercise. As Marty’s last comment suggests, if religious minorities were guests in the communities in which they live and were allowed to attend public meetings by virtue of a privilege granted by civil authorities, there might be a reason to view their conduct as having a distinct meaning – as is the case when one visits the house of worship of another faith. And that is the message—that minorities are guests, not respected members of the community-- communicated by the town of Greece in its policies and by the Court in this case. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, July 07, 2014 2:05 PM To: Law Religion issues for Law Academics Subject: Re: Town of Greece and coercion That's a different point, I think. I assume you'd agree that you'd remain standing not only because you think it's the right thing to do (out of respect for the institution), but also because there would be a steep price to pay if you were to sit down. So there certainly is substantial coercion. Now, I agree with you -- it's not coercion to pray, or even to feign praying. But for some people, it would be coercion to do something their religion forbids or strongly discourages -- namely, to act as though you are a willing part of the assemblage in whose name a god is being invoked, without objecting when Jesus is described as our savior who has restored our lives. When I am in someone else's church, of course I do not find it objectionable to stand respectfully. But when standing in the Court or city council of our own government? ___ 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: On a different strand of the seamless web
When people are asking government officials to exercise their discretion in a way that seriously impacts their important interests in a courtroom, at an administrative proceeding, in a government bureaucrat's office, in a classroom , or at the town hall meeting in a small town, I think it is intrinsically coercive for the officials or the chaplain they designate to ask the petitioners to stand, bow their heads and join them in collective prayer. Indeed, I cannot imagine anyone not feeling pressured and coerced in that situation -- just as I believe there is a significant likelihood that a member of the small audience remaining seated while everyone else stands or leaving the room as the prayer begins will have an adverse influence of the officials who are being asked to exercise their discretion. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 06, 2014 11:07 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I’m not a fan of official prayers. But it seems a plausible view of religious liberty that (1) people should have exemptions, when possible, that let them practice their religion, but (2) government institutions should have considerable latitude to include religious speech in their programs – so long as they don’t force people to pray – especially given longstanding American traditions approving of some such inclusion. (In particular, being in the audience while a chaplain is praying strikes me as not that much to “endure,” and I say this as someone who is irreligious; while being required to participate would be wrong, I think, being required to simply be present in the room, or to briefly leave the room for the occasion, seems to me as quite a different matter.) The view I describe here may not be everyone’s view of religious liberty, but it seems to me quite coherent, and has something to recommend it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, July 06, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I very much appreciate Doug's post and his reference to Town of Greece. The Becket Fund, which has very ably represented Hobby Lobby and others in the contraceptive cases, insists that it is committed to religious liberty. (Likewise many on this list.) But in Town of Greece, the Becket Fund filed an amicus brief on the side of the Town; it was aligned not with religious liberty, but rather with the power of government to shove prayer in the face of citizens who wanted to interact with elected officials without having to endure a worship exercise for someone else's faith. If this is our constitutional tradition, as many argued, it is not a tradition of religious liberty. On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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
RE: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?
A few quick thoughts on Marty's second question. At least some of us saw value in religious liberty legislation employing an intermediate level scrutiny standard of review rather than strict scrutiny years ago. I worked with a group trying to get a state religious land use bill adopted in California prior to RLUIPA being enacted by Congress and our bill called for intermediate level scrutiny. I thought the shift to intermediate level scrutiny in a land use bill was a good idea for both political and policy reasons. There are very few land use regulations that can survive either prong of strict scrutiny if it is rigorously applied. But there might be other circumstances outside of the land use context in which I would support more rigorous review. I thought RLUIPA involved very strange bedfellows because a rigorous review of the means employed by prisons seemed more appropriate in these cases since the compelling state interest was typically a foregone conclusion in prison cases. It may be that religious liberty legislation should be generic to some extent -- but not as broad as RFRA or even RLUIPA. In any case, the opponents of our land use bill fought it just as aggressively as they would have fought a strict scrutiny bill -- and succeeded in killing the bill. Some interest groups and legislators seemed to be genuinely concerned about the lack of guidance an intermediate level scrutiny standard provided. And some legislators seemed genuinely befuddled by the move to intermediate level scrutiny (or were putting on a good act to conceal the fact that they opposed the bill for other reasons that they preferred not to disclose.) I still remember a member of the state judiciary committee (someone who I thought was a generally thoughtful legislator) trying to explain to me why he had no problem with religious liberty statutes that applied a minimal reasonableness standard of review and he had supported a state RFRA bill the year before that required strict scrutiny review -- but there was something about intermediate level scrutiny that seemed so problematic to him that he could not support the bill. So Marty is probably right that more thought should have been given to the standard of review to be applied. But determining what would be an appropriate standard of review is not an easy question to answer. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, July 06, 2014 1:36 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless? My thoughts on the longer-term ramifications of the decision. The upshot is that I think it's very important in two respects: (i) the strong affirmation of the holding in Thomas that civil authorities cannot evaluate religious claims that X is a forbidden form of complicity with evil; and, most importantly, as Micah, Rich and Nelson also stress in their Slate piece, (ii) the shocking abandonment of pre-Smith doctrine as a guide to applying RFRA. http://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html As I say in the post, Chip was right 20 years ago: Even if one favors a statutory regime of religious accommodation, and thus supported RFRA -- as I do and I did -- it turns out to have been a huge mistake for Congress to use the words of strict scrutiny, when virtually no one supporting the legislation actually favored such scrutiny. In an age of Scalian textualism, that was a disaster waiting to happen . . . and now, perhaps, it has. I'm curious: Does anyone on the list (i) think the Court was right to say (or at least come very close to holding) that pre-Smith doctrine is inapposite to RFRA; and/or (ii) still think it was a good idea for Congress to use least-restrictive-means language in RFRA? ___ 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 Question
I think Steve is right that in the there is a difference between challenging the legitimacy or religiosity of plaintiffs beliefs and holding that as a legal matter at some point we will draw the line on extending the protection provided to beliefs that are grounded in complicity with other people's conduct. Ginsburg makes this point explicitly in her dissent. Alito pretty much ignores it. Suppose plaintiff argued that according to their religious beliefs about complicity they could not contribute to an insurance plan that covered treatments provided by hospitals or clinics that also provided abortion services. The only providers covered by a plan they could conscientiously support would be those who personally and institutionally refused to provide abortion services. That is more attenuated than Hobby Lobby's claim, but it is grounded on the same foundation of complicity. The question to me is whether the correct place to take this attenuation into account is in the determination of substantial burden or whether it should be considered in evaluating the government's compelling state interest and whether there are less restrictive means available to further the state's goals. The downside of focusing on attenuation in deciding whether there is a substantial burden is that courts may be more influenced by their doubts as to the legitimacy or religiosity of belief when they are asked to evaluate the substantiality of the burden and using substantiality of the burden to control attenuation may result in some cases where the government wins even though it's interest is very low and should not be considered weighty enough to justify even an attenuated burden on religious exercise. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, July 01, 2014 9:32 AM To: Law Religion Law List Subject: Re: Hobby Lobby Question No. I do not reject the legitimacy nor the religiousity of the plaintiff's beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor legitimacy of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control - it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party - the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case - where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation - we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there
RE: Hobby Lobby Question
Eugene read my mind and wrote exactly what I was going to write. Maybe gross underinclusion isn't entirely irrelevant, but standing alone it has little bearing on whether the state's interest is compelling or not for religious liberty exemption purposes. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, July 01, 2014 8:09 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question The Court also said that there’s a compelling government interest in preventing race discrimination in employment, even though there are literally millions of people who are exempted from Title VII (since they work for employers who have fewer than 15 employees). Is such gross underinclusion relevant to the issue of compelling interest? If so, does it keep the interest from being compelling, and entitle religiously objecting employers with more than 15 employees to an exemption from Title VII? The Court has also said that there’s a compelling government interest in collecting federal income taxes, even though there are literally millions of people who pay no net federal income tax. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to paying certain kinds of taxes are entitled to an exemption from federal text law? The Court has also rejected a claim of religious exemption from the draft (for people who oppose only unjust wars, and therefore aren’t entitled to a statutory exemption), and has been understood as saying that there’s a compelling government interest in raising armies, even though there are literally tens of millions of people who aren’t eligible for the draft. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to unjust wars really are entitled to a draft exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, July 01, 2014 5:04 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRNhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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 Question
I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Two more Hobby Lobby posts
One issue underlying Marty's very effectively presented argument about the absence of an employer mandate is what counts as the kind of substantial burden that warrants legal attention. Marty suggests that plaintiffs in Hobby Lobby need specific allegations and ultimately some direct proof to demonstrate adverse labor consequences or other economic costs that would result from Hobby Lobby dropping health care coverage for its employees. It may be however that these costs and consequences will be difficult to determine with any degree of certainty for the foreseeable future. How then should a court evaluate a religious liberty claim in light of this kind of indeterminacy? One possibility is to insist on proof by a preponderance of the evidence that Hobby Lobby's current employees would leave Hobby Lobby for other jobs and/or that prospective employees would be less likely to seek employment from Hobby Lobby. Another possibility is ask whether a reasonable employer would foresee serious labor problems or other economic costs if it dropped current health care coverage for its employees. This argument suggests that risk of harm can constitute a substantial burden. There is certainly language in the Town of Greece plurality opinion which suggests that substantial, specific evidence is necessary to demonstrate a legally cognizable burden on religious liberty. But there is also language that suggests that the Court might ask what a reasonable employer might foresee to be the consequences of dropping health care coverage. If the Court adopts that approach, the controlling question would be what understanding of social reality would the Court utilize in determining the reasonableness of Hobby Lobby's concerns. As Marty's post implies, in the real world there may be legitimate arguments to be raised and evaluated on both sides of this question. If Town of Greece is any guide, however, we should expect the Court to imagine a social reality which enables it to reach a conclusion consistent with the ideological predispositions of the Justices -- without regard to whether that imaginary world bears any resemblance to the world in which people actually live, make business decision, and exercise religion. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, June 15, 2014 2:04 PM To: Law Religion issues for Law Academics Subject: Two more Hobby Lobby posts I'm under no illusion that such things could possibly have any influence on the Court at this late date (majority opinions having been in circulation for at least two weeks now), but thought it might be worth posting two further entries on Hobby Lobby, in anticipation of the decision: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xiv-how-this-weeks.html http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html The first is more about the Sixth Circuit's nonprofit decision from earlier this week; the second is about my pet there is no employer mandate argument -- how the Justices treated it at oral argument, and how a new SP Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful. ___ 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: Two more Hobby Lobby posts
I'm not sure that I understand your argument, Marty. Let me play it out to see if I have it right. As you suggest an employer might be wary of dropping the health care plans because of the uncertainties and potential risks of doing so. Let's say that two employers have the same religious objections to continuing the health care coverage if it includes the problematic contraceptives and fear the same risks of economic consequences. Let's assume that if push comes to shove, one of them would subordinate his religious convictions to alleviate these risks. This employer would keep the plan and violate his conscience.The other employer would drop the health plans come what may to stay faithful to his convictions. (Of course, in the real world it isn't always easy to predict what someone will do when push comes to shove -- but let's assume that we know.) Both employers sue. Are you suggesting that these employers claims should be evaluated differently? The employer who would sacrifice his convictions in order to avoid the risk of economic consequences is coerced by the risk burden he confronts -- but because he sells his convictions out so cheaply his religious liberty claim does not justify providing him an accommodation that causes harm to third parties. Is that your argument? And then what happens to the other employer who will drop the health plan even though he believes doing so may well impose significant costs on his business. Does his claim succeed? Or are you suggesting that because this employer will accept such burdens in order to remain true to his religious convictions, his claim should also be denied because the burden on his faith was not sufficient to force him to violate his conscience. I think I'm missing something here, but I'm not sure what it is. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, June 15, 2014 3:19 PM To: Law Religion issues for Law Academics Subject: Re: Two more Hobby Lobby posts Thanks for that extremely thoughtful response, Alan. I think you're onto something important: I imagine that even if the SP report is correct, and many employers will drop their health care plans in the coming years, there is a definite first mover phenomenon at work -- that is to say, the main reason any employer would be reluctant to drop its plan just now is precisely that there are too many uncertainties and it wishes to avoid any risks, and is therefore waiting to see what, e.g., its competitors will do. That is entirely understandable employer behavior. The question, however, is why the female employees of that employer should suffer the consequences if the employer opts not to take that chance just now, but opts instead to wait-and-see. If the mere chance of some marginal disadvantage in the relevant labor market -- a disadvantage, I should add, that may very well not result in any significant competitive disadvantage, assuming (as I think is probably fair) that the labor pool for arts supplies stores is fairly elastic -- is more important to the Greens than their alleged complicity with employees' use of contraception, then it's not obvious to me why the state should afford them an exemption that will redound to the significant detriment of their employees. On Sun, Jun 15, 2014 at 5:59 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: One issue underlying Marty's very effectively presented argument about the absence of an employer mandate is what counts as the kind of substantial burden that warrants legal attention. Marty suggests that plaintiffs in Hobby Lobby need specific allegations and ultimately some direct proof to demonstrate adverse labor consequences or other economic costs that would result from Hobby Lobby dropping health care coverage for its employees. It may be however that these costs and consequences will be difficult to determine with any degree of certainty for the foreseeable future. How then should a court evaluate a religious liberty claim in light of this kind of indeterminacy? One possibility is to insist on proof by a preponderance of the evidence that Hobby Lobby's current employees would leave Hobby Lobby for other jobs and/or that prospective employees would be less likely to seek employment from Hobby Lobby. Another possibility is ask whether a reasonable employer would foresee serious labor problems or other economic costs if it dropped current health care coverage for its employees. This argument suggests that risk of harm can constitute a substantial burden. There is certainly language in the Town of Greece plurality opinion which suggests that substantial, specific evidence is necessary to demonstrate a legally cognizable burden on religious liberty. But there is also language that suggests that the Court might ask
RE: Divisiveness
Eugene is certainly correct that sometimes a constitutional decision intended to take an issue off of the table of political deliberation and avoid political/religious divisions will have counterproductive consequences. I tend to see this as an unavoidable cost of deciding constitutional cases at least in part on some understanding of social reality and some prediction of how the decision will influence human behavior. Courts will make mistakes in this regard -- and they will make mistakes in many areas of constitutional law that extend far beyond the religion clauses. If we focus on the religion clauses, however, I think constitutional decisions do mitigate political/religious divisions in many cases. For example, they certainly influence the level of decision making at which political/religious mobilization occurs. Choosing new supreme court justices is a matter of national politics, not local politics. There is one sense in which political/religious divisions may reduced if church-state issues are returned to the table of political deliberation. Subjecting religious exercise and the promotion of religion to political control reduces religious integration. More people will choose to live in communities in which they are the majority or a very well represented minority. In religiously homogenous communities, there is less need to mobilize along religious lines. I think there are other serious problems with this kind of fragmented, dis-integrated society along religious lines. But in many communities, the absence of minorities will reduce political/religious disputes. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, June 09, 2014 8:10 AM To: Law Religion issues for Law Academics Subject: RE: Divisiveness 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 contested interpretation of constitutional language, there is the possibility of using political processes to select Justices who will take a different view of the matter. Indeed, my sense is that some of the most prominent political divisions along religious lines have come with regard to decisions that aimed to take things off the table, but have failed to do so. Roe v. Wade is the classic example, though in some measure the various government speech decisions, from the school prayer case onwards, have had that effect as well. Now it may well be that other decisions have indeed settled matters in considerable measure, and thus diminished religious groups’ political mobilization as religious groups. But my guess is that it’s often not easy to predict which creates more mobilization of religious groups as religious groups: a particular executive or legislative policy decision, or a Supreme Court decision reversing that policy decision. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, June 08, 2014 7:37 PM To: Law Religion issues for Law Academics Subject: RE: Divisiveness If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein ___ 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: Divisiveness
If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law Religion issues for Law Academics Subject: Divisiveness I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as divisive. Government religious speech may be seen as divisive, because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential divisiveness of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one thinks a decision is sound, it's easy to view those who disagree as just unreasonable, so that their feelings of alienation don't really count (since they deserved to lose, and are now just being sore losers). Of course, Eugene Tom Berg writes: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) ___ 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/Ellen Katz
And, of course, the government could pick up the additional costs to the insurer. That would spread the costs of protecting religious liberty so that it would not fall exclusively (and heavily) on the employees of religiously exempt employers. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Sunday, June 08, 2014 5:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Yes, the insurer-pays accommodation depends on contraception being less costly on net. But since the administration has asserted that such is the case (in support of both the mandate itself and the accommodation), it seems to me the Court can and should proceed on that basis. If the facts start turning out noticeably different, that might affect the whole politics of the issue (who knows?). - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 6:39 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I agree with Tom that divisiveness arguments are best shied away from. This was a favorite of Brennan in the school funding cases, and I never understood why those who supported funding on the basis that they could not otherwise enjoy their presumptive constitutional right to send their children to religious schools (Pierce) weren't as upset with the Court as, presumably, secularists would have been by knowing that their tax dollars were going to religious schools. The insurer pays accommodation depends, does it not, on the brute fact that contraception, when all is said and done, is less costly than pregnancy. What if it were more costly? sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 6:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as
RE: case book needed
It is intended more as a supplement to a domestic law course rather than the text for a comparative law course, but Leslie Jacobs and I co-authored Global Issues in Freedom of Speech and Religion in 2009. About 160 pages are law and religion materials. West is the publisher. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor Sent: Wednesday, May 07, 2014 6:32 PM To: Law Religion issues for Law Academics Subject: RE: case book needed Cole Durham and Brett Scharffs have a book from Aspen called Law and Religion: National, International, and Comparative Perspectives. They have a lot of material on the EU, though the book is broader in scope than the US and EU. It might fit your needs. John Taylor WVU College of Law From: religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edumailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu [mailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Wednesday, May 07, 2014 8:10 PM To: Law Religion issues for Law Academics Subject: case book needed Does anyone know if there is a casebook out there -- or has anyone taught and can share materials -- for a course on comparative religion and law. I have to teach one this summer -- comparing US to EU law (and if I can other countries). * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * ___ 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: case book needed
I’m sure West would be happy to send you a complimentary copy – even on speculation. Just ask them. (By the way, the book is paperback and not very expensive.) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Monday, May 12, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: case book needed This is a very short course -- one credit -- 1 hour a day, 4 days a week, for 3 weeks (in Lyon). Is there any chance you could send me a PDF or text version of your 160 pages so I can look at them. I could not assign the whole book for this short course but would love to borrow a case or two or three if that were possible. Or, perhaps you can have west send me the book. I might use it in the future if I teach it as a real course some time. Paul Finkelman 48 Thorndale Road Slingerlands, NY 12159 From: Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Monday, May 12, 2014 12:37 PM Subject: RE: case book needed It is intended more as a supplement to a domestic law course rather than the text for a comparative law course, but Leslie Jacobs and I co-authored Global Issues in Freedom of Speech and Religion in 2009. About 160 pages are law and religion materials. West is the publisher. Alan Brownstein From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor Sent: Wednesday, May 07, 2014 6:32 PM To: Law Religion issues for Law Academics Subject: RE: case book needed Cole Durham and Brett Scharffs have a book from Aspen called “Law and Religion: National, International, and Comparative Perspectives.” They have a lot of material on the EU, though the book is broader in scope than the US and EU. It might fit your needs. John Taylor WVU College of Law From: religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edumailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu [mailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Wednesday, May 07, 2014 8:10 PM To: Law Religion issues for Law Academics Subject: case book needed Does anyone know if there is a casebook out there -- or has anyone taught and can share materials -- for a course on comparative religion and law. I have to teach one this summer -- comparing US to EU law (and if I can other countries). * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.
My apologies
Whoops. My apologies to the list. I intended the prior e-mail to go to Paul directly, not to the list. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, May 12, 2014 9:58 AM To: Paul Finkelman; Law Religion issues for Law Academics Subject: RE: case book needed I’m sure West would be happy to send you a complimentary copy – even on speculation. Just ask them. (By the way, the book is paperback and not very expensive.) From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Monday, May 12, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: case book needed This is a very short course -- one credit -- 1 hour a day, 4 days a week, for 3 weeks (in Lyon). Is there any chance you could send me a PDF or text version of your 160 pages so I can look at them. I could not assign the whole book for this short course but would love to borrow a case or two or three if that were possible. Or, perhaps you can have west send me the book. I might use it in the future if I teach it as a real course some time. Paul Finkelman 48 Thorndale Road Slingerlands, NY 12159 From: Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Monday, May 12, 2014 12:37 PM Subject: RE: case book needed It is intended more as a supplement to a domestic law course rather than the text for a comparative law course, but Leslie Jacobs and I co-authored Global Issues in Freedom of Speech and Religion in 2009. About 160 pages are law and religion materials. West is the publisher. Alan Brownstein From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor Sent: Wednesday, May 07, 2014 6:32 PM To: Law Religion issues for Law Academics Subject: RE: case book needed Cole Durham and Brett Scharffs have a book from Aspen called “Law and Religion: National, International, and Comparative Perspectives.” They have a lot of material on the EU, though the book is broader in scope than the US and EU. It might fit your needs. John Taylor WVU College of Law From: religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edumailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu [mailto:religionlaw-bounces+john.taylor=mail.wvu@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Wednesday, May 07, 2014 8:10 PM To: Law Religion issues for Law Academics Subject: case book needed Does anyone know if there is a casebook out there -- or has anyone taught and can share materials -- for a course on comparative religion and law. I have to teach one this summer -- comparing US to EU law (and if I can other countries). * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
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 the
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.
RE: letter opposing Mississippi RFRA
Well, of course, one of the reasons that RFRA was originally supported by a broad coalition and RLUIPA received broad support as well was that not everyone thought that religious accommodations on a case-by-case basis worked reasonably well. Obtaining accommodations politically case-by-case required the expenditure of enormous time, effort, and political capital - and even when those requesting accommodations were able to marshal such efforts, some requested accommodations were denied for reasons that at their best and most charitably could only be described as completely unpersuasive. And a political case-by-case approach maximizes the opportunity for religious favoritism to influence decision-making. I understand the concerns expressed here and elsewhere about these new RFRA like laws and the motivations of their sponsors. But there were problems that justified support for more general religious liberty statutes 20 years ago and it is not at all clear to me that those problems have disappeared. It is one thing to argue that the cost/risk of protecting discrimination in the for profit commercial sector outweighs the religious liberty benefits of RFRA like laws in cases that do not involve civil rights laws. It is another thing to argue that those benefits do not exist or, from the flip side of the coin, that there would not be any costs if all general religious liberty statutes were repealed. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 11:23 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are clearly meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting for them? ___ 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: letter opposing Mississippi RFRA
compelled her into having that blood transfusion despite her religious objections. (It’s not clear to me why the DA insisted on this course of action—this isn’t addressed in the case, but she was apparently conscious and able to communicate, and any out-of-court statement identifying the daughter as the shooter would have been admissible under both the Mississippi Rules of Evidence and the federal Constitution.) Probably no one on the listserv believes what that Jehovah's Witness believed, but we all can recognize the extraordinary psychic distress she was put through. (And still is in, presumably, if she is still alive—she apparently really did believe she was unalterably doomed to hell because of what the state did to her.) There are a lot of state RFRA cases that pull at heartstrings. The modern fights over sexual morality get a lot of airplay. But they represent a sliver of the cases. Liberals have always been sympathetic to the plight of minorities, and the larger context here is that religious minorities will often have a very difficult time without legislative exemptions in a world run pursuant to Employment Division v. Smith. (And also, to respond overly briefly to something Hillel Levin said earlier, I think the one-off nature of these issues illustrates just how hard it would be to handle this with case-by-case exemptions passed in advance.) I have mixed feelings in Hobby Lobby; I didn’t sign a brief on either side. But if the plaintiffs’ claims are decisively rejected, one virtue will be that the discussion might focus back to these other kinds of claims. Best, Chris From: Alan Brownstein aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, March 11, 2014 3:47:04 PM Subject: RE: letter opposing Mississippi RFRA Well, of course, one of the reasons that RFRA was originally supported by a broad coalition and RLUIPA received broad support as well was that not everyone thought that religious accommodations on a case-by-case basis worked reasonably well. Obtaining accommodations politically case-by-case required the expenditure of enormous time, effort, and political capital – and even when those requesting accommodations were able to marshal such efforts, some requested accommodations were denied for reasons that at their best and most charitably could only be described as completely unpersuasive. And a political case-by-case approach maximizes the opportunity for religious favoritism to influence decision-making. I understand the concerns expressed here and elsewhere about these new RFRA like laws and the motivations of their sponsors. But there were problems that justified support for more general religious liberty statutes 20 years ago and it is not at all clear to me that those problems have disappeared. It is one thing to argue that the cost/risk of protecting discrimination in the for profit commercial sector outweighs the religious liberty benefits of RFRA like laws in cases that do not involve civil rights laws. It is another thing to argue that those benefits do not exist or, from the flip side of the coin, that there would not be any costs if all general religious liberty statutes were repealed. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 11:23 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are clearly meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting for them? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: From the list custodian
Thanks, Eugene! I think your advice is well taken. I certainly intend to spend more time breathing deeply over the next few days since I don't think I can contribute anything thoughtful or useful to the list given the current tenor of the discussion. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, March 01, 2014 3:10 PM To: Law Religion issues for Law Academics Subject: From the list custodian Folks: I think we’ve been departing in recent days from the politeness and thoughtfulness that has generally made this discussion list especially valuable. Personal attacks are unlikely to persuade anyone -- even bystanders -- and are just likely to poison the well for future debate. Let’s all take some deep breaths, and refocus ourselves on substantive discussion of the legal issues. Eugene The list custodian ___ 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: bigotry and sincere religious belief
Chip, I think your post about bigotry v. sincere religious beliefs does raise core issues in a thoughtful way and I intend to respond. But other commitments may delay my doing so for a while. I don't want you to think that your post doesn't merit a response - it does - or that other list members have nothing to contribute to the issues you raise - I do. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 9:15 AM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai tzn...@gmail.commailto:tzn...@gmail.com wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally
RE: bigotry and sincere religious belief
Let me try to respond to Chip's post. He asks two basic questions. (1) Why should we be any more willing to accommodate religious objectors to same-sex marriage than we are willing to accommodate religious objectors to inter-racial marriages. (Or more broadly why accommodate discrimination against gays and lesbians any more than we would accommodate discrimination against African-Americans.) (2) Why should we try to distinguish between sincere religious objectors to same-sex marriage and bigots since it is probably impossible to do that accurately, mistakes will be made, and, in any case, the discrimination causes real harm to the victims of discrimination in both cases? These are good questions, and they are hard questions that are not easy to answer. I do not dispute that there are strong arguments opposing my position on these issues. But I think my take on this issues is a serious position as well. First, let me make clear that I think Chip and I agree on some important points. Discrimination against gays and lesbians and racial discrimination is seriously hurtful. As Chip says, the refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). I also think he recognizes that there are some sincere religious individuals who oppose same-sex marriage and are not bigots or phobes. Finally, my guess is that he and I would probably agree on 90% or more of the situations in which a conflict might arise as to whether or not to accommodate religious objectors to same-sex marriage -- and we would agree that an accommodation is not warranted. On to Chip's questions. As to his first question, I do think race discrimination is a unique evil for American society and for our legal system. I think slavery was a horror that cannot be analogized easily to other wrongs -- terrible as the other wrongs may be. I think the system of violent subjugation of African-Americans for the following 100 years was staggering in its evil. And racism is not something that our society seems capable of putting behind us. It seems to have infected the marrow of our culture and society. I have been delighted with the speed with which American culture seems to be changing with regard to gay and lesbian rights and legal recognition of same sex marriages. I feel no such optimism with regard to the role played by racism in our society. Also, I do not think that race discrimination is the only model or analogy for thinking about civil rights laws and anti-discrimination principles. We prohibit discrimination against women, against religious minorities, against the disabled and the aged. Much of that discrimination has been and is invidious. It is hurtful in all the ways that discrimination against gays and lesbians is hurtful. Quite a bit of it has been justified by religious beliefs and some of it still is. When a religious nonprofit refuses to hire a Jew or a Moslem, they may be doing so based on sincere beliefs about the need for, and obligations requiring, religious homogeneity in the work environment. Or they may be prejudiced. Either way, being denied a job you need that you are qualified to perform because of your religion is a hurtful experience. Despite the harm caused by such discrimination, I think both as a constitutional matter and a statutory matter, we are willing to allow more exceptions, more accommodations of one kind or another, with regard to these other forms of discrimination than we are with race. So yes I think race is different. I also do not think I am suggesting that discrimination against gays and lesbians does not involve serious harm when I suggest that we should treat it as seriously as we treat discrimination against Jews and Moslems. Yet we accommodate discrimination on the basis of religion by religious nonprofits even for jobs that do not appear to have any serious religious dimension to them. And I do not believe that this discrimination is cost free. With regard to discrimination on grounds other than race, and in particular with regard to discrimination on the basis of religion, I think we accommodate discriminatory behavior on the part of religious individuals in some limited circumstances defined categorically. We don't do the kind of case by case sorting that Chip rejects as futile. Jim Oleske in a recent post wrote about how we accomplished that kind of sorting by separating the world into different spheres. Nonprofit religious organizations could discriminate but commercial enterprises were forbidden to do so. I think what we are trying to do is identify categories of circumstances where accommodations may be appropriate because the likelihood of sincere religious beliefs as opposed to bigotry is higher and the harm caused to the victims of discrimination is lower. I'm not sure that the nonprofit/for profit distinction is adequate to do this job. Nonprofit organizations can
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have been struck by the intensity of the blowback against both bills, but particularly the reaction to the Arizona bill. I think there are several possible rationales for the power of the reaction. The breadth of the bill is one factor. Another factor is that the business community is increasingly viewing these kinds of laws as having a significant downside and no upside. Economic forces may do more to advance marriage equality in red states than anything else. I think a final factor is that legislation providing some accommodations for religious objectors to same-sex marriage can be justified by its supporters as a “live and let live” solution to conflicting views when these accommodations are proposed at the same time the legislature is considering recognizing same-sex marriages. The Kansas and Arizona bills are more like “live and let die” laws. These states have made it clear that they do not respect the liberty and equality interests of same-sex couples. In this context, the laws cannot be justified under a broader principle of attempting to reconcile conflicting interests. The laws seem to suggest that only certain people count in these states and deserve respect for their autonomy rights. For many people, that is a problematic message. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Wednesday, February 26, 2014 9:35 AM To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill – at least what I’ve seen – has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. 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 ___ 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: Kansas/Arizona statutes
Thanks for your e-mail, Kevin. I do appreciate your point and I worry about it. If freedom of conscience or religious liberty becomes associated in people's minds exclusively with one set of beliefs, there is a risk that people who hold other views will begin to undervalue the right. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of tznkai Sent: Wednesday, February 26, 2014 10:37 AM To: Law Religion issues for Law Academics Subject: Re: Kansas/Arizona statutes (Not on list) Prof. Brownstein I've been following this thread with considerable interest. Something you might consider is the first post-Smith political generation is coming into their own, as well as a generation of young people whose only experiences with religion has been as hide bound reactionaries, instead of say, the Christianity v. Christianity fight in the civil rights movement. (Not endorsing these viewpoints, just observing them) -Kevin Chen, Esq. On Feb 26, 2014 1:03 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: I have been struck by the intensity of the blowback against both bills, but particularly the reaction to the Arizona bill. I think there are several possible rationales for the power of the reaction. The breadth of the bill is one factor. Another factor is that the business community is increasingly viewing these kinds of laws as having a significant downside and no upside. Economic forces may do more to advance marriage equality in red states than anything else. I think a final factor is that legislation providing some accommodations for religious objectors to same-sex marriage can be justified by its supporters as a live and let live solution to conflicting views when these accommodations are proposed at the same time the legislature is considering recognizing same-sex marriages. The Kansas and Arizona bills are more like live and let die laws. These states have made it clear that they do not respect the liberty and equality interests of same-sex couples. In this context, the laws cannot be justified under a broader principle of attempting to reconcile conflicting interests. The laws seem to suggest that only certain people count in these states and deserve respect for their autonomy rights. For many people, that is a problematic message. Alan 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 Conkle, Daniel O. Sent: Wednesday, February 26, 2014 9:35 AM To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill - at least what I've seen - has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331tel:%28812%29%20855-4331 fax (812) 855-0555tel:%28812%29%20855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu ___ To post, send message to Religionlaw@lists.ucla.edumailto: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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
At least under the New Mexico Supreme Court’s analysis in Elane Photography, I believe the discrimination claim would be rejected. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, February 26, 2014 4:20 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
List members who have not had the chance to read Tom and Doug’s brief in Windsor/Perry should do so. It is a powerful statement in support of same-sex couples right to marry while urging some accommodation of religious objectors who consider same-sex marriage to be unacceptable for religious reasons. One need not agree with the specific accommodations Tom and Doug endorse (and I don’t ) to recognize that they see great value in people being able to live their lives authentically and with integrity. Reading some of the posts in this thread, I am not sure that for some list members, there is any empathy for, or commitment to, religious people being able to be true to their identity, faith and conscience. Am I correct that some list members are arguing that religious identity, faith and conscience should be assigned no weight in balancing religious accommodations against majority preferences or the costs accommodations may impose on others. Are religious liberty and freedom of conscience political goods we will only support if they are entirely without cost? Let me be more specific. Not that long ago, some people in San Francisco considered placing on the ballot an initiative that would ban male circumcision in the City. The initiative did not appear on the ballot. If, however, the state of California passed such a prohibition, would it be insidious or beyond the pale to consider exempting observant Jews (and Moslems) from this requirement? The alternatives to accommodation are apparent. We can demand under threat of sanction that observant Jews adjust to this prohibition by rejecting a command from G-d that Jews have obeyed for 4000 years. Or observant Jewish families planning on having children can go elsewhere and move on to some other state. Shouldn’t accommodation at least be worth considering in this circumstance? And if we assign some weight to religious beliefs in this case, shouldn’t we at least acknowledge the burden other laws impose on people whose beliefs conflict with government mandates? Or are people really arguing that religious identity, faith, and conscience should count for nothing in the face of a law that burdens religious exercise? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, February 26, 2014 2:36 PM To: 'Law Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Following up on this: gays and lesbians have been told (wrongly) for years to change their orientation or just act on it in private, disregarding their interest in living lives of integrity. It’s therefore ironic if, in the service of gay rights, society simply tells the religious believer to change her belief or—more common, I suppose—just confine it to church, and act in the business world in ways s/he sincerely and conscientiously concludes are inconsistent with the belief. That’s why Doug and I said in our Windsor/Perry brief (supporting same-sex marriage rights and religious exemptions) that there are parallels between gay-rights claims and religious-objector claims. I’m not claiming that the ability to change or compartmentalize these two things is exactly the same. But to dismiss the religious believer’s dilemma altogether shows a lack of sympathy—no concern for his or her interest in living a life of integrity—and ignores one of the central reasons we protect religious freedom in the first place. Broad exemptions in the commercial sphere would expose gays and lesbians to disadvantage based on a central aspect of identity that they should not be asked to change or hide. But if we can craft exemptions where the religious business owner’s integrity interest is at its highest (sole-proprietor or small businesses where the owner is providing personal services focused directly on the marriage) and the effect on married couples is not real loss of access to services (the aim of the size limit and the hardship exception), then it seems to me the religious believer’s integrity interest is stronger in the balance. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice ___ 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
RE: It must not be a compelling interest since there are so many exceptions
Just to be clear, my discussion in earlier posts about government funding contraceptive insurance coverage for the employees of religiously exempt employers is based on the argument that such an arrangement may constitute a less restrictive alternative that furthers the government's compelling state interests without substantially burdening religious liberty. I have no doubts that the government's asserted interests in Hobby Lobby are compelling state interests under any reasonable understanding of that term. The idea that public health concerns (or other obviously important government goals including saving lives for that matter) do not constitute compelling state interests if the government's actions in furthering them can be characterized as underinclusive in some form or fashion seems completely wrong headed. Recognizing that Hobby Lobby may have a valid RFRA claim does not require accepting Derek's argument below. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 21, 2014 3:20 PM To: Law Religion issues for Law Academics Subject: It must not be a compelling interest since there are so many exceptions Derek writes: The briefs convincingly demonstrates that this doesn't qualify as a compelling government interest because the regulatory regime established by the government already allows for large numbers of women not to get free abortifacients /contraceptives from their employers. Convincing to whom? The claim is spurious. See http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html On Fri, Feb 21, 2014 at 5:48 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: I don't find the proposition to be particularly comforting that religious liberty concerns must take a back seat in areas highly regulated by the government as opposed to lightly regulated ones.Instead, it seems to me that the need to vigorously protect free exercise of religion is of greater importance in those areas of life where government intrusion is higher. More fundamentally, the view that the free exercise of religion matters less when the government has already occupied the regulatory space raises the question of where does the right to free exercise of religion come from at all.Is the protection of religious exercise just a gift of a positivist state that sees some utilitarian benefit in providing some of its citizens a right to practice religion? (E.g., wouldn't it be quaint if our government allowed a few Mennonites-so long as they don't take their faith too seriously).Or does the government protect the free exercise of religion because it recognizes that following one's conscience in religious matters is something that is in the very nature of its people and is therefore a fundamental right that exists in all people prior to the state even existing? Under the first view, what the state gives, the state can take away. Under the second view, the power of the state is necessarily constrained by the existence of fundamental rights that inhere in the very nature of the people. Yes, the government can limit exercise of religion in the second view, but only where it truly satisfies strict scrutiny; if the government exercises its power more broadly to limit free exercise of religion, it loses its legitimacy by denying its people the ability to live and act in accordance with something that makes them human in the first place-the ability to live and act in accordance with their religiously informed conscience. On the substance, I would also disagree that Hobby Lobby and Conestoga have ignored the so-called Caldor / Establishment Clause problem of needing to avoid harm to 3rd parties.To the contrary, the briefs deal extensively with whether the alleged harm to 3rd parties-i.e., increasing the number of women who won't get free abortifacients /contraceptives--qualifies as a compelling government interest. The briefs convincingly demonstrates that this doesn't qualify as a compelling government interest because the regulatory regime established by the government already allows for large numbers of women not to get free abortifacients /contraceptives from their employers (i.e., women in grandfathered plans, plans with employers who employ less than 50 employees, and plans with those employers the Administration (grudgingly) conceded were sufficiently religious). Where so many exceptions to this interest already exist, this doesn't rise to the level of a compelling government interest. Moreover, the fact that other exceptions are given for non-religious reasons means that this is not a case in which an exception has been given for uniquely religious reasons, thereby further avoiding an Establishment Clause concern. Grace and peace to you, Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language
RE: recommended Hobby Lobby posts
With regard to Jim's post (and Chip and Bob's piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob's argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn't require an interpretation of RFRA that is as limiting as the one that they propose. Aren't there harms that are more than de minimis, yet not sufficiently costly to justify the substantial burdening of religious liberty? Second, exactly why should the scope of RFRA be so drastically constrained in employment cases? What distinguishes these kinds of cases from other accommodation cases - many of which will also impose some costs on third parties, the state, or the general public? Third, many commentators have argued that the cost of accommodating Hobby Lobby should be construed to be the cost of the government setting up an alternative insurance framework for providing contraceptive coverage for the employees of religiously exempt employers. The literal cost of doing so may not be very high. There are ways of conditioning the granting of any accommodation to offset whatever those costs may be to a considerable extent. Providing insurance coverage would not require administratively complex, individualized interventions by the government. And, for many of us, the government providing health care coverage is the most desirable and efficient way of extending health insurance coverage in our society in the first place. The use of employers as a conduit for providing coverage provides few if any advantages in comparison to a government insurance program. So if we are focusing on the cost of accommodating Hobby Lobby, why isn't this the cost we should be evaluating. Typically in other rights contexts, we focus on the cost of mitigation, not the potential harm of unmitigated consequences. Thus, if an unpopular speaker wants to speak in a location where his message is likely to poorly received, the government cannot silence the speaker on the grounds that allowing him to speak would cause disorder and damage to property or persons. Instead, the harm would be the cost of hiring sufficient police and public safety personnel to maintain order at the event. Typically, except in the most egregious cases, the government does not have a compelling state interest in avoiding those financial costs of mitigation. Alan On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim ___ 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: recommended Hobby Lobby posts
to be a regulation of employer-employee relations, like the employment discrimination provisions of Title VII or various labor law statutes. I think the Affordable Care Act is a health insurance law, not an employer-employee relations law. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans whether they are employed or not. Employers are used as a conduit to achieve that health insurance objective for some Americans-- but that is incidental to the ultimate purpose of the legislation which is aimed at all Americans, not just employees. If the contraceptive mandate is viewed as a part of the massive government involvement in arranging for the provision of affordable health care, at least some of which -- through the expansion of Medicaid -- involves the government providing health care coverage directly, it doesn't seem particularly assymetrical to me to suggest that the government itself should shoulder the burden of providing contraceptive insurance coverage to the employees of religious employers. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, February 20, 2014 3:44 PM To: Law Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of de minimis as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than de minimis. But that's not the law.) Chip On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: With regard to Jim’s post (and Chip and Bob’s piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob’s argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn’t require an interpretation of RFRA that is as limiting as the one that they propose. Aren’t there harms that are more than de minimis, yet not sufficiently costly to justify the substantial burdening of religious liberty
RE: Notre Dame-- where's the complicit participation? Sincerity
I thought there was a great deal of merit in Mark Scarberry's earlier post and I appreciate the distinctions that Marty draws between lack of sincerity and lack of depth and substantiality of religious belief. I have three thoughts. First, since I know very little about Catholic theology or the institutional structure of Catholic institutions such as Notre Dame, let me pose a hypothetical based on religious beliefs and institutional frameworks with which I am more familiar. Let us assume that a small group of Reform Jews lives in a community. Assume further that most of them do not keep Kosher kitchens in their homes. Because they are too small a group to develop a house of worship, they meet in people's homes for services, notwithstanding the lack of Kosher facilities. Later, the group constructs a small building to use as a place of worship. There are limited kitchen facilities. Some attempt is made to adhere to Jewish dietary laws, but it is haphazard at best. Eventually, the community grows to a size that enables it purchase a complex of buildings including both a sanctuary and a social hall. Through a generous donation, it is able to construct a new kitchen in the social hall. The Synagogue Board, most of the directors of which do not keep Kosher homes themselves, agree that the new kitchen should be strictly Kosher. The great majority of members of the congregation also do not keep Kosher homes. The town passes a law that has the incidental effect of requiring the Synagogue's kitchen to violate Jewish dietary laws (I know that is unlikely, but bear with me.) The Synagogue challenges the ordinance under a state RFRA. The town argues the Synagogue's claim should be barred because the history of the congregation and the Synagogue, and the personal conduct of the Board and congregation members, demonstrate either a lack of sincerity or religious convictions of insufficient depth and substantiality to justify any burden of justification on the town. On these facts, should the town be required to justify its law and its refusal to exempt the Synagogue from the law's operation. Second, I think most of us are in various relationships -- with spouses, children, parents, employers, voluntary associations -- which are the source of obligations we take very seriously. I also suspect that many of us would be vulnerable to challenges based on the inconsistency and incoherency of our conduct. If we really cared deeply about our (fill in the blanks) we might be asked, why did we sometimes act in ways that seem contrary to these commitments that we claim to respect, to which we claim to adhere. I think it would be a mistake, however, to leap to quickly to the conclusion that these commitments and obligations lack substantiality or depth. Third, and finally, to go back to the very beginning of the thread in which it was asked -- why do we assume good faith and sincerity on the part of religious individuals and institutional claimants. I suppose one general answer is that we are typically discussing more abstract doctrinal questions and do not know enough about the facts to impugn anyone's integrity. But the more experience based answer, at least for me, is that I presume as a fact that the claimant seeking an exemption is sincere because most of the time it is true. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, February 16, 2014 1:10 PM To: Law Religion issues for Law Academics Subject: Re: Notre Dame-- where's the complicit participation? Sincerity I may have more to say on this point later, but for now this'll have to suffice: First, Doug may be correct that there is no doubt about what the Church's teaching is about the morality of contraception use. But there sure is plenty of doubt, as Eduardo noted, about whether the Church, or Notre Dame, or Notre Dame's leadership, or any serious Catholic student of the doctrine of cooperation with evil, actually believes what ND's lawyers are arguing about an alleged religious prohibition on Notre Dame's actions in exercising the religious accommodation. (Whether and how the courts might inquire into that question is a different matter, of course.) Having said that, I agree with Doug and Mark Scarberry that it would be deeply inappropriate for courts to inquire into the sexual practices of university personnel, because I think it's fair to assume that Notre Dame sincerely believes (as much as an institution can have beliefs) that contraception is (in the words of its Vice President's affidavit) a serious moral wrong. And this would be so even if Marci were correct that many ND officials and administrators themselves use contraception. For one thing, those individuals may consider themselves to be engaged in serious moral wrongs. (As Mark wrote:
RE: On implausible burdens
commitments to religious freedom for individuals, I think something deeply important is lost in this formulation of the connection between Town of Greece and Hobby Lobby. On Sat, Feb 15, 2014 at 8:16 AM, Penalver, Eduardo penal...@uchicago.edumailto:penal...@uchicago.edu wrote: Thanks, Rick -- For me, the problem with the ND claim is precisely the opposite. If the beliefs of the group were more unfamiliar, I'd be less puzzled and more likely to defer to the group's own description of the burden. As a Catholic, I feel more entitled to probe, and as a consequence I have really struggled to reconcile the ND litigation position with what I understand Catholic teaching to be on cooperation with evil. That's not to say that my kinds of insider-doubts about the accuracy and sincerity of ND's claims should inform the ultimate legal decision, but watching Catholic groups adopt the approach they have in these cases has made me more sensitive to some of the potential costs of RFRA. Eduardo On Feb 14, 2014, at 6:52 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: From: Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu Date: February 14, 2014 at 5:42:42 PM MST To: Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu Cc: religionlawp...@lists.ucla.edumailto:religionlawp...@lists.ucla.edu religionlawp...@lists.ucla.edumailto:religionlawp...@lists.ucla.edu, conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu Subject: On implausible burdens Dear colleagues - Today's lively traffic regarding Judge Posner's and ND's lawyer's performance (I think Judge Posner did not behave well) and the (redux) plausibility of ND's claim that the HHS mandate (as modified, in ND's case) imposes an unnecessary and substantial burden on religious exercise within the meaning of RFRA (I think the RFRA claims are strong) makes me think that the following blog post, by our colleague Alan Brownstein, is well worth a read and reflection: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html Some on this list have shared their view that ND's claim is implausible, or disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most of us are not sympathetic, even if we are open in principle to religious accommodations. Alan's post - which, as one would expect, is fair, charitable, and thoughtful - is (among other things) an invitation to law-and-religion folks to use the Town of Greece and HHS cases as an occasion to ask ourselves why we sometimes dismiss as insubstantial (or worse) claims of religion-related harm or burdens on religious exercise that we do not understand or that we are not willing to accommodate. I admit: I am probably as mystified by the hostile reactions of those who are mystified by ND's claims (which doesn't mean I think the ultimate question is easy) as they are by those claims. I have long been underwhelmed by the allegations of injury in religious-symbols cases. And, I regard the notion that ND's claims are - in a world where one's irritation at the prospect that, somewhere, a disadvantaged kid is using a voucher to attend a parochial school amounts to a standing-creating wound to conscience - bizarrely outside the realm of possibility (or worse!) as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry Solum would say - highly recommended. Best, Rick Sent from my iPad On Feb 14, 2557 BE, at 3:38 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I know I’ve made this point before, but I still don’t see the difference between the “setting in motion” that is generated by sending in the form and the “setting in motion” that occurs when one pays, under penalty of law, one’s taxes that can then be used for all sorts of immoral purposes according to the tenets of one or another religion. If I didn’t know better, I’d simply describe this claim as “frivolous,” but I do realize that people I respect apparently take it seriously. But isn’t it a recipe for the kind of Scalian anarchy that he warned about in Smith? It is a sad truth that out everyday acts of compliance with the law, including tax law, serves to enable the state to do things we (perhaps justifiably) don’t like. I really don’t see how one can distinguish Notre Dame’s claim from the refusal of a postal worker to deliver mail to an abortion clinic on the grounds that it enables their wicked handiwork. I don’t think Barnette applies to this case, since the kids in that case were being forced to proclaim their allegiance, which they treated as an act of idolatry. And, for what it is worth, the Court was crystal clear in viewing it as a Free Speech, not a freedom of religion, case. From: conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu
RE: Posner on oral advocacy in religion caseesri
While I am sympathetic to several of the arguments raised on Hobby Lobby's (and Notre Dame's) behalf in these various cases, the argument that people are not burdened in a legally cognizable way if they lose benefits to which they would otherwise be entitled is not persuasive to me. As a general matter, I think the loss of benefits is a cognizable burden both for Establishment Clause and Free Exercise purposes. Thus denying an individual a generally available benefit to which they would otherwise be entitled to accommodate some other person's religious practice is a burden for Establishment Clause purposes just as denying an individual a generally available benefit to which they would otherwise be entitled if they obey the dictates of their faith is a burden for Free Exercise purposes (e.g. Sherbert v. Verner). I remain unconvinced that a finding in favor of plaintiffs in these RFRA suits requires the loss of such benefits. And, of course, the existence of a burden does not necessarily mean that it cannot be justified and is constitutionally impermissible. But these are very different arguments than one suggesting that the loss or denial of benefits does not constitute a burden and can be ignored in the analysis. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 14, 2014 2:32 PM To: David Bernstein; Law Religion issues for Law Academics Cc: conlawp...@lists.ucla.edu; zent...@csusb.edu Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.commailto:davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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 conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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
RE: courts and lawmaking
I agree with much of what Eugene has been posting repeatedly on this thread. But let me add one point about the distinction between specific accommodations and general accommodations. If one believes, as I do, that the Establishment Clause imposes some constraints on legislative decisions accommodating religious beliefs and practices, courts are going to have to do quite a lot of the kind of interest balancing and line drawing that Marci seems to reject. If the Establishment Clause prohibits accommodations that go too far and excessively and unfairly burden non-beneficiaries, the courts will be second guessing the legislature's judgment. (The list has been discussing this issue with regard to the hobby/lobby litigation.) If the Establishment Clause prohibits accommodations that favor some faiths but not others, the courts will have evaluate the relative costs of providing and failing to provide requested accommodations. So, for example, because many states and the federal government accommodate the use of peyote by Native American religions, courts have to determine whether the denial of sought after accommodations by other faiths using other controlled substances are justified -- and that analysis requires a comparison between the social costs of accommodating the use of peyote and the social costs of accommodating the use of other drugs by other faiths. If Marci is arguing that courts lack the constitutional authority and institutional competence to engage in this kind of legislative decision-making, than presumably these long standing Establishment Clause doctrines should be rejected -- just as the Court rejected judicial interest balancing for free exercise purposes in Smith. Thus, if we follow the constitutional authority and institutional competence argument to its logical conclusion, that would give us a legal regime where the only accommodations permitted are specific accommodations adopted by the political branches of government without any constitutional supervision of the burdens created by such accommodations or the unequal treatment of different faiths. I do not believe that the Constitution requires such a result. Alan Brownstein Happy New Year to all. (And if you are going the AALS convention, you might consider attending the Law and Religion section program on Complicity with Evil on Saturday at 2:00. Some of the religion law list's regular and always thoughtful and interesting participants will be on the panel.) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilto...@aol.com] Sent: Monday, December 30, 2013 2:04 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: courts and lawmaking Mark--There are Supreme Court cases saying that novelty is a warning of potential constitutional violation. I was referring to those cases. Wouldn't we look at the Line Item Veto Act in this light? If Congress via RFRA is simply giving religious groups the ability to carve back federal law according to their own beliefs, it is a patent violation of the Establishment Clause in my view. How can Congress give religious believers a right of action to shape all federal law to their beliefs? Isn't that an across the oars preference for religion over irreligion and a violation of Thornton? A specific exemption is one thing, where a legislature has investigated the potential harm if religious groups are not required to obey the law. This blind accommodation is quite another. On the other side of the institutional competence divide is that courts upholding RFRA are giving up their power to be the deciders of free exercise issues as they acquiesce to letting legislatures effectively reverse their constitutional doctrine through the sleight of hand of calling it a statute ( as opposed to an attempt to amend the Constitution through simple majority vote). The Court's free exercise jurisprudence has been overshadowed and largely set aside by RFRA and RLUIPA.If Congress decides it does not like the Court's line drawing on the 4th Amendment, it could follow the RFRA example and pass a law reversing the cases using the cases it likes better and the Court's own language and standards to do so. The courts seem not to fully understand how much of their turf they are surrounding w the RFRA formulation. Marci PS. Apologies in advance to those furthering this thread. I will be away and likely unable to post over the next 2 daysBut will catch up Thurs Happy new year! Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 4:32 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: If courts used novelty as a general criterion for constitutionality of a statute, they would be arrogating to themselves more
RE: Can it really be unconstitutional for Congress to create statutes that borrow constitutional law doctrines?
If I remember correctly (and I might not), California has at least a couple of statutes that require state courts to apply rigorous free speech doctrine in circumstances where the doctrine would not apply under the Court's decisions. One law prohibits private colleges (and perhaps high schools) from restricting student speech that would be protected if it was expressed at a public institution. I think Stanford's hate speech code was struck down under this statute. Another law protects students working on public high school newspapers against censorship as if they were working on a private paper -- while the Court's Hazelwood decision reviews such censorship under an extremely lenient standard of review. Would this count as borrowing the Court's test and the cases? As Marty suggests, Marci's argument would be stronger if it was limited to statutes that employed a test that the Court had explicitly rejected as being beyond the Court's competence or authority. But there are subsequent cases that preclude reading Smith as doing that -- not to mention the fact that the Court employs ad hoc balancing and subjective and indeterminate standards in so many other areas of constitutional law. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, December 30, 2013 4:39 PM To: Law Religion issues for Law Academics Subject: RE: Can it really be unconstitutional for Congress to create statutesthat borrow constitutional law doctrines? But the use of prurient interest in obscenity statutes or fighting words in disorderly conduct statutes also borrows the Court's test and the cases -- that's the whole point of using terms with well-established legal meanings. Statutes do this all the time as to common-law rules, and on occasion as to constitutional law rules. I've never seen any indication that this is unconstitutional. I would take the argument more seriously if there were any authority for it, or any explanation for why legislatures are free to incorporate common-law terminology but not constitutional law terminology. (The Jews for Jesus case is interesting but, as Kevin Walsh points out, not really on point.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, December 30, 2013 4:17 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Can it really be unconstitutional for Congress to create statutes that borrow constitutional law doctrines? RFRA does not borrow terminology. It borrows the Court's test and the cases. As I argued in Boerne, Congress has simply taken over free exercise doctrine wholesale (as distinguished from passing individual exemptions, which is the legislative practice explicitly approved in Smith). There are no other statutes that have done this, but I do think Kevin's example of a case involving something somewhat akin is well-taken. Eugene may disagree with me, but that does not mean my point shouldn't be taken seriously. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 7:02 PM, Walsh, Kevin kwa...@richmond.edu wrote: The case that comes to mind is not really on point, but it is nonetheless an example of unconstitutional legislative incorporation of constitutional law terminology (if legislature is interpreted broadly): the ban on all First Amendment activities in the resolution of the Board of Airport Commissioners of the City of Los Angeles held unconstitutionally overbroad in Jews for Jesus. On 12/30/13 6:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'd love to hear what others have to say on this, but I just don't see any serious basis for concluding that Congress can't create statutes that borrow constitutional law terminology. Laws of course borrow common-law terms and doctrines all the time; why would they be barred from borrowing constitutional law terms and doctrines? Indeed, Title VI was interpreted in Bakke as incorporating the Equal Protection Clause standard for what constitute permissible race preferences. (I think that was wrong as a matter of statutory construction, but that's the interpretation the Court used, with no suggestion that there was any constitutional problem with such an interpretation.) 18 USC sec. 3509 provides that trial closure orders must be narrowly tailored to a compelling government interest. State disorderly conduct statutes sometimes refer to fighting words. Federal and state obscenity law often incorporates (indeed, has to incorporate) judicially defined concepts such as prurient interest or serious literary, artistic, political, or scientific value.
RE: Two kinds of religious exemption arguments
There are arguments that the costs of accommodating polygamy are unacceptably high. I leave it to others to evaluate those arguments. But, from at least one perspective, concerns about polygamy do support an analogy between recognizing and accommodating the love and loyalty of family members (including same-sex marital partners) and recognizing and accommodating the needs of devout individuals who are loyal to their religious commitments. I wrote some time ago that, The fear of having to recognize and protect polygamy has been the pit at the bottom of the slippery slope arguments that have been employed to deny the rights of both gays and lesbians and religious minorities. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Thursday, December 19, 2013 7:47 AM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments I cannot help but wonder what Alan's view is of the recent Utah polygamy case. It does seem to me that the arguments he so eloquently makes below should apply (easiest case) to adult old-Mormons who continue to believe that their religion encourages (compels?) multiple marriages. In this instance, at least, I suspect there's be relatively little incentive to engage in strategic misrepresentation, though the obvious problem is the creation of a new sect, perhaps in Colorado, that preaches the virtues both of smoking marijuana and multiple marriage (polyandrous and well as polygamous). I personally have no problem with this, though, to put it mildly, I would be surprised if Windsor were interpreted to require recognition of such marriages even if, by stipulation, Colorado did. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, December 19, 2013 12:19 AM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument that such marriages impose costs on third parties or the general public. But clearly, many people believe that such costs exist. Would proof of some such costs, however modest they might be, justify denying same-sex couples the right to marry? Or would we insist that it should require a showing of very, very, high costs before we would allow a state to refuse to acknowledge! and accommodate the right of two adults who love each other and are committed to caring for each other to marry. Alan ___ 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
RE: Are large employers really better off dropping health insurance?
Rick asks an important question. We can step back from the constraints of the current litigation and think about how this issue should be resolved on a clean slate, (This analysis also requires ignoring the polarized and dysfunctional governments that exist at the national level and in many states.) One basic model for resolving this issue and some others involving the provision of intangible and fungible goods, would suggest: 1. that government exempt conscientious objectors from the operation of the statute; 2. that government provide the insurance coverage to which they would otherwise be entitled to the employees of exempt employers; 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount to some government identified public goods that are consistent with their faith -- thereby mitigating if not eliminating the cost to government of providing the insurance coverage to the employees of exempt employers, and also mitigating if not eliminating any incentive to assert a sham claim to an exemption just to receive the secular benefits that result from the exemption. Marty's argument that there really is no mandate essentially suggests that the Affordable Care Act does this preemptively by giving all employers an alternative to providing the insurance coverage that some oppose on religious grounds. While Marty and Eugene very ably discuss whether the Affordable Care Act really gives employers an adequate alternative to providing the insurance, we should not lose sight of the foundation of their very thoughtful posts. A system that provides for alternative duties or obligations consistent with the objector's faith by requiring appropriate alternative contributions that indirectly offset the costs to government of making sure that the beneficiaries of the statute do not lose out does not substantially burden religious persons nor does it impose unreasonable costs on government or third parties. Not all accommodation issues can be resolved under this approach. Perhaps most cannot. But some can. If we are going to live together in a religiously pluralistic society in which government tries to respect the autonomy and dignity of all persons, isn't this kind of compromise the best approach to solving a problem like this one. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Garnett [rgarn...@nd.edu] Sent: Wednesday, December 18, 2013 9:12 AM To: Law Religion issues for Law Academics Subject: RE: Are large employers really better off dropping health insurance? Dear friends, I’m also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others who have been blogging and writing – carefully and insightfully – about the HHS cases. I wanted to raise a not particularly technical or doctrinal question that has been on my own mind as I think about the cases: Let’s put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation. Let’s put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance. Let’s say we’ve decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits. We know that some employers – not many, but some; primarily religiously affiliated, but not all – will have religion-based objections to providing coverage that includes these services to their employees. Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors? Perhaps no such alternative mechanism or route – one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible. Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible. We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage. But, again, I assume such an alternative could have been designed. (If I’m wrong about this, then the objecting employers are, it seems to me, in a weaker position.) Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind: We might think that accommodating these employers would
RE: Two kinds of religious exemption arguments
Eugene writes, Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do? I think one answer to Eugene's question is that we value interests such as love and loyalty - particularly when they arise in certain kinds of relationships. Suppose the question is why should we respect the duties and obligations that arise out of family relationships. After all, I could say, it is Eugene's relationship to his wife, and children and family, not mine, that might require him to do things that impose costs on others. Of course, there are limits as to the scope of those costs we are willing to incur to accommodate family relationships, and a strict scrutiny regime may be the wrong way to evaluate and balance such costs. But that is different than saying we should never accommodate the duties and obligations arising out of family relationships if doing so imposes costs on others. I think it is reasonable to question which relationships in our society should receive accommodations and protection. Certainly, religion and family life may not exhaust the range of accommodated relationships. But that is a different question than asking whether these relationships warrant accommodation in the first place. Alan ___ 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: Are large employers really better off dropping health insurance?
David's correct that there may be a discrepancy here --- and the greater the discrepancy the greater the cost to government and the public of providing the accommodation. I think the discrepancy is likely to be smaller rather than larger in cases involving government mandates requiring third parties (like employers) to provide intangible, fungible benefits (like money or insurance coverage) to their employees. I also think that it is constitutionally permissible and normatively appropriate for the government to incur some costs to accommodate religious exercise - although it may not be clear in many cases how the cost should be measured and when it becomes unacceptably high. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, December 18, 2013 11:24 AM To: Law Religion issues for Law Academics Subject: Re: Are large employers really better off dropping health insurance? Alan, Did you mean the two quoted passages below to be equivalent? They seem somewhat different (at least potentially) to me. That is, the cost of having the government rather than employers provide a benefit might outstrip the amount an employer gains by not providing the benefit, might it not? Does that potential efficiency discrepancy matter for your analysis? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: A.E. Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Are large employers really better off dropping health insurance? [snip] 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount [snip] [snip] the costs to government of making sure that the beneficiaries of the statute do not lose out [snip] ___ 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: Two kinds of religious exemption arguments
, low-cost exemptions are subject to different arguments.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 18, 2013 2:18 PM To: Law Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Eugene writes, “Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do?” I think one answer to Eugene’s question is that we value interests such as love and loyalty – particularly when they arise in certain kinds of relationships. Suppose the question is “why should we respect the duties and obligations that arise out of family relationships.” After all, I could say, it is Eugene’s relationship to his wife, and children and family, not mine, that might require him to do things that impose costs on others. Of course, there are limits as to the scope of those costs we are willing to incur to accommodate family relationships, and a strict scrutiny regime may be the wrong way to evaluate and balance such costs. But that is different than saying we should never accommodate the duties and obligations arising out of family relationships if doing so imposes costs on others. I think it is reasonable to question which relationships in our society should receive accommodations and protection. Certainly, religion and family life may not exhaust the range of accommodated relationships. But that is a different question than asking whether these relationships warrant accommodation in the first place. Alan ___ 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 posts
I also thought that Marty's argument that there is actually no employer mandate for RFRA purposes was extremely thoughtful and interesting. I thought about this analogy while considering his analysis. Suppose the federal government decides to return to a system of conscription that includes non-military, national service. All draftees are told up front that they can either serve in the military or in a wide variety of alternative service jobs. There is no specific conscientious objector exemption provided by the conscription statute. Would a religious pacifist have a claim under RFRA? As long as there were alternative service jobs available that did not violate the draftees religious beliefs, and the alternative jobs were not more demanding and dangerous than military service, I take it Marty's analysis would suggest that no viable RFRA claim would exist. A draftee might argue that serving the government in any capacity under a national service plan would violate his religious beliefs, but I think that position was never accepted in conscientious objector cases and presumably it would not be accepted for this new system of national service. Of course, as Marty recognizes, there may be questions as to the costs employers actually incur if they choose to pay the tax alternative (e.g. the employer being placed at a competitive disadvantage) just as in my analogy there may be questions about the burdens imposed on individuals choosing non-military service. But those questions do not undercut the foundation of his argument. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, December 16, 2013 12:03 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby posts I much appreciate Marty's kind words about my posts, and I'm very interested in his posts. The argument that there's actually no employer mandate for RFRA purposes (the Part III post) strikes me as especially interesting, though I'm somewhat skeptical about it. Marty, could you post an excerpt of that post on this list? I'd love to hear what others have to say about it. Thanks, Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, December 16, 2013 10:53 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby posts Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docxhttp://www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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: The clergy-penitent privilege and burdens on third parties
Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc’s point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about “burdens on third parties” across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ 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: Comparing religious exemptions and free speech
that be right? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 04, 2013 8:35 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc’s point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about “burdens on third parties” across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ 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: RFRA, the Establishment Clause, and saving constructions
Marty's post focuses the discussion particularly well here. However, if we construe RFRA to provide that avoiding significant third-party harms is a compelling state interest, we are still left with the least restrictive means part of rigorous review. How does the least restrictive means analysis fit into the picture of avoiding constitutional concerns? In Catholic Charities v. Superior Court, the California Supreme Court addressed a similar issue to the contraceptive mandate question currently before the U.S. Supreme Court - but under California constitutional law. The Court rejected the idea that the government taking over the cost of providing benefits to employees of exempt organizations could be a less restrictive alternative. Indeed, it's language seemed to suggest that no less restrictive alternative would be accepted that required any expenditure of government funds. Do list members agree with that analysis? If less restrictive alternatives (that is alternatives that are less burdensome to religious exercise) are available to the government but require the expenditure of funds, must that alternative be rejected out of hand as irrelevant to the application of strict scrutiny review? Does this analysis apply only to RFRA or to strict scrutiny review more generally? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, December 03, 2013 8:40 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can't read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations that imposed significant burdens on third parties, that would raise a serious constitutional question. Eugene, you're right that expanding RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, and in avoiding serious EC concerns. ___ 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: The Establishment Clause, burden on others, the employer mandate, and the draft
Micah, I guess the question for me is whether the fact that the government has not offered to provide coverage to the employees of exempt organizations constrains permissive accommodations under a statute like RFRA. If the provision of coverage to the employees of exempt organizations is a less restrictive alternative that adequately furthers the government's asserted compelling interests, why doesn't that lead to the conclusion that the government has violated RFRA. Or to put it another way, why should the government's failure to adopt a less restrictive alternative be the basis for denying the religious objector's claim under RFRA? If we apply strict scrutiny in a free speech case and the government's compelling state interest is to avoid unruly behavior by the audience if an unpopular speaker is permitted to speak, the government can't fortify its argument by refusing to provide adequate police to preserve order during the event. Government providing police to preserve order is a less burdensome alternative than silencing the speaker whether the government actually provides police services or not. I assume one response to this argument would be that the Establishment Clause prohibits the burdening of third parties - but that leads to the question of which government action violates the Establishment Clause. Should we view the government's compliance with RFRA as the Establishment Clause violation or the government's imposition of the mandate (which created a duty to exempt religious objectors under existing law - e.g. RFRA) without providing for coverage of employees working for exempt organizations as the problem. (This last argument is very tentative. I just thought of it and will withdraw it if it makes no sense.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman Sent: Monday, December 02, 2013 12:38 PM To: Law Religion issues for Law Academics Subject: Re: The Establishment Clause, burden on others, the employer mandate, and the draft Alan, I think you're right that the problem of burdening non-beneficiary employees could be resolved by the government providing them with full coverage (as I think Nelson Tebbe said in an earlier post). But until that happens, those employees have a claim in this litigation that hasn't yet been fully presented -- and one that, as Gedicks argues, constrains permissive accommodations (including RFRA). I should add that government coverage for non-beneficiaries might not solve all the possible Establishment Clause problems with a religious exemption. If there are non-religious employers who object to covering, e.g., abortifacients, they might claim that a religious exemption treats them unfairly. And depending on how the costs sort out, I suppose it's possible that there might be complaints from non-exempted employers (as in Texas Monthly). Micah ___ 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: Response to Tom Berg (and others)
Thanks for the kind comment, Nelson. While the contraceptive coverage in this case may not cost the employer anything, and the Court could limit its holding in this case to those particular facts, I think there is a somewhat broader, but still fairly limited, way to conceptualize this case. Here the government is requiring employers to provide intangible, fungible goods (insurance coverage and/or the money needed to purchase it) to third parties (their employees). Whenever this is the burden imposed on a religious objector, it is relatively easy for the government to take over the responsibility for providing such goods to their intended beneficiaries -- except the government would bear the cost of doing so. Their are two problems with assigning this burden to the government, however. The first, as noted, is the financial cost of providing these goods to their intended beneficiairies. Requiring the objector to contribute the cost of the goods to some other public cause (ther! eby relieving the government of a burden it would otherwise have to bear) solves that problem. Equally important, requiring a contribution to an alternative public cause helps to solve the other problem as well. Allowing for-profit entities to assert religious objections to providing goods to their employees or others -- when it will cost the for-profit entities money to comply with the obligation -- creates a risk of sham claims for exemptions and the substantial administrative cost of distinguishing genuine from unjustified claims for exemption. If, however, the entity claiming the exemption has to contribute a similar amount of money to some other public cause, we substantially mitigate or entirely eliminate the financial incentive for asserting unjustified claims. So, putting aside for the moment the question of whether for-profit corporations are persons for the purposes of RFRA litigation, and assuming that we are limiting the issue to cases in which the government is requiring employers (or other entities) to provide intangible, fungible goods to third parties, does my suggestion satisfy strict scrutiny? An accommodation allowing the religious objector to perform alternative service (contributing funds to another public cause) is a less restrictive alternative that adequately furthers the government's compelling state interest of providing the goods to the intended beneficiaries (which the government takes on at minimal cost), and it also adequately furthers the government's possibly compelling interest of avoiding a floodgate of sham claims (because there is no longer a financial or secular benefit to asserting such claims.) Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Nelson Tebbe [nelson.te...@brooklaw.edu] Sent: Thursday, November 28, 2013 7:10 AM To: religionlaw@lists.ucla.edu Subject: Response to Tom Berg (and others) Thanks everyone for terrific comments. We are in the middle of the holiday(s) now, but I want to share some quick thoughts. Paul, speaking now just for myself, I agree with Chip's response to you, with one alteration. Doctrinally, I think the ministerial exception is grounded in the intimate relationship between clergy and congregation, as well as in the concern for government favoring of a particular faction or faith over others. Morally/theoretically, it is best conceived as an associational interest -- it promotes communities of will and identity formation. I end up in the same place as Chip: because the ministerial exception is largely grounded in constitutional concerns, including nonestablishment commitments themselves, the analysis plays out quite differently from the analysis of the contraception mandate. Alan, I do think that your characteristically creative and insightful hypothetical solves some problems. If the government were to cover employee contraception premiums, that would remove the burden. That's why cases concerning religiously-affiliated nonprofits like universities and hospitals are distinguishable, because the mandate requires insurers to provide the coverage to women. I'm not sure, however, that you need to require religiously-owned corporations to pay $300 (or whatever) to some other cause. If the administration is right that contraceptive coverage essentially costs the insurer nothing -- because it's cheaper than covering unwanted pregnancies -- then employers wouldn't save anything by reason of a religious accommodation. If that accounting is not correct, then your solution addresses any gap in expense. Then I would worry about how realistic this solution is, politically! Happy Thanksgiving to all, Nelson ___ 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
RE: Response to Tom Berg (and others)
A thoughtful response, Nelson and Micah, to an equally thoughtful post, Tom. So here are my questions, Nelson (and Micah and Marci etc.) Let's assume the cost of medical contraceptive coverage is $300 per year (a totally made up number). 1. If a religious employer (individual or corporation) as a matter of conscience objects to paying this amount to buy medical contraceptive insurance coverage for his employees, would it eliminate (or at least move from substantial to insubstantial) the burden on the employer's religious liberty if the employer was given an option to spend the $300 on another public good that was fully consistent with his faith (medical care for veterans, for example)? This would be an accommodation similar to the one offered to conscientious objectors who are required to do alternative (peaceful) service instead of military service. 2. If the government spends $300 (more or less) to buy medical contraceptive insurance coverage for the employees of religious employers who do not receive such coverage from their employers because the employer elects to spend the $300 on the alternative public goods identified in the religious accommodation, would that satisfactorily resolve the health and gender equity concerns that the government asserts to justify the medical contraceptive coverage mandate? 3. If the answer to questions 1 and 2 are yes, why isn't this kind of an accommodation a less restrictive alternative (an alternative that is less burdensome to religious liberty) that adequately furthers the government's compelling interest in creating the mandate? Happy Thanksgiving to all! Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Wednesday, November 27, 2013 6:07 AM To: religionlaw@lists.ucla.edu Subject: Response to Tom Berg (and others) Tom: Thanks so much for engaging with the piece so generously and skillfully. It's heartening that the Establishment Clause issues are finally getting an airing-our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view-after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That's what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don't see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That's right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains
RE: Contraception Mandate
I have a lot of trouble with the argument that religious accommodations that effectively deny third parties government-mandated benefits to which they are otherwise entitled are not subject to Establishment Clause review. It is true that the government doesn’t have to protect anyone against employment discrimination and can decide how far it wants to extend such protection. It is also true that the government isn’t required to protect all people all the time against crimes like assault and battery (See Deshaney) or torts like conversion (See Flagg Brothers). But surely an exemption that allows religious individuals to assault third parties or commandeer their property violates the Establishment Clause. I agree that the accommodation upheld in Amos burdened the employee who lost his job. I think the Court’s cases recognizing some Establishment Clause limit on accommodations involve some implied balancing. Implied balancing is necessary to determine whether an accommodation goes too far in burdening third parties and whether the accommodation does not impermissibly favor certain faiths over others. That’s one of the reasons I think Smith is unpersuasive when it rejects free exercise claims against neutral laws of general applicability in order to avoid subjective judicial balancing. When the job of granting accommodations is assigned to the legislature, court’s will have to engage in the same kind of balancing that they avoid in Free Exercise cases under Smith when they adjudicate Establishment Clause challenges to the accommodation because it allegedly impermissibly burdens third parties or favors certain religions over others. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 9:43 PM To: Law Religion issues for Law Academics Subject: RE: Contraception Mandate I do indeed think so. The government doesn’t have to extend a government-mandated benefit to everyone; Title VII protections, for instance, aren’t extended to employees of small businesses, and are otherwise limited in various ways. Indeed, a law can’t discriminate based on a beneficiary’s religion in extending such a benefit (except perhaps when the benefit is itself a religious accommodation). But I don’t think that there should be an Establishment Clause problem with a law saying that, for instance, those tenants who want to rent from religious objector landlords don’t get the protections of marital status discrimination law, those employees who work for religious vegetarian landlords don’t get the protections of the meaty lunch program, or those employees who work for employers who object to paying for contraceptives or abortifacents don’t get the protections of the relevant health care insurance program. As to Cutter, the only way I can see of reconciling it with Amos is by not reading Thornton too broadly. The accommodation in Amos did not, after all, at all “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as included denial of a government-mandated benefit. The employee in Amos was seriously burdened indeed, by loss of his job, and not just of some benefit under the health insurance coverage. That the employer was a nonprofit, after all, did not eliminate or even diminish the burden on the employees; employees of nonprofits are just as burdened by loss of a job as employees of for-profits. And the law in Amos did not call on courts to “take adequate account of the burden.” Eugene Alan Brownstein writes: Eugene, are you arguing that an exemption that effectively denies a class of individuals a government-mandated benefit that there are otherwise entitled to receive can never violate the Establishment Clause under Amos, Thornton, and Cutter? I think that requires courts to engage in an unhelpful inquiry trying to distinguish between benefits and burdens (does an exemption from laws requiring that employers provide employees a safe working environment impose a burden on workers or deny them a government-mandated benefit). I think Cutter clearly suggests that exemptions would be unacceptable, not because they give the force of law to a believer’s action, but because of “the burdens a requested accommodation may impose on non-beneficiaries” and because an accommodation would “impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution.” I agree that the mere fact that some burden is imposed or benefit denied does not demonstrate that an exemption violates the Establishment Clause. But accommodations that either impose direct burdens or interfere with mandated benefits can violate the Establishment Clause if they go too far. Alan Brownstein ___ To post
RE: Contraception Mandate
Interesting piece. I think there have been and should be Establishment Clause constraints on the burdens religious accommodations can impose on third parties, but determining how and where this line should be drawn is no easy task. I think there are three other distinctions or questions one might raise about extending RFRA exemptions to for-profit corporations. First, religious liberty and freedom of conscience is primarily a dignitary right, not an instrumental right. Citizens United involved the instrumental goals of the free speech clause. Does the Constitution provide the same dignitary protection to corporations that it provides to human persons? See, e.g. Justice Rehnquist's dissent in PG E v. PUC. Second, I think the state would need to worry more about sham claims for religious exemptions from for-profit companies than religious non-profits. The religious identity of the great majority of religious non-profit corporations is not hard to determine. Religion is the core of their activity. The core activity of the great majority of for-profit corporation is making a profit. It will be harder to guarantee the genuineness of claims for religious exemptions in the for-profit sector. This is particularly true when the exemption will reduce the corporation's costs. While this concern might be more appropriately considered in the application of strict scrutiny review, one might argue that the case for not granting the exemption is sufficiently strong that we could adopt a prophylactic rule preventing for-profit companies from asserting the statutory right in the first place. Third, we often require the recipients of exemptions to channel the cost of the obligation they need not obey toward some other public good or service that is consistent with their faith. See, e.g. conscientious objectors being required to perform alternative service. Would the case for an exemption be strengthened if the recipient of the exemption was required to direct whatever it saved from being relieved of the obligation to provide contraceptive coverage toward some other government identified public good? I am inclined to agree with Tom that there are important arguments on both sides of this case. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 12:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html Nelson Tebbe ___ 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: Contraception Mandate
Eugene, are you arguing that an exemption that effectively denies a class of individuals a government-mandated benefit that there are otherwise entitled to receive can never violate the Establishment Clause under Amos, Thornton, and Cutter? I think that requires courts to engage in an unhelpful inquiry trying to distinguish between benefits and burdens (does an exemption from laws requiring that employers provide employees a safe working environment impose a burden on workers or deny them a government-mandated benefit). I think Cutter clearly suggests that exemptions would be unacceptable, not because they give the force of law to a believer’s action, but because of “the burdens a requested accommodation may impose on non-beneficiaries” and because an accommodation would “impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution.” I agree that the mere fact that some burden is imposed or benefit denied does not demonstrate that an exemption violates the Establishment Clause. But accommodations that either impose direct burdens or interfere with mandated benefits can violate the Establishment Clause if they go too far. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 2:52 PM To: Law Religion issues for Law Academics Subject: RE: Contraception Mandate I don’t see that at all. Say the government requires employers to buy lunch for their employees, and a religiously vegetarian employer orders only vegetarian food. I don’t think that somehow constitutes the employer discriminating based on religion against people who don’t share his beliefs. Now say that the government requires employers to buy lunch for their employees, and include meat (since that’s what the government sees as part of a healthy, balanced lunch), but has an exemption for religious employers. I don’t think that would somehow violate the Establishment Clause, on a Thornton theory. Unlike in Thornton, the exemption wouldn’t impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a believer’s action (Amos’s explanation of Thornton). It would simply -- like in Amos or in Cutter, which are indeed relevant for purposes of understanding the boundaries of Thornton -- exempt the employer from a government-imposed requirement, and indeed a requirement that (more so than in Amos) involves a government-imposed burden on the employer’s religious practice. That the employees no longer get a government-mandated benefit does not make the exemption unconstitutional. So I don’t think there’s an Establishment Clause problem with such exemptions, and likewise there wouldn’t be with any such exemption recognized under RFRA. To be sure, this doesn’t tell us whether the exemption should still be denied, on the theory that the denial is necessary to serve a compelling government interest. But that’s a separate question from whether the exemption would be outright unconstitutional. Eugene Marci wrote: The employer is insisting that employees accept benefit plans tailored to his religious beliefs, even though they accepted employment, which under federal law prohibits the employer from discriminating on the basis of religion (or gender). ___ 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: Rights of corporations and RFRAs
I think there is considerable force to Eugene's argument about closely held corporations (although I'm not sure if the size of the enterprise needs to be taken into account too -- I'm still thinking about that.) Do I take it from your argument that you believe a publicly traded corporation would not be a useful stand-n for people? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 3:31 PM To: Law Religion issues for Law Academics Subject: Rights of corporations and RFRAs I've long thought that corporate rights make sense only to the extent that they are useful for stand-ins for the rights of people. (I support Citizens United precisely because of that.) And when it comes to closely held corporations, whose owners claim an objection to participating in some activity, including by paying for it or allowing it on their property, there are indeed rights of people involved. A simple hypothetical: A law requires that all retail stores sell lottery tickets. A store is owned by a corporation, which is in turn owned by (say) two brothers; they believe that gambling is a sin, and that facilitating gambling is a sin. (In that respect they are like Thomas in Thomas v. Review Bd., who believed not only that he shouldn't go to war, but also that he shouldn't help in warmaking.) The requirement, it seems to me, burdens their religious practice, even though they own their business through a corporate form. The corporate form is indeed a legal fiction, which is why I think corporate rights should only be recognized a stand-ins for the rights of people. But for the same reason burdens on people's religious practice shouldn't be ignored by the law by invoking the fiction that the gas station isn't really owned by the brothers but is instead owned by the corporation. The only question, I think, should be whether the brothers would have to sue under the relevant state RFRA in their own names, pointing to the burden that the lottery sales mandate imposes on them, or whether they could have the lawsuit be filed in the name of the corporation. But the bottom-line result should be that the owners of the closely held corporation could indeed assert a RFRA claim, whichever way it's done. Eugene ___ 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: Contraception Mandate
The answer has to lie somewhere in between these two stark alternatives, doesn't it? It can't be that the cost to the government (the public) in mitigating or avoiding the harm caused by granting an exemption can never be high enough to be compelling. But it also can't (or shouldn't) be that any accommodation that costs third parties or the government (the public) more than a de minimis amount violates the Establishment Clause. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, November 26, 2013 4:20 PM To: Law Religion issues for Law Academics Subject: Re: Contraception Mandate But the government is under no obligation to provide contraceptive coverage for women even if it loses these two cases in the Supreme Court. And if it loses them, the female employees and family members who lose this coverage will suffer (in full) the third party harms that Nelson, Micah, Fred and others are discussing. You can't measure the scope of those harms by some hypothetical measure that may never get enacted. So the measure of their harm is the market cost of buying the contraceptives or contraceptive insurance (is there such a product?). That is, on average, far more than the de minimis cost that TWA v. Hardison says is the (Establishment Clause) limit that Title VII can be allowed to impose on employers. Avoiding that third party harm IS the compelling interest in the case. Allowing hypothetical government provided substitutes -- e.g., if XYZ Company won't hire women, the government can hire them -- will mean the government can never win a RFRA case once substantial burden has been shown. That can't be right. On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: The less restrictive means would be to have the government offer such a plan, which employees could buy from the government (or from some other entity), without the employer being involved. After all, until recently, employers weren't required to provide insurance at all, though there were substantial market pressures and tax incentives for them to do so. The alternative would simply retain that pre-ACA system for the tiny corner of health care spending involved in blood transfusions for employees of companies that oppose such transfusions. Now I certainly wouldn't say that such an alternative is constitutionally mandated, and I wouldn't relish the prospect of judges deciding, as a constitutional matter and with no possibility of legislative override, whether such an alternative would be too expensive or burdensome on the government. (That's one reason I support Employment Division v. Smith as a view of the Free Exercise Clause.) But RFRA is a Congressional judgment that judges should generally engage in least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to Congressional authorization and with the possibility of a Congressional override. So under RFRA, courts would have to consider whether this alternative system of funding blood transfusions is indeed a less restrictive means of serving a compelling government interest. Eugene ___ 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: A right not to be compelled to create expression?
I think the analysis James offers is particularly helpful and the analogy to Smith is particularly on point. No one disputes that the conduct at issue in Smith constituted religious exercise. The critical question for the Court was whether free exercise doctrine should protect it. The reasons why the Court refused to protect religious conduct against neutral laws of general applicability were distinct from questions about what constituted religious exercise. The Court focused on various concerns and values that required it to impose some limitations on the extent to which the Constitution protects religious exercise. Similarly, I have no doubt that a wedding photographer is involved in conduct that has both a creative and communicative dimension to it (at least to some extent). But I think that is true for a wide variety of jobs and professions. We do not always protect such conduct under free speech doctrine, however, in significant part because doing so would impair government's ability to perform important regulatory functions. Doctors, lawyers, therapists, marriage counselors, landscape designers, architects, chefs, florists, clothing designers and a host of other vocations involve conduct that has a creative and communicative dimension to it. I'm not prepared to say that the regulation of all such conduct is subject to serious review under free speech doctrine. Extending free speech doctrine so far would take too many decisions off the table for political and democratic determination and assign them to the judiciary for resolution. Having said that, I think it is no easy job to develop criteria for determining the scope of free speech doctrine in these cases. I'm not sure that the factors James lists could stand on their own to limit free speech protection. For example, some incidental burdens on speech, such as the application of a general noise ordinance to a political rally, receive free speech review. A combination of several factors might be necessary. It seems to me that Eduardo's focus on whether a freelance writer or photographer holds him or herself open to all clients and subjects or is restricted and selective in his/her work is also helpful in deciding the scope of what the free clause protects, in part because it relates to how we conceptualize the writer or photographer's dignitary interests, but also because it tells us something about the impact of extending free speech protection to these individuals' activities. Alan Brownstein UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Sunday, August 25, 2013 9:17 AM To: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Eugene invokes Wooley to make the following comparison: If Maynard can't be required to carry the motto 'Live Free or Die' on his car, then a Maynard who is a generally will-take-most-commissions freelance writer can't be required to write a press release or organizational newsletter that expresses the view 'Scientology is good.' Should it not matter that Wooley -- like Barnette, but unlike Eugene's freelance-writer hypo -- involved a content-specific regulation by the government directed at speech (declare Live Free or Die or pledge Allegiance to the flag), not a broad conduct regulation of commercial services offered to the public (don't discriminate based on a customer's race, religion, sex, marital status, or sexual-orientation) that ends up having an incidental effect on speech in a particular case? Eugene has been supportive of the Smith Court's distinction between regulations directed at religion and incidental burdens in the free exercise context; why shouldn't a similar distinction be made in the free speech context? Also, here's an alternative comparison that would seem to flow just as logically from Eugene's position: If Maynard can't be required to carry the motto 'Live Free or Die' on his car, a Maynard who runs a bakery and generally personalizes cakes for most occasions can't be required to personalize a cake that expresses the view that an [interracial, inter-faith, second, same-sex] marriage anniversary is a happy occasion. I'm skeptical that a bakery owner's free speech interests are just as threatened by the requirement to provide an interracial couple with a Happy Anniversary, Richard and Mildred cake as Maynard's rights were threatened by having to display the state's Live Free or Die message on his car. My skepticism is driven by (1) the distinction between government regulation directed at speech and government regulation that incidentally burdens speech, (2) the distinction between the commercial and non-commercial realms that Justice O'Connor wrote about in Jaycees, and (3) the distinction between the internal activities of a church or membership organization and external activities
RE: New Twist On Challenge to ACA Contraceptive Mandate
This has been a fascinating thread. I'm on vacation and have not had the opportunity to participate except for a quick comment right now. With regard to the substantial burden, would the analysis change if we characterized the ACA (at least for employees who would not receive subsidies for their insurance) as a regulation that requires employers to pay part of their employee's compensation package with a health insurance policy? I assume that if the government required employers to pay their employees 5% of their salary in non-transferable pork vouchers, that would be a substantial burden on individuals who for religious reasons do not eat pork -- even though I could just refuse to use the vouchers. I'm not sure that my hypo can be reasonably analogized to the ACA, but if it can, then I think the substantial burden analysis might be different. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Friday, August 16, 2013 5:49 PM To: Law Religion issues for Law Academics Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate I agree; as I wrote near the start of the thread, I'm not sympathetic to the legislator's claim, and I'm not sure that the provision of only a general insurance policy and not the one with the exceptions substantially burdens the legislator's belief. Indeed, the legislator's ability to send a disclaimer to the insurance carrier promising not to use certain services would, I think, suffice to eliminate any burden he might feel from having the policy. Cf. Tony Susan Alamo Foundation v. Secretary of Labor, http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden imposed by minimum wage law on employees who felt a religious duty to volunteer was eliminated by the possibility of just giving the money back). But that's a very different argument from the argument that the legislator's seeking a narrower insurance policy is imposing on his daughters. The problem with his claim isn't that he's somehow denying his daughters something to which they're entitled, or that his conduct creates an externality. Eugene ___ 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: The Hobby Lobby Case: Four Thoughts
This very thoughtful discussion reminded me of an issue that has often perplexed me: how do we reconcile religious accommodation statutes, such as RFRA, with the Court's repeated admonition that discrimination based on religion beliefs, ideas, or messages constitutes viewpoint discrimination prohibited by the free speech clause of the First Amendment. It is my understanding that in the world of for profit enterprises, a business owner's freedom of association arguments will not allow him or her to avoid the requirements of conventional civil rights laws prohibiting employment discrimination on the basis of various characteristics (e.g. race, gender etc.). It also seems clear that most civil rights laws do not provide exemptions for business owners whose secular beliefs or associational interests conflict with anti-discrimination requirements. If RFRA or other statutes are interpreted to permit religious employers to avoid the requirements of these civil rights laws, would this application of the statute constitute viewpoint discrimination in favor of religious beliefs, ideas, and messages (and the associations on which they are based) which would arguably violate the free speech clause? The application of this argument in Hobby Lobby may be less obvious, but it might go something like this. One of the reasons that religious employers object to providing health coverage for medical contraceptives - the use of which is prohibited by their faith - is that doing so communicates a message of implicit consent to the use of medical contraceptives. The provision of such insurance burdens the organization's ability to communicate its religious beliefs. How can an organization credibly insist that it is sinful to use medical contraceptives at the same time that it provides insurance to its employees that covers their use? If RFRA exempts religious employers from this obligation, but secular employers must comply with regulations requiring them to provide insurance for medical uses they find morally offensive for secular reasons, does that constitute viewpoint discrimination in favor of religious beliefs, ideas, and messages. The secular employer's message is burdened by the requirements it must obey, but the religious employer is relieved of that burden. I haven't given a lot of thought to how this free speech conundrum might be relevant to the contraceptive mandate cases, but these posts reminded me of the issue. Any thoughts, James? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, July 11, 2013 1:19 PM To: religionlaw@lists.ucla.edu Subject: Re: The Hobby Lobby Case: Four Thoughts An excellent question, but one that I think ultimately challenges the Tenth Circuit's framing of the case, not my argument that the Tenth Circuit's analysis was incomplete within its own frame. In focusing its analysis on Lee, the Tenth Circuit emphasized that Lee was a case in which the Supreme Court squarely addressed for-profit individuals' Free Exercise rights. If Lee is going to be invoked for that proposition, I think it is hard to dispute that the most relevant language in the case is the enter into commercial activity/impose on employees passage that the Tenth Circuit ignored. O Centro involved neither the specific issue common to Lee and Hobby Lobby (the burden of for-profit-employer exemptions on the rights of employees), nor the more general issue the Court said in Cutter must be considered in appropriate cases (the burden of religious exemptions on the rights of nonbeneficiaries). Rather, the government's argument in O Centro was merely the one the Court belittled as the classic rejoinder of bureaucrats through history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. 546 U.S. at 435-36. Given that the government in O Centro was not asserting an interest in the rights of nonbeneficiaries, and given that the case did not involve employers and employees, I don't think we can conclude from it that Lee is less about imposition on employees and more about government's interest in uniformity. And since O Centro went on to quote Cutter's appropriate balance language, presumably the Court will continue to account for the very thing Cutter said must be balanced: impositions on nonbeneficiaries. That brings us back to Lee, which unlike O Centro, but just like Hobby Lobby, did involve balancing the rights of employers against impositions on employees in the commercial marketplace. And the commercial activity/burden on employees paragraph in Lee ends by deferring to Congress on the balance: The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise. 455 U.S. at 261. See also Hernandez v. C.I.R., 490 U.S. 680, 682 (1989) (The fact that Congress has
RE: Injunction barring display of gruesome images of aborted fetuses outside a church
Interesting indeed. I've given some thought to the question of whether courts should distinguish two cases. 1. Speakers target young children with messages (words or images) arguably relating to matters of public concern that the speaker understands will cause the child audience significant emotional distress, and 2. Speakers are communicating the same message to an adult audience but realize that an incidental consequence of doing so is that young children will be exposed to the messages and will be emotionally upset. Any thoughts, Eugene. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, May 14, 2013 2:54 PM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: Injunction barring display of gruesome images of aborted fetuses outside a church Colleagues: I might have mentioned this case (which I'm litigating) before on the list, but now that the briefing is done I thought I'd pass along all the information about it, in case some might find it interesting. The case is Scott v. Saint John's Church in the Wilderness, in which the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying gruesome images of aborted fetuses outside a church. The court acknowledged that this was a content-based speech restriction, but said that the injunction passed the strict scrutiny required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case, because lower courts disagree on whether such content-based restrictions are constitutional. The brief in opposition argued that the restriction is content-neutral, and is justified by the interest in protecting worship services (though that is not the interest the Court of Appeals relied on). There's a New York Times article today by Adam Liptak about it, http://www.nytimes.com/2013/05/14/us/church-suit-says-abortion-protest-upset-children.html?pagewanted=all_r=1;. Here are the relevant documents (also linked to from http://www.volokh.com/2013/05/14/scott-v-saint-johns-church-in-the-wilderness-briefs/) 1.The decision belowhttp://scholar.google.com/scholar_case?case=2999459973173983607. 2.The petition for certiorarihttp://www.law.ucla.edu/volokh/scott/petition.pdf. 3.The amicus brief of free speech scholars (Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O'Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein)http://www.law.ucla.edu/volokh/scott/amicusspeechprof.pdf. 4.The amicus brief of Religion Clauses scholars (Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl Esbeck, Marie Failinger, Edward Gaffney, Richard Garnett, Douglas Kmiec, Faisal Kutty, Michael Stokes Paulsen, Michael Perry, Richard Stith, and Lynn Wardle)http://www.law.ucla.edu/volokh/scott/amicusreligionprof.pdf, written by Ed Gaffney. 5.The amicus brief of historians of art and photography (Profs. Dora Apel, Stephen Eisenman, Renée C. Hoogland, Paul Jaskot, William J. Thomas Mitchell, Terence Smith, John Tagg, and Rebecca Zorach)http://www.law.ucla.edu/volokh/scott/amicusarthistoryprof.pdf. 6.The amicus brief of the Center for Bio-Ethical Reformhttp://www.law.ucla.edu/volokh/scott/amicuscber.pdf. 7.Respondents' Brief in Oppositionhttp://www.law.ucla.edu/volokh/scott/bio.pdf. 8.Our Reply Briefhttp://www.law.ucla.edu/volokh/scott/reply.pdf. The Court has scheduled the case to be discussed at the May 30 conference. Eugene ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
A couple of quick thoughts regarding your points, Chris. 1. If we are talking about existing laws such as RFRA or other laws that require strict scrutiny review, there may be a dilution problem (although like you I have seen strict scrutiny diluted in state RFRA cases and in RLUIPA cases without any evidence that this has crossed over to other areas of law.) Also, because courts often do not really apply strict scrutiny in RFRA and RLUIPA cases, notwithstanding the clear language of the statutes, the insistence that courts rigorously enforce a substantial burden threshold seems harder to justify. In any case, from a more abstract perspective, we can re-think both the standard of review and the substantial burden threshold. That's at least the focus of my posts. 2. When you talk about plaintiff's creating a burden that sounds like religious beliefs have clear parameters governed by logical rules. I'm certainly not a theologian, but for a lot of individuals, religious beliefs and duties are relational and they are evolving in the sense that individuals don't always think about what their religion requires in hypothetical situations. Relational beliefs and duties are rarely logical. (Certainly, my relationships with people who are important to me aren't logical.) As for evolving understandings, it seems just as plausible to say that a religious individual confronted with a new question or situation realizes that a government mandate burdens his or her faith than it is to say that they create a burden to get their claim adjudicated on the merits. Outside of the prison context, I have seen very few free exercise or RFRA claims where plaintiffs are asserting sham beliefs to benefit unfairly from religious liberty legislation. (List members can correct me if I'm wrong about this.) 3.I can't summarize the position of the Catholic Church on contraceptive mandate laws at the national level or in other states. But in California, when the Women's Contraceptive Equity Act (the state forerunner of the HHS regulations) was debated in the legislature, the Catholic Conference took a neutral position on the law but strongly insisted on a religious exemption for Catholic Charities and other Catholic non-profits (which it did not receive.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, October 03, 2012 9:41 AM To: 'Law Religion issues for Law Academics' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is burden, and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that strong claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: The claimant's say-so of a religious burden. A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can create a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided at
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
To follow up on Doug's point, in some cases whether a religious person is relieved of an obligation because of duress might depend on the kind and magnitude of the duress. Obligations may be excused if compliance places the individual's life at risk, for example. Under Marty's analysis, would this mean that the greater the punishment imposed by the state in requiring someone to violate their religious obligations, the less likely it will be that this requirement constitutes a substantial burden on religion? The greater the duress - the less choice the religious individual has to refuse to comply - therefore the weaker the claim to a substantial burden on religion. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, October 03, 2012 1:46 PM To: 'Law Religion issues for Law Academics' Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Marty's point about alternative payments in lieu of purchasing insurance with the required coverage is an important one. I don't know how this alternative is structured or characterized in the challenged regulations. But as an abstract matter when we are talking about regulations that require religious individuals or institutions to do something that their religion prohibits them to do, we can often resolve the religious liberty issue by granting an exemption from the obligation (here, the requirement to contract for the insurance coverage) while requiring as a condition to that exemption that the religious individual incur costs or duties of less than or equivalent secular value which would be directed toward some public good that is consistent with their faith (here, contributing the cost of the disputed insurance coverage into a fund to be used for some alternative public purpose.) This is the model we use for conscientious objection statutes which require the religious pacifist exempt from military service to perform alternative service consistent with his or her religious obligations. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 5:28 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to make available to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much less than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services to the employer. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I admire the way that Marc addresses this issue. Very thoughtful post. There are no easy answers here, as Marc recognizes. Many religious obligations involve material sacrifices by believers. What material loss do I incur if the government forces me work on Yom Kippur? It can't mean that this is not a substantial burden on religious liberty because I would not suffer a material burden if I complied with it. Some accommodations are materially beneficial to the religious individuals that seek them. Sometimes we can test sincerity (and arguably substantiality) to some extent by limiting or eliminating those material benefits. (see my last post) There is no way to test the claimant's willingness to incur to pay a fine or face criminal prosecution other than requiring the claimant to pay the fine or by prosecuting him. That solution has obvious difficulties. We do often indirectly use the temptation of increased benefits. When we pay people overtime to work on Saturday or Sunday, for example, the loss of increased income tests their commitment to observing the Sabbath. If we are talking about laws that require an individual or institution to do something that they claim their religion prohibits them from doing, I don't see any way to move beyond subjective sincerity without crossing the lines that forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. So what do we do. In this kind of a case (where the state allegedly obliges a person to do something their religion prohibits) I ask this question - what doctrinal approach is going to get us the best answer that both protects religious liberty and appropriately respects the countervailing state interests that may justify burdening religious liberty? I think we are more likely to get the right answer when courts look at the burden on the claimant, the importance of the state's interest and the availability of less restrictive alternatives as opposed to allowing some claims to be dismissed on the grounds that they are insufficiently substantial. We can argue about whether an allegedly attenuated burden should be assigned less weight than a more direct burden in adjudicating the case on the merits. But that is different than saying that a necessarily arbitrary ruling about the substantiality of the burden should preclude any consideration of the importance of the state's interest or the availability of less restrictive alternatives. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc DeGirolami Sent: Tuesday, October 02, 2012 8:44 AM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I've been having a hard time understanding too. A burden does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being substantial) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective substantial to require some sort of material burden, I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to forfeit a benefit, pay a fine, or even face criminal prosecution (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer *at least* one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It's difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his Failure of RFRA piece, I think). But even if we thought that willingness to pay a fine would be a good test for substantiality (which I'll admit doesn't seem unreasonable to me, in some cases), I wonder about how this would work in practice. That is, how would we know that the plaintiff was really willing to pay a fine rather than be forced to do something alleged to violate religious conscience? What would be the proof? I'll add that I am genuinely confused about the issue of substantiality of the burden, because it does seem to me to require more than something like subjective sincerity, but also to forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. If that is right, then what is left to determine the substantiality of the burden other than the degree to which the claimant is willing to suffer for his or her beliefs? Marc From:
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks for your post, Marty. Rick, of course, will have to speak for himself. But I don't believe that the independent choice of parents as to how they will spend education vouchers should end the Establishment Clause inquiry. And I also believe that the government's use of taxes to engage in activities that violate the taxpayer's religious beliefs burden the taxpayer's religious liberty. This doesn't mean that the individual's religious liberty interests should be always be vindicated in these kinds of cases. I support a religion clause jurisprudence that defines harm or burden or infringement fairly broadly so that claims can get on the constitutional playing field. I would assign most of the work in determining whether state action is constitutional to the adjudication of claims - not to a decision on burden that cuts off all other analysis. (I also think that while some burdens may not be sufficient to invoke judicial review standing alone, combined with other religious and equality interests they should be adjudicated on the merits.) With regard to the several factors that Marty lists: To begin with, I would rephrase Marty's basic question this way. Is it really fair for religious liberty purposes to attribute to the employer here the employee's decision to use contraceptives when the employer sincerely believes that G-d prohibits him from facilitating the use of contraceptives in this way? I think the answer is Yes. More specifically, as others have suggested, I don't see how the coverage being compelled by law alters the analysis. The fact that a religious believer is compelled by a law to do hundreds of things that do not violate his faith does not alter the fact that one mandate requires him to do what his religion prohibits. One might argue that a broad law creates so many instances in which religious liberty might be abridged that the government has a strong administrative convenience justification for rejecting accommodations for everyone. But that argument goes to justification, not to burden. As to disclaimers, I'm not persuaded that a disclaimer really resolves concerns about complicity with or facilitating wrongful acts. But let's assume that one of the concerns here has to do with perceptions of complicity by others. There are religious rules that are arguably prophylactic measures. There are rules that are designed to remind people of things they are supposed to do. There may be alternative ways to accomplish these religious goals. The question is whether religious individuals and institutions are permitted to follow the rules they believe are required by their faith to accomplish religious purposes or whether the state gets to require them to violate their beliefs because the state thinks that different means are available and preferable for furthering their religious purposes. For example, one of the justifications for prohibiting Jews from eating chicken and cheese (milk and meat) even though a chicken obviously doesn't produce milk and doesn't really fit into the biblical prohibition is that people might see people eating a chicken and cheese sandwich, not understand that the meat in the sandwich is from a chicken, and begin to believe that it is OK to eat milk with meat. Obviously, there are alternative ways to avoid this misunderstanding. I don't think that states or courts get to dismiss the way that Jewish tradition handles the problem because they think there is a better way to deal with the issue. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 11:52 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
Marci, Would you object if the government created an exemption package that did three things. It exempted the religious employer from a regulation requiring employers to pay for health insurance that covered blood transfusions. It provided insurance coverage for employees working for exempt religious employers at the government’s expense so that no employee lost any insurance coverage as a result of the exemption. It determined whether and to what extent the religious employer saved money as a result of the exemption from the health insurance coverage mandate and directed the employer to contribute that amount to a separate fund used by the government to further public purposes that are consistent with the employer’s faith – say providing food to hungry children. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Sunday, September 30, 2012 6:03 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate Mark-- Should it matter whether we are talking about blood transfusions or abortion? If Catholic institutions can win in the ACA cases on abortion, then Jehovahs Witnesses should be able to not pay for coverage for blood transfusions for their employees. There is no persuasive distinction between the two that I've heard yet, but no one has made the foray beyond abortion/contraception on the list yet other than my earlier suggestion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com ___ 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: Reaasonable acccommodations and Observant Sabbatarians
One problem in cases like this one is that the accommodation the religious employee seeks has considerable secular value to both nonreligious and religious individuals (what I have called surplus secular value) in addition to it being necessary to the religious employee's exercise of her faith. A fair accommodation in this circumstance would recognize that value and allocate it at least in part to the employees who would lose weekend time off in order to provide the religious employee the opportunity to observe the Sabbath. This Sixth Circuit decision apparently ignores the cost to co-workers created by granting the sought after accommodation entirely unless the employer can prove that it would internalize those costs. The logic of Establishment Clause cases monitoring religious accommodations that go too far in benefiting religious individuals at the expense of third parties suggests that this is a problematic construction of Title VII. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Wednesday, July 25, 2012 7:40 AM To: religionlaw@lists.ucla.edu Subject: Reaasonable acccommodations and Observant Sabbatarians Does an employer's duty to reasonably accommodate the work scheduling needs of a sabbatarian employee include compelling objecting coworkers to accept involuntary shift reassignments requiring additional weekend work in the absence of a formal seniority system? Perhaps, says a split panel of the sixth circuit in an unpublished decision, splitting with two other circuits in Crider v. University of Tennessee, http://www.ca6.uscourts.gov/opinions.pdf/12a0800n-06.pdf Ms. Crider was hired as the third of three university employees whose core job responsibilities included monitoring a portable emergency cell phone through which study abroad students could reach the university in an emergency at any time. The university required the phone to be monitored at all times; the two employees who previously had assumed that responsibility by working alternate seven day shifts objected to the burden of working every other weekend, and the university sought to hire a third employee to spread the weekend workload. Ms. Crider, a Seventh Day Adventist, applied for and accepted the job knowing of the scheduling requirements, but, consistent with her religious observances and practices, informed the university four days after she was hired that she would not work, including answer the phone, from sundown Friday through sundown Saturday. Ms. Crider was unable to work out a voluntary shift swap with either of her two coworkers. After two months of unsu! ccessful attempts to resolve the scheduling dispute, including a threat by one coworker to resign if forced to again work every other weekend, the university discharged Ms. Crider, and she sued, asserting that it had violated Title VII by failing to reasonably accommodate her. The trial court granted summary judgment to the university, and in a 2-1 decision, the sixth circuit reversed, with the panel splitting over whether TWA v. Hardison foreclosed involuntary shift reassignments of coworkers to additional weekend work as a reasonable accommodation. The majority reasoned: Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation without undue hardship on the conduct of the employer's business. To show that an involuntary shift assignment would impose an undue hardship on an employer, the majority, relying on pre-Hardison circuit precedent, held that the employer was required to prove that involuntary reassignment would create a chaotic personnel problem rather than dissatisfaction among coworkers, and to do so, the university could not rely on the repeated threats by one of the two coworkers to resign since, per the panel, [t]he University provided nothing to show that Meador's threat was more than mere grumbling. The dissent argued that the involuntary reassignment to accommodate Crider would be discrimination against Meador and Rost in violation of Title VII and that in any event, the personnel problems arising from an involuntary reassignment of weekend work to the two remaining coworkers was more than an abstract burden on the employer. Should Title VII be construed to require an employer to compel objecting employees to work weekends to accommodate a coworker in the absence of a seniority system? Presumably an employer could not compel another religiously observant coworker to accept a reassignment that violated that employee's religious observances and practices, so does the majority's ruling require the employer to engage in religious discrimination by only reassigning employees who religious observances and practices do not foreclose weekend work? If so, what protection does Title VII offer to sabbatarian
RE: Parental rights and physical conduct
Chris, I think your answer goes beyond Marty's point. There is a difference between experiencing regret and being a member of a minority faith. If Jews and Muslims who circumcise their infant sons make up 2% of the population in a country, the rest of the population may think this practice is odd, but they won't experience regret about it because they are not circumcised. So the operative question would be whether the members of these minority faiths experience regret. And the answer to that question may be problematic in some ways. Would it count as regret if the concern is that people who are prejudiced against Jews can now identify the circumcised adult as a Jew? Don't we have to be careful here so that prejudice does not become the basis for justifying restrictions on religious liberty? AlanFrom: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Friday, July 06, 2012 10:59 AM To: 'Law Religion issues for Law Academics' Subject: RE: Parental rights and physical conduct Yes (to Marty.) I’m someone inclined toward Marty’s view, and I think the empirical question of regret is very important. Regret either way is important. If most circumcised men regret their infant circumcisions, then infant circumcision becomes harder to justify. Similarly, if most uncircumcised men regret not being circumcised as an infant, that too enters into it. It’s easy to say that an uncircumcised man can always get circumcised (and he can). But it requires surgery and anesthetic in a very sensitive place. And there are a lot of emotional sunk costs too. I’m generally a strong believer in regulatory exemptions for Free Exercise, even when the rest of the world is doing something totally different. But what the rest of the world is doing is very important here, because it goes to the burden on the child. If 30% of boys are circumcised, allowing me to circumcise my son seems an easy call. My son won’t be different from the other kids in his class; his future sexual partners won’t think of him as weird. But if only 2% are circumcised, it’s a different story. If it’s only 2% and those 2% are treated like freaks, then it’s a very different story. My understanding is that the circumcision rate in the US is still above 50%, though it’s below 50% in some of the western states. Changes in that are highly relevant. But given the demographics now, I’m inclined to think this is an easy call in favor of parental autonomy and free exercise. Marty/Eugene’s tattoo point is marvelous, I think. The numbers of 18-25 year olds with tattoos is staggering, something like 40%. If that rises to say 80%, then the tattooing of a child will seem more justifiable, because tattoo regret will probably drop. On the other hand, kids may regret the kind of tattoo that Mom and Dad wanted (and of course they will!), so I guess it’s still different than circumcision. Best, Chris ___ 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: Parental rights and physical conduct
I thought we were long past the argument that the only basis for protecting religious liberty was that the state had a favorable perspective on the religious belief and practice at issue -- whether it is saving a child's soul through baptism or fulfilling the obligation to circumcise an 8 day old Jewish boy. There are clear cases where the state can and should intervene to prevent child abuse or the imposition of unacceptable risks of harm on children -- whatever the parents motivation might be. No religious liberty exemption should be granted in such circumstances. Indeed, as Chip suggests, exemptions of this kind might well violate the Establishment Clause. But there are many other cases where the state exercises considerable discretion in deciding whether it should intervene and limit parental authority. The constitutional interest of parents in controlling the education and upbringing of their children is poorly defined and reasonable people would disagree on its scope and application in particular cases. In those cases, if I understand Chip correctly (and I appologize if if I have misunderstood his point), the fact that that a religious obligation or practice is involved should be irrelevent in deciding whether the state should intervene. If the burden of a religion specific accommodation for individuals does not violate the Establishment Clause, and clearly some religion specific accommodations that burden third parties satisfy that standard, we accept some such accommodations as permissible protection of the religious individuals autonomy and identity. Why isn't something like that analysis appropriate when we are discussing the autonomy and identity of religious families? Obviously, we can disagree about whether any specific accommodation of religious parents and families should be provided -- but why should we insist that the religious liberty and identity of the family has no bearing on these issues? Alan From: religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu [religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 9:50 AM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I think Howard's baptism example helps make my point, not his. No one thinks that full immersion of children in water for a very brief time (e.g., long enough to quickly rinse shampoo out of their hair, or to give them a swimming lesson about how to exhale underwater) is abusive per se. Of course, immersing a child in water with an intent to cause physical or psychological harm, or immersing a child in water without due care about the length of time of immersion, could well be actionable as a crime, or as an act of child abuse, leading to a change in custody. But none of those policies about parents' rights to immerse the child has anything to do with the salvation of the children's souls. The parents and faith community may care deeply about the fate of those souls, but the state is different -- it is barred from taking a view of the effect of immersion on a child's soul. So the rules (immerse if you choose, but use due care, and don't immerse with an intent to cause secular harm) are completely indifferent to religious motivation of the parties. And a religion-specific accommodation of such a practice -- i.e., full immersion of a very young child for 90 seconds is per se abusive, unless it's being done for purposes of baptism -- would be unconstitutional, because it would impose a serious risk of harm on non-consenting third parties (the children). See Estate of Thornton v. Caldor. ___ 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: Parental rights and physical conduct
If we could categorize all state action into these three categories, life would be a lot easier. But the parameters of case 2 are incredibly unclear as to what constitutes due care regarding the risk of harm. Say a state enacts a law prohibiting adults from providing minors alcoholic beverages. If this is category 3, there is no religious liberty issue because the law unacceptably interefers with the parents' rights. But what if a state concludes that this is category 2. Dad A gives his 13 year old four glasses of beer while they watch the ball game on television. I give my 13 yeal old son four glasses of wine during the Passover Seder. Let's assume there is roughly the same amount of alcohol involved (because the glasses at the Seder are small.) We have three choices. Dad A and I are convicted and sanctioned for violating the law. The state exempts me for religious liberty reasons, but holds Dad A liable. The law is unconstitutonal as applied to both of us because it interferes with parental autonomy. I think the second alternative is constitutional and is the best answer from a policy perspective. Chip, are you saying that the only permissible alternatives are both fathers going to jail or neither going to jail. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 11:42 AM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct In the context of abuse of children, religion just does not and should not matter to the state. There are three general cases: 1. The conduct is abusive per se (e.g., repeated and heavy beatings of a child). We don't and should not care whether the perpetrator claims religious justification. 2. The conduct is not abusive per se, but is done in an abusive or neglectful way (e.g., immersion in water with intent to harm, or without due care regarding the risk of harm). Once more, we don't and should not care whether the perpetrator claims religious justification. If the conduct is abusive or neglectful, it may have legal consequences, and religious motivation should not alter those consequences. 3. The conduct is neither abusive per se, nor is it done with intent to harm, or without due care regarding the risk of harm. Whether we like or admire this conduct, parents have the right to engage in it. Once more, for legal purposes, we don't and should not care whether the parent claims religious justification. Of course, for social purposes we might care -- that is, perhaps we would not be as critical once we understood the religious motivation. But that point of social awareness is outside the concern of the state. So, when, if ever, would religious motivation properly move some conduct by parents towards children either in or out of the categories of abuse or neglect? I still don't see it, which is why I have said this is about liberty, and not at all about religious liberty. From: religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu [religionlaw-bounces+aebrownstein=ucdavis@lists.ucla.edumailto:ucdavis@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edumailto:icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 9:50 AM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I think Howard's baptism example helps make my point, not his. No one thinks that full immersion of children in water for a very brief time (e.g., long enough to quickly rinse shampoo out of their hair, or to give them a swimming lesson about how to exhale underwater) is abusive per se. Of course, immersing a child in water with an intent to cause physical or psychological harm, or immersing a child in water without due care about the length of time of immersion, could well be actionable as a crime, or as an act of child abuse, leading to a change in custody. But none of those policies about parents' rights to immerse the child has anything to do with the salvation of the children's souls. The parents and faith community may care deeply about the fate of those souls, but the state is different -- it is barred from taking a view of the effect of immersion on a child's soul. So the rules (immerse if you choose, but use due care, and don't immerse with an intent to cause secular harm) are completely indifferent to religious motivation of the parties. And a religion-specific accommodation of such a practice -- i.e., full immersion of a very young child for 90 seconds is per se abusive, unless it's being done for purposes of baptism -- would be unconstitutional, because it would impose a serious risk of harm on non-consenting third parties (the children). See Estate of Thornton v. Caldor.
RE: Parental rights and physical conduct
I agree with most of what Chip says about hybrid rights and religious accommodation of rights protected activity. As a general principle, religious people should not receive preferential accommodations when exercising fundamental rights such as freedom of speech, or voting, or the right to marry or have children. Where he and I disagree, I think, is that I do not believe that courts protect parental control of the upbringing of children as a right in the same way that they protect speech and other fundamental rights. There is far too much discretion exercised by the state in this area of law and far too little rigor in the review applied to laws that interfere in one way or another with parental prerogatives for me to analogize parental autonomy to a fundamental right. Thus, I do not think that parents have a right to provide beer to children while watching sporting events on TV as part of a more general liberty interest in controlling the upbringing of their children. And I see little reason to provide an exemption from laws prohibiting the provision of alcohol to minors in this context as a policy matter -- other than the fact that enforcement of a no beer for kids rule in family rooms would be intrusive. I think that allowing parents to offer wine to children as part of a religious ceremony is different and more defensible because raising one's children as part of a religious family is an essential aspect of religious liberty that deserves respect and protection. Put simply, I would want more of a showing that harm exists or is risked before I forced parents to violate religious beliefs that involve families and children. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 2:44 PM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct If Smith's hybrid rights explanation of Yoder is all there is against my argument that religious motivation should add or subtract nothing from parental rights to engage in particular child-rearing practices, I'll happily rest my case. All I'm suggesting is that once we have a general set of constitutional rights to protect a practice, religious motivation for the practice should add or subtract nothing. The Phelps (in Snyder v. Phelps) would not be on weaker First A ground if their obnoxious protests were wholly secular. The children's rights context may be the strongest one for rejecting permissive, religion-specific accommodations, because of the third party harms. But it's not the only such context, with or without other enumerated rights in the picture (see Texas Monthly). ___ 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: German circumcision decision
I agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ 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: What parents may or may not do with regard to their children
Fair question, Eugene. I recognize that the state does intervene to protect children from some parental decisions that cause them physical or psychological harm or risk causing them physical or psychological harm. But I think the list of harm causing or potentially harm causing decisions which the state ignores -- and which have a greater propensity to cause harm to children than male circumcision is extremely large. For example, as far as I know the state does not actively intervene in parental decisions regarding diet or excessive exposure to the sun. The physical consequences of such decisions may be long term and irrevocable. The state permits parents to encourage their children to participate in recreational activities with significant risks of injury. Parents take young children with them while participating in high risk activities. The parent is permitted to sign the assumption of risk form for the child. Parents routinely make medical decisions for their children on which reasonable people and doctors differ. Moreover, I do not know, but I doubt that the state would prevent parents from scheduling plastic surgery for a child to improve his or her appearance. If the risk of injury to the child was as minimal as the risks associated with performing a circumcision, I would be surprised if the state intervened. Some dental procedures (typically experienced by children as unpleasant if not painful) serve aesthetic rather than medical purposes. The state allows parents to arrange for these services. The list could go on and on. While circumcision obviously has a physical consequence, I am unpersuaded that it harms the child. If the state limits its intervention in parental decision-making to a considerable extent out of respect for parental autonomy, and the question of whether circumcision harms the child is unresolved, I think respect for religious freedom and parental autonomy make this a relatively easy decision for me. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 01, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: What parents may or may not do with regard to their children Alan: But our legal system also bars parents from physically acting towards their children in various other ways. Parents may not beat their children beyond a certain point. Parents may not excise their girls’ genitalia. Parents may not consent to their children’s having sex before a certain age (in some states, that age is 18), or participating in making pornography. Parents may not consent to their children’s working in various jobs that impose even modest risk to health until a certain age. It’s possible that if parents wanted to change their children’s appearance in a permanent and material way, they wouldn’t be allowed to do that (except in situations where the appearance change is likely to be seen by outside observers as an improvement). If parents wanted to bind their daughter’s feet, I expect that would be forbidden. And while the alternative in all these cases if for the state to make the decision, that decision is generally “do not allow the physical actions until the child is old enough to decide for himself or herself” – a plausible conclusion, I think. So the question, it seems to me, is whether male circumcision should be treated more like, say, ear-piercing or teaching children some philosophy or religion, ore more like all the other things I described above. Eugene ___ 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: Providing public school credits for release-time religious classes
I agree with Eugene's concern about discrimination and the concern of other list members about release time programs that subject non-participants to dead time at public school. My daughter experienced the latter when she attended public school in Nova Scotia. There was no release time program offered for Jewish students and no educational instruction when Catholic and Protestant children went off for religious instruction -- provided by clergy at the public school. (My daughter had no complaints. She played with the hamsters in her classroom.) If those concerns are satisfied, I think the remaining issues depend a lot on the nature of the course and our understanding of what it means for a public educational institution to assign credit to an activity. The credit problem is particularly difficult since credit is a creation of the state. (I can imagine a school that awards limited credit for participation in social, religious, or political activities where the scope of acceptable activities resembles a public forum.) Let me suggest what I assume is the hardest case. If a religious private high school school awarded academic credit for attendance at worship services (on the Sabbath or during the weekday), could that count as satisfying the minimum academic requirements for receiving a high school diploma? May a public school accept those units if the student transfers to the public school? Would attendance at worship services be acceptable for release time purposes? (We can add an exam on the structure and meaning of the service if that is required.) The next difficult case would be classes designed to prepare a student for a religious ceremony or event. Would it be appropriate for a school to assign academic credit for Bar or Bat Mitzvah classes (or equivalent instruction in other faiths)? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, June 30, 2012 1:18 PM To: Law Religion issues for Law Academics Subject: RE: Providing public school credits for release-time religious classes I share some list members’ discomfort with Zorach, and with the South Carolina law that gives favored treatment to religious studies classes, rather than just releasing students to take a class at any other accredited school or at any unaccredited school if the class is certified by an accredited school. I’m sure I’m “hostile to separation” in Marci’s view, and though I’m entirely irreligious myself I am indeed hostile to the separation that Marci advocates. Yet I do think that this sort of discrimination in favor of religion ought to be seen as constitutionally suspect, and I regret that Zorach took a different view. But the argument below seems to me to go too far, because of the transfer student point raised by Rick and by the Fourth Circuit opinion. Say that someone transfers to a public school in the 11th grade, and to be entitled to so transfer he has to show some number of semester-hours of schoolwork at his prior school; and say that the prior school had a pervasively religious curriculum, so that many classes have a religious component. Is it really the case that the public school is constitutionally barred from accepting those semester-hours? I would think not, though I’d be happy to hear Marci’s view on the subject. Now perhaps there is some constitutional distinction between pure theology classes and mixed religious/nonreligious classes – but when it comes to funding programs, the Souter/Stevens/Brennan/Marshall wing has generally insisted that there is no such distinction. So it seems to me that the constitutional objection can’t be to schools accepting credit for religious instruction from other schools; the objection must be to schools doing so under programs that favor religious instruction. Eugene Marci Hamilton writes: On the merits, I don't see why or how the public schools can take frankly ecclesiastical courses from frankly religious schools for credit under existing doctrine. Now, if the argument is that the Court should and may abandon the Establishment Clause, let's be honest about that. It is well known that those hostile to separation are hoping this new Court will cut back on the Est Cl Under existing doctrine, these credits are a violation of the separation of church and state and the Memorial and Remonstrance. ___ 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
RE: Strict scrutiny, from Sherbert/Yoder to RFRA
Let me continue Mark and Eugene and Chris' thoughtful line of thinking here. First, it may, indeed, be appropriate to use some form of intermediate level of scrutiny in some free exercise cases. It may also be appropriate to use a higher or lower standard of review in other cases. It has never been clear to me why it so often seems to be assumed that all free eercise cases must be reviewed under the same standard of review. Certainly, in the free speech area we recognize that a more nuanced doctrine is necessary that applies different standards of review in different circumstances. Some variation in standards of review may be necessary and appropriate in the free exercise area as well. Second, if we are talking about statutory accommodations (such as RFRA), it seems to me that there is a confusing dissonance between the explicitly rigorous strict scrutiny standard that many statutes employ and the extent to which an accommodation will be permitted under the Establishment Clause. Even if a court interprets a state RFRA to require an accommodation because the state's interest cannot satisfy strict scrutiny review, this application of RFRA may violate the Establishment Clause if it goes too far in privileging religion and imposing unacceptable costs on non-beneficiaries. That's certainly how I understand the Cutter opinion and its frequent references to accommodations not imposing unacceptable burdens on third parties or public institutions. If the Establishment Clause limit on accommodation costs is less demanding than a compelling state interest requirement (e.g., courts might not consider avoiding those costs to constitute a compelling state interest for statutory purposes), the constitutional standard will cap the accommodation whatever the statute says. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Sunday, June 17, 2012 1:36 PM To: 'Law Religion issues for Law Academics' Subject: RE: Strict scrutiny, from Sherbert/Yoder to RFRA I wanted to send out a thought relating to earlier posts by Mark Graber and Eugene Volokh. They suggest an intermediate standard of review, somewhere between strict scrutiny and Smith. I think they are right on the key point. The usual “strict scrutiny” standard – i.e., strict in theory, fatal in fact – won’t work for free exercise. It’s too harsh a standard. I think defenders of regulatory exceptions generally believe that. But we also all know that, in the Shebert/Yoder days, the test wasn’t applied like that. “Strict in theory, feeble in fact,” as people say. Justice Scalia says in Smith that this is a problem—that it won’t work to have a “compelling interest” test in Free Exercise that is less stringent that the “compelling interest” test in Free Speech. It will either (1) water down the test in the Free Speech setting, or (2) improperly heighten the test in the Free Exercise setting. Judges will be confused between the two domains, and one domain will screw the other up. Eugene says something similar below. But I don’t know quite why that is; I haven’t seen any evidence of confusion. It seems to me that we could quite sensibly have a compelling-interest test in Free Exercise that is lighter than the compelling-interest test in other areas. The compelling-interest test applies differently in different domains: “Context matters in applying the compelling interest test.” Gonzales v. O Centro, 546 U.S. 418, 431 (2006). Grutter and Lawrence were decided the same term. Grutter upheld an affirmative action program under a deferential version of strict scrutiny; Lawrence struck down a sodomy law under an aggressive version of rational basis. That’s confusing, but no judge tasked with actually applying Grutter will be confused by Lawrence (or vice versa). And what could be more confusing than the current situation? Right now, we have two different compelling-interest tests in the area of Free Exercise alone. Gonzales v. UDV applied RFRA’s compelling-interest test and said that it required “sensible balances” between religious liberty and governmental interests. (Gonzales repeats “sensible balances” three times.) That language has been used in state RFRA cases as well. That’s light years away from Lukumi’s compelling-interest test, which really is strict-in-theory-and-fatal-in-fact. But having two different compelling-interest tests seems to have worked fine for Free Exercise. Students get the difference between them. We get it. Courts get it. I mean, occasionally a plaintiff will cite the Lukumi line of cases in support of his RFRA or state RFRA claim, thereby making it seem as if state RFRAs create that sort of ruthless presumption of invalidity. But I don’t think courts are fooled. (One great example of a court not being fooled is State v. Hardesty
RE: Religious exemptions in ND
Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ 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: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels
The news story doesn't give us a lot of detail as to exactly what the pastor said in this case nor does it tell us much about his parishioners. But if the pastor's instructions to his parishioners are to do something unlawful if a certain pre-condition is satisfied and the pre-condition is sufficiently common that it will almost certainly occur in the very near future, I'm not sure I see the Brandenburg problem. Infants will cry and will fail to sit still. If a speaker instructs a group of parents with very young children to stick their children's hand in boiling water if they cry or fail to sit still, that seems pretty imminent to me. If the parishioners follow his instructions and he ratifies their conduct and tells them to continue to do so, I think that's more than abstract advocacy. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 4:31 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels I don’t think that strict scrutiny can justify restrictions that are forbidden by Brandenburg. After all, in most advocacy-of-crime cases there’s a compelling interest in preventing crime, and a plausible argument that alternatives to suppression of advocacy – e.g., counterspeech and punishment of the criminal conduct – aren’t going to be as effective as suppression (plus those alternatives). Brandenburg, I think, is a judgment that speech restriction is just not a permissible means of serving the compelling interests, see generally http://www.law.ucla.edu/volokh/scrutiny.htm pts. II.Bhttp://www.law.ucla.edu/volokh/scrutiny.htm%20pts.%20II.B III (Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997)). And I think that’s as true for speech advocating child abuse as for speech praising rioters, speech advocating the propriety of holy war, and the like. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Sunday, May 13, 2012 4:24 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels Eugene-what about strict scrutiny? I think there is a compelling interest in protecting children from being hit with wooden dowels Given the hidden nature of most such abuse, there is unlikely to be a lesser restrictive method to ensure children are not harmed. Marci On May 13, 2012, at 7:10 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct – even illegal conduct – doesn’t fit within the Brandenburg exception, because it isn’t intended to yield imminent lawless conduct; and I don’t think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it’s possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana is a sacrament be prosecuted for conspiracy to engage in criminal possession or receipt of marijuana? Could imams who preach the propriety of jihad be prosecuted for conspiracy to engage in jihad, just based on the teaching alone? Eugene http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old. Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church's literal interpretation of the Bible. The motion to dismiss the charges alleged Caminiti had been deprived
RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
I know little about family law, but I have a couple of thoughts on this issue. First, as to the religious stability issue, I would not say it is irrelevant to custody issues. But the reality of religion in the United States today is that many people change religious affiliation entirely and a much larger number become more or less observant during their lives. Often these changes in religious beliefs will occur in an intact family and one spouse may alter his or her beliefs while the other does not. That may impose some stress on children, but it is a change in their family that they will have to deal with. If this is sufficiently common a scenario today, it is hard to justify making religious stability a critical factor in custody proceedings. Some religious instability may simply be part of life today. Second, the risk of coercion and manipulation is difficult to avoid. Not only will some spouses who change their religious beliefs fear getting divorced because they would risk losing custody of their children by doing so. I can also imagine one spouse pressuring another not to change his or her religious behavior within the marriage. Spouse A tells Spouse B that if B departs from the family's current religious practice, A will seek a divorce and demand custody of the kids. Eugene recognizes that the rule may create such pressures. I may assign more weight to this concern than he does. But this is certainly a situation where their may be costs we would prefer to avoid whichever rule we accept. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, April 20, 2012 1:40 PM To: Law Religion issues for Law Academics Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes I take it that any attempt to force someone to marry at 13 would be a serious felony in all states; indeed, the column doesn't allege anything like that, and the one Satmar woman whose age was mentioned in the column (the author) was 19 when she married. Rather, the question raised by any proposed legal weight against stability in an extremist religion - as applied to the NJ.com column -- is what the legal system should do when there's a culture that teaches children viewpoints about legal behavior that the majority sees as harmful to the young adults whom the children will become, and then reinforces this teaching through social pressure on adults. (There's a related question that arises when the culture teaches viewpoints about the propriety of possible illegal behavior in the future, such as of civil disobedience by adults, or violent jihad as adults.) Should the legal system conclude that such teachings are harmful to the child, and thus consider the viewpoints of parental teachings in custody decisions - or even (if this is really analogous to education and health) constrain parental teachings within intact families? I don't think that analogies to forced marriages at age 13 are particularly illuminating as to that question. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Friday, April 20, 2012 1:03 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes The alternative is to focus on what is in the best interests of the child, e.g., education, health. Not being forced to get married at 13 and have children... Marci The religious status quo could also be a non-observant or explicitly atheistic or agnostic household, which would also have to be respected under the rule that Eugene supports. The alternative is for the courts to determine which religions are extremist, a questionable role for the judiciary. Richard T. Foltin Director of National and Legislative Affairs Office of Government and International Affairs p: 202-785-5463, f: 202-659-9896 folt...@ajc.orgmailto:folt...@ajc.org Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Richard Foltin folt...@ajc.orgmailto:folt...@ajc.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Fri, Apr 20, 2012 8:32 am Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes The religious status quo could also be a non-observant or explicitly atheistic or agnostic household, which would also have to be respected under the rule that Eugene supports
RE: Exemptions and accommodations
Doug's distinction between exemptions and accommodations is helpful, but the cause of the problem isn't limited to free exercise cases. If we are talking about freedom of speech, for example, many people would describe the decision of a bookstore to reject a request to carry particular books in its inventory as censorship, not a failure to accommodate the author and her readers. The exclusion of less popular candidates from privately organized debates is similarly decried as burdening freedom of speech, not the failure to accommodate the excluded speaker.. When government provides police to maintain order at political events involving unpopular speakers we typically describe this conduct as protecting freedom of speech, not the accommodation of unpopular speakers. When government sets up restrictive rules limiting access to non-public forums, we describe its decision as burdening freedom of speech, not failing to accommodate speakers seeking access to public property. Perhaps we should be much more careful about distinguishing between requests to be left alone and requests for affirmative action to facilitate the exercise of different freedoms and rights. The failure to do so, however, is fairly widespread. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, March 05, 2012 12:16 PM To: 'Law Religion issues for Law Academics' Subject: Exemptions and accommodations Eugene's distinction between the restaurant letting the Jewish member of the party bring in his own kosher meal, and the restaurant changing its own kitchen to provide a kosher meal for him, illustrates the difference between a simple exemption from a rule and a the institution taking affirmative steps to accommodate someone else's religious needs. This distinction is why I think it is a mistake to talk about exemptions as accommodations. One who seeks only an exemption is merely asking to be left alone, unregulated in some way. There may be reasons not to leave him alone, if he is harming those around him. But to be left alone is all he is asking for. One who seeks affirmative conduct by others to enable or facilitate his religious observance is asking for something more, and accommodation would be a good word to describe those cases, if we had not already used the word to describe simple exemptions. Accommodation has also been used widely and variously to describe all sorts of other things that religious folks sometimes want, up to and including school-sponsored prayer, and the range of uses has deprived the word of any very precise meaning. The Court has repeatedly used accommodation to describe exemption cases, and much of the scholarly literature uses it, so I suppose we are stuck with it. But it has always seemed to me to be a mistake. Part of what makes the calendar cases hard is that they so often require active accommodation and not merely exemption. When the event must be rescheduled for everyone, that is more complicated, and more costly, than when the religious individual merely seeks to have his absence excused. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Religious liberty in demands that others change their behavior to follow one's religious beliefs
Eugene, I'm not sure I understand why the motive or purpose of the actor controls whether the result of the actor's conduct should be viewed as a burden on religious liberty or not. I might assign much less weight to the discriminating actor's interest and consider his conduct more morally reprehensible. But if I focus on the impact of the decision, there would be an equivalent material burden on the ability of the religious actor to practice his faith in both cases. Suppose the only Soccer League for children is in a town where very few Jews live. The League is private. Games and practices are scheduled for Tuesday, Thursday and Saturday afternoon. The League insists that players must agree to show up for all scheduled games or practices or they cannot participate in the League's activities. Observant Jews ask for an accommodation. Without it, their children will not be able to participate and they are too few in number to create their own league. In hypo 1, the League refuses the accommodation. It explains that it just doesn't care enough about the needs and interests of the Jewish families to change the way they have traditionally done things in town. The Jewish families religious liberty is burdened by the League's decision because it requires them to give up an opportunity they value in order to obey the dictates of their faith. It's not a burden that deprives anyone of the necessities of life. But it's a burden. In hypo 2, the League refuses the accommodation and explains that in fact its members are delighted that their decision will have the result of preventing Jewish children from joining the League. Is that more of a burden on religious liberty? Why? Under Smith, discrimination against a religion with regard to a matter that is of minor importance to the members of that faith invokes strict scrutiny. But a neutral law that makes it impossible for members of the religion to practice their faith receives rational basis review. If we are talking only about burdens, not the justifications for burdens, why is the burden on the religious liberty of the individuals in question greater in the former case compared to the latter case. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, March 04, 2012 4:14 PM To: Law Religion issues for Law Academics Subject: Religious liberty in demands that others change their behavior to follow one's religious beliefs Alan: You give examples of deliberate discrimination, but I thought we were generally speaking about decisions not to change one's own affirmative practices -- not just one's prohibitions (e.g., no-headgear rules) but also one's choices to, for instance, play on a particular day -- in order to accommodate others' religious demands. Here, it's not clear to me that a private actor's decision not to accommodate is properly seen as a violation of religious liberty. Let's consider an example: Say that either a patron or an employee feels a religious objection to sexually suggestive materials -- or religiously blasphemous materials -- posted as part of a bar's décor, and demands that the bar remove the material in order to make the bar a place where they would feel comfortable eating or visiting. (That's Lambert v. Condor Manufacturing, though in the context of a bar rather than a shop floor.) I don't think that the bar owner can properly be faulted for denying the patron's or employee's religious liberty here; religious liberty is not the label, I think, for an entitlement to demand that others change their behavior to fit one's religious preferences. Even if a Title VII duty of reasonable accommodation would be triggered on such facts -- I think it shouldn't be, for Free Speech Clause reasons, but others might disagree with me on the constitutional question and also conclude that on the facts changing the doctor won't impose much of a financial burden on the bar owner -- I don't think the reason is the employee's religious liberty. And the same is true, I think, when someone demands that a private association change its schedule to accommodate one's beliefs, or change the food served at its functions, or remove supposedly blasphemous iconography. Eugene ___ 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: Requirement that cabbies transport alcohol = tiny burden?
In my judgment, Balkanization is much more likely to occur when religious minorities are told that the only way that the can obtain accommodations of their religious practices is by living in a community in which there are enough members of their faith to exercise significant political power. Religious accommodations allow people of different faiths to live together in religiously heterogeneous, integrated communities. The rejection of accommodations not only forces people to find another line of work. It persuades them that they need to find another place to live. That’s Balkanization. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ 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: Basketball tournaments on the Sabbath
I don't view these issues as absolute Yes or No questions. I think tournament organizers should take the religious beliefs of participants into account, but there will be situations where the cost to others of particular accommodations will be too high for the requested accommodation to be granted. Some accommodations are relatively low cost. If two semi-final games are going to be played Saturday afternoon and evening, why shouldn't the organizers accommodate the needs of a religious school's team that observes Saturday as the Sabbath and schedule their game for the evening rather the afternoon? Some rejections of accommodations create unnecessary burdens for religious schools. In the Oregon litigation I referenced earlier, the tournament organizers refused to allow the Adventist School's team to play in any tournament games unless they would commit to playing every game scheduled even if it fell on the Sabbath. Other harder cases may involve higher costs. Even here, however, sometimes there may be creative solutions that mitigate burdens or spread costs. If we value religious liberty and are concerned about the exclusion and isolation of religious minorities, we should take accommodation problems seriously -- although that does not mean that the accommodation will always be granted. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilto...@aol.com] Sent: Sunday, March 04, 2012 7:33 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath I agree with Paul here, and with the TAPPs ultimate decision which they should have reached earlier. Rick seemed to imply that I and others might not agree with it so I wanted to clarify my comments As I said originally, I was asking the big picture question. These events have many moving parts I don't think common sense is enough of an answer. I will return to the harder question Do list participants expect state and/or national tournaments to be reorganized according to the religious beliefs of some of the teams or players? My daughter and I are at the National Field Hockey Indoor Tournament this weekend. It is a longstanding annual event. 120 out of 300 private club teams competitively qualify annually. And when the venue and timing is chosen no one knows who is going to be attending. Families and coaches can attend because a weekend does not conflict w most work and school schedules. Should such an event change its days of operation to avoid religious conflicts? I think the answer has to be noOr should they wait for the ad hoc request? Or should they be able to say to all clubs we can't accommodate religious or other requests because of the complexity of the event? A la Bowen v Roy and Lee? Folks may be tired of this thread at this point but I am interested in any thoughts Marci ___ 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: Basketball tournaments on the Sabbath
Eugene is correct that the more private the program, the less obligation there is to accommodate others. But I wasn't focusing on the TAPPS program. I was trying to respond to Marci's more general question. The tournament organizers in the Oregon case I referenced were state actors. In other cases, state institutions may provide much of the funding for tournament events, provide access to public venues where games are played and generally facilitate and support the tournament. The greater the state involvement in the tournament, the more appropriate the basis for a religious liberty argument. Even in a private situation, say a commercial context, I think it is fair to talk about religious liberty being burdened if employers refuse to hire members of a particular faith or motels will not rent them rooms etc. If the employer's decision is grounded on his or her own religious beliefs, religious liberty may be on both sides. If religious practice and belief are not justifications for a refusal to accommodate, but economic or administrative convenience concerns are the basis for denying an accommodation, I have no trouble talking about religious liberty (or religious equality) being weighed against economic liberty or other private interests. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, March 04, 2012 2:17 PM To: Law Religion issues for Law Academics Subject: RE: Basketball tournaments on the Sabbath I wonder whether religious liberty is exactly the right term here, where we're talking about access to a privately provided program, and one that is hardly essential for life or livelihood. The question isn't just whether Orthodox Jews are free to live as good Orthodox Jews, or even are free to get broadly available benefits of the welfare state that are important to survival (such as unemployment compensation). Rather, the question is whether other private parties should adapt their behavior -- their exercise of their own liberty -- to accommodate Orthodox Jews' felt religious obligations. That's an interesting question, and the answer might well be that they should so adapt their behavior, if it's a low-cost adaptation, out of hospitality or kindness or application of the Golden Rule or some such. But I think that talk of liberty here is not very helpful. Eugene From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Sunday, March 04, 2012 12:33 PM To: Law Religion issues for Law Academics Subject: RE: Basketball tournaments on the Sabbath I don't view these issues as absolute Yes or No questions. I think tournament organizers should take the religious beliefs of participants into account, but there will be situations where the cost to others of particular accommodations will be too high for the requested accommodation to be granted. Some accommodations are relatively low cost. If two semi-final games are going to be played Saturday afternoon and evening, why shouldn't the organizers accommodate the needs of a religious school's team that observes Saturday as the Sabbath and schedule their game for the evening rather the afternoon? Some rejections of accommodations create unnecessary burdens for religious schools. In the Oregon litigation I referenced earlier, the tournament organizers refused to allow the Adventist School's team to play in any tournament games unless they would commit to playing every game scheduled even if it fell on the Sabbath. Other harder cases may involve higher costs. Even here, however, sometimes there may be creative solutions that mitigate burdens or spread costs. If we value religious liberty and are concerned about the exclusion and isolation of religious minorities, we should take accommodation problems seriously -- although that does not mean that the accommodation will always be granted. Alan Brownstein ___ 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
RE: Basketball tournaments on the Sabbath
A somewhat similar lawsuit was litigated by students attending the Portland Adventist Academy (and their parents) against the Oregon State Activities Association which is a state actor. After 8 years of litigation, the students succeeded in their state anti-discrimination claims. See Nakashima v. Bd. Of Educ., 334 Or. 487 (2008) Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, March 02, 2012 11:48 AM To: 'Law Religion issues for Law Academics' Subject: Basketball tournaments on the Sabbath Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint's state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side's state action theory is very weak. But they had to file the lawsuit before common sense could prevail. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Contraceptives and gender discrimination
I will try to write more clearly since so many posts seem to me at least to be ships crossing at night. I think it would help if we distinguish three things. There are burdens on religious liberty which may not require justification under statutory law or constitutional law but which might justify discretionary accommodations. That, after all, is what the Obama administration has done with its revised regulations. Here I find the suggestion that we should only provide accommodations to religious individuals with the fortitude to maintain their faith against significant duress to be strikingly inconsistent with the way we think about dignitary interests and rights in other contexts. Rights and legislative respect aren't just for the strong. They aren't reserved for heroes and martyrs. They apply to the rest of us as well. There are also substantial burdens that impose a burden of justification under either statutory or constitutional law. Here, as Eugene as already noted, there is free exercise case law that characterizes the payment of taxes that the believer understands to violate his religious obligations as a substantial burden. There is also Establishment Clause case law that for decades has recognized a taxpayer's religious liberty interest in not having taxes used for religious purposes. (Historically, earmarked taxes were the core problem here.) One can challenge both lines of authority, but they certainly suggest a range of legitimate understandings of what constitutes a substantial burden on religion. Finally, there is the question of whether the state can justify the imposition of a substantial burden on religion (typically by explaining of the importance of the interests furthered by denying an exemption and the lack of alternative means to accomplish that goal.) I noted in my earlier post that the state has strong justifications for denying tax exemptions in many cases. But this regulation isn't a tax. Moreover, the allegedly modest cost for providing the disputed coverage that Marty describes cuts both ways. It suggests that the state's interest in imposing this mandate on religious institutions can be achieved at little cost through alternative means. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 4:30 AM To: Law Religion issues for Law Academics Subject: Re: Contraceptives and gender discrimination Well, if Alan is right that there is a substantial burden every time tax dollars are used by the state on something proscribed by someone's religion, then the substantial burden component of RFRA is simply an empty vessel -- or, in any event, it will be satisfied regularly in countless ordinary instances of all states' (and the federal government's) spending programs. I don't think that can be right. The question, instead, is whether the compelled taxation itself substantially burdens the exercise of one's religion. I assume the answer to that is generally no, because religions traditionally have not treated such civil obligations of payment as implicating serious moral injunctions imposed upon the religious taxpayers, seeing as how the decision to apply the money to the activity in question is always mediated, often several times over, by the choices of others (e.g., legislators, government bureaucrats, private parties who are given the option of using the funds for various forms of health care, etc.). OK, but then Alan asks: What about if the tax itself is earmarked specifically for expenditure on the proscribed purpose? Good question -- I wonder how many religions would see that as raising a materially different problem of complicity by the feepayer or taxpayer than in the case of the general tax. Not many, I suspect, but perhaps I'm wrong. (I'd greatly welcome Catholic and other religious perspectives on this question -- it's relevant to something I'm working on.) But thankfully, we don't have to resolve that question here, since the cost to the employer of sponsoring a health insurance plan is not earmarked for contraception -- anything but. The total collective expenditure by the insurance company on employees' contraceptives will be a drop in the proverbial ocean, since contraceptives are but one, woefully insignificant and relatively inexpensive, covered service among countless others, many of which are very, very expensive. Indeed, I'd be surprised if the inclusion of contraceptive coverage affects the cost of sponsoring the insurance plan (the employer's share of the premium, which I don't believe would be compelled by federal law, in any event) at all -- not worth the dime, so to speak. On Mon, Feb 13, 2012 at 1:26 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: I have to admit that as long as we are talking about private resources, I have a hard time understanding
RE: FW: RFRA substantial burden analysis
I agree with Eugene's post, but I'd like to add a few modest points to reinforce his comments. (Full disclosure in advance: These aren't strictly observations about law.) In my experience there is sometimes a difference between abstract plausibility and patterns of human behavior. I don't know, for example, whether it is plausible for religious individuals to demand more from their institutions than they do of themselves. But I think they often do so. The overwhelming majority of the members of my Reform Synagogue do not keep kosher or observe the Sabbath. But they are adamant that the Synagogue does both. I also think that religious commitments aren't always rational. Scripture can be subject to multiple interpretations. Some interpretations may be more convincing to us than others for reasons that are hard to explain even to ourselves. Does that mean these commitments should be ignored by the state, even with respect to discretionary accommodations? Finally, I think it is a mistake to consider (or assume) the harm to others that granting an exemption may cause when determining whether there is a burden on religious exercise that may require accommodation for two reasons. First, considering the harm to others may prevent the decision maker from recognizing the actual extent of the burden on religious exercise. But if are going to decide to burden religious freedom, we should at least be fully cognizant of the extent to which we are doing so when we deny an exemption. Second, recognizing the burden on religious exercise can force the decision maker to more carefully determine whether there really will be harm to others if the exemption is granted or how that harm might be substantially mitigated. Dismissing a burden as unworthy of recognition substantially reduces the state's need to evaluate the importance of its interest and the means it has chosen to further that interest. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 14, 2012 9:36 PM To: Law Religion issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis Marty: Doesn't this all depend on what you mean by facially plausible in whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden
RE: contraceptives and RFRA
With regard to exemptions from an expensive obligation and their propensity to result in sham claims, I think there are ways to structure an exemption to mitigate if not eliminate that problem. The individuals or institutions seeking an exemption have a right to religious liberty - to not having to act in ways that violate their faith. They have no right to be relieved of the same level of material burdens that other similarly situated individuals and institutions must bear. Accordingly, it might be appropriate to condition an exemption on the religious individual or institution directing the secular benefits it receives from the exemption to some other public good (that is consistent with its religious beliefs.) We do something like this when we require conscientious objectors to perform alternative service as a condition to their being exempt from military conscription (although it is clearly not a complete quid quo pro.) If the secular value of the exemption has to be reallocated to other public goods, that would discourage sham exemptions in many cases. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Wednesday, February 15, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: Re: contraceptives and RFRA The application of strict scrutiny, and its outcome, would seem to be different from Lee. To the chagrin of many who would have liked a system of universal social/medical insurance, the ACA does not create such a system. Through a complicated combination of provisions, it both builds on top of employment-based insurance in some ways, and also supplements/builds next to it in other ways. It has lots of parts, and changes in one area can be addressed through changes in other areas. If some employees cannot get insurance through their employers, for example, they can purchase it on an exchange. If some employees cannot get free contraception through their employer's health plan, rulemaking or legislation can provide it some other way (e.g., through the government itself, or through purchases on the market followed by reimbursement through the tax system-depends on which of many policy alternatives the HHS or Congress pursues). There is no risk of a death spiral for the system. And this leads to an important element of exemption analysis that Lee fails to exemplify. When applying strict scrutiny in response to a specific religious objection, the unit of analysis should not be the system as a whole (the outer boundaries of which would, in any event, be much harder to define in the case of the ACA than the SSA), but rather the objectionable part of the system that the exemption-seeker wants to avoid. For the specific aspects of the free preventive services at issue in the contraceptives debate, then, the appropriate inquiries would seem to be: What compelling interest does the federal government seek to achieve in requiring all large employers, including those with religious objections, to offer a policy containing every single one of the required terms for preventive services? Are there less restrictive means of accomplishing _that_ compelling interest? (To the extent that the Administration's position announced last Friday represented a meaningful change from the original mandate-which I understand there are different views about-the original mandate would apparently have failed the least restrictive means test.) Two smaller points: (1) The extent to which administrative difficulties and others arising out of a scheme of judicially administered exemptions through the RFRA would gut the system depends on how that scheme is designed. If it is built ex ante to avoid predictable widespread burdens on religion that would trigger RFRA claims, the judiciary's effect will be limited to mopping up outliers. (2) The contraceptives mandate does not appear to be an expensive obligation that would invite fraudulent claims of exemption. The Interim Final Rule (http://www.ofr.gov/OFRUpload/OFRData/2012-03547_PI.pdf) mentions a number of studies it describes as showing that there are significant cost savings to employers from the coverage of contraceptives. I accept that exemptions could be invoked in an attempt to avoid other types of obligations, but sincerity still provides some limit, and the HHS (or a court) can be deferential without being entirely credulous. I lack the imagination to think about what credible claims of exemption would be out there for very expensive services, but suspect that there could be ways to either grant such exemptions without causing systemic risk or to design the original rules so that such exemptions would not be needed. At the very least, I would like to think about specifics in this regard before considering an alternative approach to exemption analysis more generally. Thanks for moving the conversation forward
RE: Contraceptives and gender discrimination
I have to admit that as long as we are talking about private resources, I have a hard time understanding the argument that there is no burden on religious institutions here. The private resources of religious institutions are dedicated to conduct obligated by or at least consistent with religious beliefs and doctrine. How can it not be a burden on the institution's religious liberty for the state to require those resources to be used in a way that violates the religious principles to which the institution is committed. As for the analogy to taxes, I have always though there was a burden here -although it is attenuated, difficult to mitigate, and probably overridden by important state interests. But wouldn't a tax imposed on a class including religious institutions that was earmarked for a specific purpose -such as providing contraceptive services-raise a more difficult question? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, February 13, 2012 5:50 AM To: Marc DeGirolami Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law Religion issues for Law Academics; Con Law Prof list Subject: Re: Contraceptives and gender discrimination On the burden question -- Religious entities may limit hiring to co-religionists, and then make their best efforts to enforce religious norms against employees. Doesn't that option make the burden of the HHS policy far less substantial? I think a common reaction to the religious liberty claim being advanced here is its leveraging effect on employees who are not of the faith. So even if some faiths have a religious mission to serve others, do they similarly have a religious mission to employ others? Or is it their religious mission to impede access to contraception by all, whether or not of the faith? If it's the latter, I don't know why their position is any different from or stronger than taxpayers who don't want to to support what they see as immoral activity by their government. ___ 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: Contraceptives and gender discrimination
Steve, I'm not trying to duck your hypo, but there are a lot of sub-questions in your example. First, are we discussing what current constitutional law and statutory law requires? Are we talking about what I think the First Amendment and statutory law should require? Or are we asking the more specific, normative question of whether a religious accommodation should be granted in this instance, and, if so, what would that accommodation look like. If the question is whether the government's demand that certain standards of accepted medical practice must be followed in order for a religiously affiliated hospital to receive government funds can burden religious liberty in a significant way, I think the answer is clearly Yes. What should be done about that burden is a separate question that depends on the importance of that standard and the alternatives available to the state to further its interests. If the government denies all federal funding, including medicare reimbursement, to any hospital that permits the circumcision of male infants- do you think that requirement burdens the religious liberty of Jewish hospitals? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, February 13, 2012 1:36 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraceptives and gender discrimination Alan, I'm not denying the sincerity of those who truly see this as a religious liberty issue. I'm just saying that there are also many people in the political arena on this issue who are just crying crocodile tears. My concern is with the consistency of logic behind the argument from religious liberty. How do you feel about my hypo? Can the government demand certain standards of accepted medical practice in exchange for a flow of funds to a religiously affiliated hospital? If so, is that a more acceptable infringement? From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 11:25 AM To: Law Religion issues for Law Academics Subject: RE: Contraceptives and gender discrimination Any legitimate issue can be manipulated politically. That doesn't stop it from being a legitimate issue. There is a religious left in this country. It frequently takes liberal positions on culture war issues. Many of its members believe the contraceptive services mandate raises a serious religious liberty issue. Those of us who take this position certainly should be prepared to have our views challenged on the merits. But it is more than a bit disconcerting to be lumped together with Obama's opponents as painting this as an assault on religious liberty. This issue has been litigated in state courts a decade ago. It was a religious liberty issue than and it is a religious liberty issue now. Alan Brownstein From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, February 13, 2012 12:51 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraceptives and gender discrimination What if a hospital is run by a religious group that believes doctrinally and sincerely in not using advanced technology or extraordinary interventions to prolong human life. In response, the government says, no, if you want to receive federal funds, you'll employ conventional medical standards and treatments. This burdens the institution's religious liberty by requiring it to use resources in a way that violates its religious principles, doesn't it? Yet in this case, it's highly doubtful that there would be any hew and cry about the sect's religious liberty. Obama's opponents and the Catholic hierarchy have done an effective job painting this as an assult on religious liberty. But let's be honest, this is really about controversial (i.e., those that remain part of the culture wars) v. non-controversial government mandates. If a religious group chooses to operate in the public sphere by running hospitals and universities, it gives up some of its claim to be free of generally applicable government policies and regulation. I had thought that principle was reasonably well settled. Some might say, well yes, if the religious group is running a McDonald's franchise, that's different. But why should profit or tax status be the relevant consideration? Steve Sanders From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 10:27 AM To: Law
RE: Contraceptives and gender discrimination
Any legitimate issue can be manipulated politically. That doesn't stop it from being a legitimate issue. There is a religious left in this country. It frequently takes liberal positions on culture war issues. Many of its members believe the contraceptive services mandate raises a serious religious liberty issue. Those of us who take this position certainly should be prepared to have our views challenged on the merits. But it is more than a bit disconcerting to be lumped together with Obama's opponents as painting this as an assault on religious liberty. This issue has been litigated in state courts a decade ago. It was a religious liberty issue than and it is a religious liberty issue now. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, February 13, 2012 12:51 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraceptives and gender discrimination What if a hospital is run by a religious group that believes doctrinally and sincerely in not using advanced technology or extraordinary interventions to prolong human life. In response, the government says, no, if you want to receive federal funds, you'll employ conventional medical standards and treatments. This burdens the institution's religious liberty by requiring it to use resources in a way that violates its religious principles, doesn't it? Yet in this case, it's highly doubtful that there would be any hew and cry about the sect's religious liberty. Obama's opponents and the Catholic hierarchy have done an effective job painting this as an assult on religious liberty. But let's be honest, this is really about controversial (i.e., those that remain part of the culture wars) v. non-controversial government mandates. If a religious group chooses to operate in the public sphere by running hospitals and universities, it gives up some of its claim to be free of generally applicable government policies and regulation. I had thought that principle was reasonably well settled. Some might say, well yes, if the religious group is running a McDonald's franchise, that's different. But why should profit or tax status be the relevant consideration? Steve Sanders From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 10:27 AM To: Law Religion issues for Law Academics Subject: RE: Contraceptives and gender discrimination I have to admit that as long as we are talking about private resources, I have a hard time understanding the argument that there is no burden on religious institutions here. The private resources of religious institutions are dedicated to conduct obligated by or at least consistent with religious beliefs and doctrine. How can it not be a burden on the institution's religious liberty for the state to require those resources to be used in a way that violates the religious principles to which the institution is committed. As for the analogy to taxes, I have always though there was a burden here -although it is attenuated, difficult to mitigate, and probably overridden by important state interests. But wouldn't a tax imposed on a class including religious institutions that was earmarked for a specific purpose -such as providing contraceptive services-raise a more difficult question? Alan Brownstein ___ 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: Contraceptives and gender discrimination
I will try to write more clearly since so many posts seem to me at least to be ships crossing at night. I think it would help if we distinguish three things. There are burdens on religious liberty which may not require justification under statutory law or constitutional law but which might justify discretionary accommodations. That, after all, is what the Obama administration has done with its revised regulations. Here I find the suggestion that we should only provide accommodations to religious individuals with the fortitude to maintain their faith against significant duress to be strikingly inconsistent with the way we think about dignitary interests and rights in other contexts. Rights and legislative respect aren't just for the strong. They aren't reserved for heroes and martyrs. They apply to the rest of us as well. There are also substantial burdens that impose a burden of justification under either statutory or constitutional law. Here, as Eugene as already noted, there is free exercise case law that characterizes the payment of taxes that the believer understands to violate his religious obligations as a substantial burden. There is also Establishment Clause case law that for decades has recognized a taxpayer's religious liberty interest in not having taxes used for religious purposes. (Historically, earmarked taxes were the core problem here.) One can challenge both lines of authority, but they certainly suggest a range of legitimate understandings of what constitutes a substantial burden on religion. Finally, there is the question of whether the state can justify the imposition of a substantial burden on religion (typically by explaining of the importance of the interests furthered by denying an exemption and the lack of alternative means to accomplish that goal.) I noted in my earlier post that the state has strong justifications for denying tax exemptions in many cases. But this regulation isn't a tax. Moreover, the allegedly modest cost for providing the disputed coverage that Marty describes cuts both ways. It suggests that the state's interest in imposing this mandate on religious institutions can be achieved at little cost through alternative means. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 4:30 AM To: Law Religion issues for Law Academics Subject: Re: Contraceptives and gender discrimination Well, if Alan is right that there is a substantial burden every time tax dollars are used by the state on something proscribed by someone's religion, then the substantial burden component of RFRA is simply an empty vessel -- or, in any event, it will be satisfied regularly in countless ordinary instances of all states' (and the federal government's) spending programs. I don't think that can be right. The question, instead, is whether the compelled taxation itself substantially burdens the exercise of one's religion. I assume the answer to that is generally no, because religions traditionally have not treated such civil obligations of payment as implicating serious moral injunctions imposed upon the religious taxpayers, seeing as how the decision to apply the money to the activity in question is always mediated, often several times over, by the choices of others (e.g., legislators, government bureaucrats, private parties who are given the option of using the funds for various forms of health care, etc.). OK, but then Alan asks: What about if the tax itself is earmarked specifically for expenditure on the proscribed purpose? Good question -- I wonder how many religions would see that as raising a materially different problem of complicity by the feepayer or taxpayer than in the case of the general tax. Not many, I suspect, but perhaps I'm wrong. (I'd greatly welcome Catholic and other religious perspectives on this question -- it's relevant to something I'm working on.) But thankfully, we don't have to resolve that question here, since the cost to the employer of sponsoring a health insurance plan is not earmarked for contraception -- anything but. The total collective expenditure by the insurance company on employees' contraceptives will be a drop in the proverbial ocean, since contraceptives are but one, woefully insignificant and relatively inexpensive, covered service among countless others, many of which are very, very expensive. Indeed, I'd be surprised if the inclusion of contraceptive coverage affects the cost of sponsoring the insurance plan (the employer's share of the premium, which I don't believe would be compelled by federal law, in any event) at all -- not worth the dime, so to speak. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
RE: Contraceptives and gender discrimination
I can see why the costs to the religious claimant of avoiding the burden on religious liberty may be relevant to the substantiality of the burden. But I don't see why the costs to the government or third parties in avoiding the burden is relevant to the substantiality of the burden. The latter goes to infringement and the former goes to justification. Have I misunderstood the question? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, February 13, 2012 2:17 PM To: Crowley, Donald; Law Religion issues for Law Academics; conlawp...@lists.ucla.edu Subject: Re: Contraceptives and gender discrimination Having been accused (perhaps justly) of being a source of dispirit in my earlier posts (about religious institutions' ability to switch to co-religionist hiring, and about measuring the sincerity of objections by for-profit employers), I will say this -- the law of religious liberty purports to have standards. These are not supposed to be seat of the pants, what feels right to someone standards -- whether under the Free Exercise Clause, or under RFRA, they are supposed to be rigorous, and to be equally respectful of all faiths and all claims. So if RFRA requires a showing of a substantial burden on religious exercise, we are entitled to interrogate re: the question of what constitutes such a burden, and to be prepared to analyze the answer from those who oppose contraception in precisely the same way we would analyze the answer from those who oppose equal employment rights for women, or payment of minimum wages. And the question of the costs of avoiding the burden seems relevant to its substantiality. Am I wrong about that? Why? ___ 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: Hosanna-Tabor
I have to respectfully disagree with Chip on this point. The concerns about unacceptably burdening non-beneficiaries that justify restricting legislative accommodations don't disappear when the accommodation is constitutionally mandated. Courts commonly take these concerns into account in engaging in definitional balancing to determine the scope of rights. The ministerial exception is more complicated, as Chip notes, because it is justified in part by Establishment Clause concerns. Thus, under my argument, the same constitutional provision would both justify a ministerial exception as well as suggest limits as to its scope. That may be uncommon, but it is hardly unprecedented. Religious liberty (free exercise) interests may fall on both sides of a line and both support an accommodation as well as support limits on its scope. The same is true for the Establishment Clause (which, for example, promotes both religious liberty and religious equality values which are sometimes in conflict.) It is also true that the Court does not engage in explicit interest balancing in Establishment clauses in the sense that it does not apply conventional standards of review. But it does engage in constitutional interest balancing when it determines the scope of Establishment Clause principles. Thus, for example, in determining the extent to which government may subsidize religious institutions, the Court was clearly concerned that some restrictions on government support would unreasonably burden religious institutions by denying them assess to generally available benefits. I don't believe that Establishment clause line drawing is devoid of judicial attention to the consequences of the Court's decisions. Chip is correct that the Court does not focus on the cost to third parties in the hosanna-Tabor opinion. It does in the last paragraph, however, note the importance of employment discrimination laws, the interest of religious groups in choosing who will preach their beliefs, and its conclusion that the First Amendment has struck the balance for us. I do not read that language to suggest that the Court will ignore other constitutional concerns or important state interests in determining that balance in future cases that set the contours of the ministerial exception. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, January 13, 2012 11:38 AM To: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor Alan Brownstein writes that there is arguably a constitutional check on an excessively broad understanding of the [ministerial] exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception. But the cases to which Alan refers are about permissive accommodations (e.g., Caldor, Cutter, Zorach), which are themselves challenged as violations of the Establishment Clause. The ministerial exception, the Court says, itself rests in part on the Establishment Clause, and is mandatory, not permissive. If the Court had repudiated the exception, and a legislature had then reinstated it as a permissive accommodation, then the concern for non-beneficiaries would of course come into play. What's different about the context of the ministerial exception is that it involves an Establishment Clause-driven benefit (not a detriment, like a funding limitation) to religious institutions (with consequent risk of harm to others). But the mandatory quality of the exception undercuts Alan's point. No one on the Court suggested any balancing of the potential social disutility (which the government pressed as an argument) of the exception -- including harm to third parties, not just the employee-plaintiff. This is one of the reasons why the Court's unanimity is so stark and surprising, and this is also a reason why the Establishment Clause grounding is so important -- we do not have any doctrine of explicit interest-balancing in Establishment Clauses. And drawing the line re: who is a ministerial employee will have nothing to do with the scope of non-beneficiary interests -- everything about the Court's opinion suggests that Ms. Perich would have been found to be a ministerial employee even if she had been fired for reporting to the police about physical abuse of children at the school. Chip On Fri, Jan 13, 2012 at 11:54 AM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: Most constitutionally protected liberties are a zero sum game in Marci's sense. They impose a cost on the general public or particular third parties by preventing laws that often protect or benefit people from being fully implemented. There is no free lunch and rights are expensive political
RE: Hosanna-Tabor
Most constitutionally protected liberties are a zero sum game in Marci's sense. They impose a cost on the general public or particular third parties by preventing laws that often protect or benefit people from being fully implemented. There is no free lunch and rights are expensive political goods. But Marci us clearly correct that their is a cost to the ministerial exception and the broader it is defined the greater that cost will be. Moreover, their is arguably a constitutional check on an excessively broad understanding of the exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception. Reasonable people may disagree on where that line should be drawn and how that balance should be struck. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilto...@aol.com] Sent: Friday, January 13, 2012 6:52 AM To: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor I have no doubt whatsoever that Doug is sincere when he talks about his commitment to civil liberties more generally, but Hosanna-Tabor is the clearest case to date showing that religious liberty is a zero sum game. For increases in the rights of religious organizations, there are concomitant losses for the victims of the organizations' acts. The victims of disability, alienage, race, and gender discrimination are now likely incapable of vindicating their civil rights if they are clergy, or ministers, or according to some on our list, lay teachers in parochial schools. That is a large quantum loss of civil rights on any scale. I suppose those taking Doug's view believe that the loss is justified. Justification, however, does not obviate the fact of the loss. I can assure you that Petruska, Perich, and Rweyemamu do not view this decision as a vindication for civil rights. With respect to Smith, given the Court's own statements about Smith in Hosanna-Tabor and O Centro, it is entrenched at the Court. Marci ___ 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: Supreme Court sides with church on decision to fire employee on religious grounds
No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives the government control over the religious institution's core religious hiring decisions -- exactly what the ministerial exception is intended to prohibit. I think that these positions, because of their status and function, should not be funded by government whether the religious institution exercises the full extent of the authority it has under the ministerial exception or not. Alan ___ 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: Supreme Court sides with church on decision to fire employee on religious grounds
Rick, As to lay teachers at religious schools, the Court said, We express no view on whether someone with Perich's duties would be covered by the ministerial exception in the absence of the other considerations we have discussed. I thought that left open the issue of lay teachers at religious schools. Have I missed something here? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Wednesday, January 11, 2012 11:34 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Dear Marci, I guess not, but I think people usually think of clergy as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of ministers (including, of course, many lay teachers at parochial schools, who are not usually referred to as clergy.). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ___ 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: Supreme Court sides with church on decision to fire employee on religious grounds
Tom, I have long since given up trying to predict how Supreme Court justices will decide future cases (or to assume that there will be logical consistency or even intellectual integrity in all opinions.) But Justice Roberts clearly and repeatedly emphasizes the title, status, and acknowledged role of minister or clergy as significant factors in reaching his decision in this case. Why are you so confident that all of this language in the opinion is superflous? I agree that Alito and Kagan's concurrence provides more support for including some lay teachers in the exception. But even they say What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. The words important role and a leader arguably mean something different than some role and a participant. Finally, of course, there is the question of how the understanding of who qualifies for the ministerial exception relates to the question of what positions the government can fund in religious institutions. Can the government fund the salary of teachers who play an important role as an instrument of their church's religious message and as a leader in its worship activities? If the answer to that question is Yes and it is also true that such teachers are enough like clergy in their religious functions to be included in the ministerial exception, would it follow that government can also fund the salary of clergy? Is it constitutionally permissible for the government to refuse to fund teaching positions at a religious school which refuses to hire African-Americans, women, and the disabled as teachers? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Wednesday, January 11, 2012 7:47 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or commissioned status isn't crucial, that the criterion is “positions of substantial religious importance”—including those “teaching and conveying the tenets of the faith to the next generation”--and that the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. I can see many lay teachers in seriously religious schools satisfying such a test. Kagan’s agreement with that standard is quite significant, as is her joining the Alito concurrence overall. Tom - ___ 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: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms physical acts and internal church governance. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was compelling enough and whether the law was really necessary to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, January 11, 2012 8:42 AM To: 'Eric J Segall'; 'Con
RE: Supreme Court sides with church on decision to fire employee on religious grounds
As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives the government control over the religious institution's core religious hiring decisions -- exactly what the ministerial exception is intended to prohibit. I think that these positions, because of their status and function, should not be funded by government whether the religious institution exercises the full extent of the authority it has under the ministerial exception or not. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Thursday, January 12, 2012 7:28 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I'm not predicting two more justices, let alone with any certainty, or talking about all lay teachers. I was only making the point that three justices adopted a broader standard than the majority, and the fact that one of them was Kagan is notable and makes the road to additional votes significantly easier than otherwise. My sense, from oral argument among other things, was that Roberts and Scalia would be easier fifth votes than Kennedy to go further than these facts. On your second point, in many religious schools, at least some lay teachers have a central role, not just some role, in communicating the religious message, as Lemon and many other cases have emphasized. Finally, I agree that funding complicates things. I assume that government has authority to refuse to fund positions where discriminatory selection criteria operate (although, as you know, I think religious-belief selection criteria are a different case concerning religious organizations). I wouldn't turn that authority into carte blanche for funding restrictions. Would you say the mere fact that some lay teachers at a school would be classified within the ministerial exception would justify excluding all students at that school from participating in a true private choice voucher program, or (at the college level) from receiving state scholarships? Would you say this even if the school had not been shown to discriminate but merely referred to such teachers as ministers? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ___ 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: Supreme Court sides with church on decision to fire employee on religious grounds
We disagree -- in part because I think it would be easy to draft a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to pay dues and in part because I think the Establishment Clause prohibits the government from taking over the financing of religion (even if it funds some secular institutions while doing so.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 2:15 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think that if the government decided to give a religion-neutral charitable donation voucher that congregants could give to their church, to the ACLU, to a private school (secular or religious), or anyone else, that would be just as constitutional as the religion-neutral charitable donation matching-funds-voucher that is provided by the charitable donation tax deduction. (I agree that a religion-only voucher would be unconstitutional, see Texas Monthly v. Bullock, but I assumed that we were talking about religion-neutral programs.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 2:07 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives
RE: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms physical acts and internal church governance. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was compelling enough and whether the law was really necessary to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene ___ 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
