RE: Divisiveness
Dear colleagues, Like Eugene, I think there is (as always) a lot to what Alan says. Still, with respect to the specific question whether judicial predictions or observations of political divisiveness along religious lines should be used to identify those practices and policies that are unconstitutional -- i.e., that violate the Establishment Clause -- my view is that they should play no role. To say this is not to deny that one good reason for prohibiting -- for taking off the table of ordinary politics -- religious establishments is to avoid such divisiveness (although divisiveness can just be a word we use for disagreement, which seems unavoidable and not necessarily undesirable). In that article that Tom kindly mentioned, I tried to make the case that the Establishment Clause should not be seen as an invitation to the Court to play a managerial role with respect to the tone of our political discourse. Its contributions, instead, should be more indirect -- it enforces our political, politics-constraining disestablishment decision, but does not, in the course of enforcing that decision, use feared or observed divisiveness to distinguish what we disallowed from what we left allowable. Regards, Rick Richard W. Garnett Professor of Law Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, June 10, 2014 5:28 PM To: Law Religion issues for Law Academics Subject: RE: Divisiveness I think there’s much to what Alan says, but I think the relationship between national and local politics is complex. For instance, while choosing U.S. Supreme Court Justices is a matter for national politics, many groups that organize to influence that will also have local chapters and allies, which will get involved in state-level politics, and sometimes even in local politics; the anti-abortion movement is one example. Moreover, one may influence national politics by working through state or local-level politics, for instance by pressuring the state legislature, a city council, or a school board to take symbolic action protesting against federal constitutional decisions, for instance relating to religious symbolism and the like. My sense is that McCreary County indeed stemmed from local-level political activity aimed at symbolically protesting the Court’s Establishment Clause decisions. Again, this doesn’t tell us what the right answer is under the Establishment Clause, or under other clauses. Perhaps an answer that leads to some extra political mobilization along religious lines is nonetheless correct. But it does suggest that using the supposed divisiveness of a decision as a criterion for determining whether the decision is right, or determining what rule to adopt, would not be a good idea. Eugene Alan Brownstein writes: 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. ___ 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
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
Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create problems if the exemptions become wide enough to make it seem that religious folks have general privileges in society that secular folks do not. Cf. Affirmative action. I noted previously Scalia's citation (in during oral argument) of the overwhelming majority extending the VRA as evidence that the law was not carefully considered. During RFRA's passage and thereafter I focused on conservatives articulating the issue as one in which the Supreme Court disrespected religion, and those on the other side of the spectrum articulated the Smith decision as having disrespected constitutional rights. From discussion about Scalia with lawyers and non-lawyers, I cannot help thinking that a dislike of Scalia contributed to one side's support of RFRA. Jon On 2014-06-09 17:00, Steven Jamar wrote: “nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is 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
Re: Divisiveness
statute has experienced sympathetic interpretations and hostile interpretations, and it takes a lot of consistent appellate decisions to generate consistently sympathetic (or, not legitimate but nearly as likely) consistently hostile interpretations. And with RFRA, there just aren’t enough cases to generate such a body of appellate decisions.* Hobby Lobby* will the Court’s second opinion interpreting the Act in its 21 years of existence. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 09, 2014 12:59 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith
RE: Divisiveness
We've been over this before, of course, but as long as we're filling out the facts ... they are required to pay a $2,000-per-employee assessment if they drop health insurance, on top of being forced to choose an option that would either cause them significant competitive disadvantage or necessitate their raising wages. Even if we regard the wage increases and insurance premiums as a wash, the $2000/employee assessment is surely a government dissuasion. In response to Art's question, I'm assuming the IRS ruling simply means the employer cannot make up for dropping health insurance with tax-free payments to employees, but rather must increase taxable wages. That dramatizes why, in practical terms, increasing wages enough to offset the tax consequences may be a burdensome option indeed. But quite apart from that, it seems to me clear that the $2,000/employee assessment is a substantial burden (even denominated as a tax, it can affect and be designed to affect behavior, as NFIB v. Sebelius recognizes). - 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.edumailto: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 Arthur Spitzer [artspit...@gmail.com] Sent: Tuesday, June 10, 2014 12:33 PM To: Law Religion issues for Law Academics Subject: Re: Divisiveness Marty- Like you, I had thought that the law doesn't require HL to offer an employee health insurance plan at all, and that that was an escape hatch from its claimed religious problem. But from a recent news article it looks like employers no longer have that option, as a realistic matter: http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0 WASHINGTON — Many employers had thought they could shift health costs to the government by sending their employees to a health insurance exchange with a tax-free contribution of cash to help pay premiums, but the Obama administration has squelched the idea in a new ruling. Such arrangements do not satisfy the health care lawhttp://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier, the administration said, and employers may be subject to a tax penalty of $100 a day — or $36,500 a year — for each employee who goes into the individual marketplace. The ruling this month, by the Internal Revenue Servicehttp://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org, blocks any wholesale move by employers to dump employees into the exchanges. Am I missing something? Art Spitzer Warning: this message is subject to monitoring by the NSA. On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely
Re: Divisiveness
My understanding is that that IRS reg is not about the option of declining to offer a plan at all -- something that I'd think the statute guarantees and that the executive cannot change -- but instead about whether certain employer-employee arrangements for health care costs are excludable from income. The IRS Notice is here: http://www.irs.gov/pub/irs-drop/n-13-54.pdf For the life of me, I don't understand much of it, and would be grateful if any of you can translate it into English. On Tue, Jun 10, 2014 at 1:33 PM, Arthur Spitzer artspit...@gmail.com wrote: Marty- Like you, I had thought that the law doesn't require HL to offer an employee health insurance plan at all, and that that was an escape hatch from its claimed religious problem. But from a recent news article it looks like employers no longer have that option, as a realistic matter: http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0 WASHINGTON — Many employers had thought they could shift health costs to the government by sending their employees to a health insurance exchange with a tax-free contribution of cash to help pay premiums, but the Obama administration has squelched the idea in a new ruling. Such arrangements do not satisfy the health care law http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier, the administration said, and employers may be subject to a tax penalty of $100 a day — or $36,500 a year — for each employee who goes into the individual marketplace. The ruling this month, by the Internal Revenue Service http://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org, blocks any wholesale move by employers to dump employees into the exchanges. Am I missing something? Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the
Re: Divisiveness
I didn't say that the Greens are not potentially burden as company directors -- indeed, that's exactly what I've argued the case is about, rather than being about corporate free exercise or shareholder rights: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 2:17 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The just like wages characterization is highly contested and, at least if pushed to its logical conclusion, unsustainable. As to the shareholder issue, almost everyone these days owns property through trusts; anyone who has substantial assets and wants to avoid probate will do so. So it's not surprising that the Greens are not personally shareholders but rather trustees of the trusts that hold the shares (if I understand the facts correctly). Their rights are implicated as beneficial owners and as controlling persons, by way of their being trustees of their family trust and also officers and directors who personally take actions on behalf of the corporation. As for them not being required to provide the coverage they object to, because they can just leave their employees out in the Obamacare cold, and pay a fine, there is a strong argument that the law still creates a substantial burden. I think we've discussed that issue at length. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 10, 2014, at 10:09 AM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create
Re: Divisiveness
Well, as long as we're filling out the facts, it begs the question to assume that taking this option would cause any particular employer significant competitive disadvantage. Perhaps it would and perhaps it wouldn't. A recent report ( http://images.politico.com/global/2014/04/30/health_care_4-29_3.html) concludes that most employers would be much better off choosing this option. (I don't vouch for the specifics of the report -- but it surely demonstrates that one can't merely assume harm in these cases.) Hobby Lobby, et al., have not alleged remotely enough facts to demonstrate that it would make them worse off. Nor does it necessitate raising wages. Many employers would, of course, do so, since the health insurance plan was a substitute for wages in the first instance. But the law doesn't require that; there's certainly no way to know how much any particular employer would be compelled to wage wages; and, most importantly, as noted above, many if not most employers will be financially better off even if they do so. Tom also writes that the $2000/employee assessment is surely a government dissuasion. Well, compared to $0, sure it is. But the question is whether the law *as a whole* -- including the incentives to drop plans, such as the availability of government-subsidized plans -- not only dissuades a particular employer from dropping their plan, but actually imposes *substantial pressure* on an employer to offer the plan notwithstanding that to do so would allegedly violate the religious tenets of some individuals operating the company. And, as noted above, for many employers, the more economically profitable option may be to drop the health plan, even apart from any religious motivations. Accordingly, it would take some doing for HL to demonstrate that it is substantially pressured by the law to offer a plan with contraception insurance. On Tue, Jun 10, 2014 at 1:53 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: We've been over this before, of course, but as long as we're filling out the facts ... they are required to pay a $2,000-per-employee assessment if they drop health insurance, on top of being forced to choose an option that would either cause them significant competitive disadvantage or necessitate their raising wages. Even if we regard the wage increases and insurance premiums as a wash, the $2000/employee assessment is surely a government dissuasion. In response to Art's question, I'm assuming the IRS ruling simply means the employer cannot make up for dropping health insurance with tax-free payments to employees, but rather must increase taxable wages. That dramatizes why, in practical terms, increasing wages enough to offset the tax consequences may be a burdensome option indeed. But quite apart from that, it seems to me clear that the $2,000/employee assessment is a substantial burden (even denominated as a tax, it can affect and be designed to affect behavior, as NFIB v. Sebelius recognizes). - 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 Arthur Spitzer [ artspit...@gmail.com] *Sent:* Tuesday, June 10, 2014 12:33 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness Marty- Like you, I had thought that the law doesn't require HL to offer an employee health insurance plan at all, and that that was an escape hatch from its claimed religious problem. But from a recent news article it looks like employers no longer have that option, as a realistic matter: http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0 WASHINGTON — Many employers had thought they could shift health costs to the government by sending their employees to a health insurance exchange with a tax-free contribution of cash to help pay premiums, but the Obama administration has squelched the idea in a new ruling. Such arrangements do not satisfy the health care law http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier, the administration said, and employers may be subject to a tax penalty of $100 a day — or $36,500 a year — for each employee who goes into the individual marketplace. The ruling this month, by the Internal Revenue Service http://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html
Re: Divisiveness
But are they the beneficial owners of the shares as beneficiaries of the trust? Sent from my iPad On Jun 10, 2014, at 11:32 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: I didn't say that the Greens are not potentially burden as company directors -- indeed, that's exactly what I've argued the case is about, rather than being about corporate free exercise or shareholder rights: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 2:17 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: The just like wages characterization is highly contested and, at least if pushed to its logical conclusion, unsustainable. As to the shareholder issue, almost everyone these days owns property through trusts; anyone who has substantial assets and wants to avoid probate will do so. So it's not surprising that the Greens are not personally shareholders but rather trustees of the trusts that hold the shares (if I understand the facts correctly). Their rights are implicated as beneficial owners and as controlling persons, by way of their being trustees of their family trust and also officers and directors who personally take actions on behalf of the corporation. As for them not being required to provide the coverage they object to, because they can just leave their employees out in the Obamacare cold, and pay a fine, there is a strong argument that the law still creates a substantial burden. I think we've discussed that issue at length. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 10, 2014, at 10:09 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to
RE: Divisiveness
I think there's much to what Alan says, but I think the relationship between national and local politics is complex. For instance, while choosing U.S. Supreme Court Justices is a matter for national politics, many groups that organize to influence that will also have local chapters and allies, which will get involved in state-level politics, and sometimes even in local politics; the anti-abortion movement is one example. Moreover, one may influence national politics by working through state or local-level politics, for instance by pressuring the state legislature, a city council, or a school board to take symbolic action protesting against federal constitutional decisions, for instance relating to religious symbolism and the like. My sense is that McCreary County indeed stemmed from local-level political activity aimed at symbolically protesting the Court's Establishment Clause decisions. Again, this doesn't tell us what the right answer is under the Establishment Clause, or under other clauses. Perhaps an answer that leads to some extra political mobilization along religious lines is nonetheless correct. But it does suggest that using the supposed divisiveness of a decision as a criterion for determining whether the decision is right, or determining what rule to adopt, would not be a good idea. Eugene Alan Brownstein writes: 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. ___ 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
Even if the Greens are shareholders or beneficiaries of a trust that holds the shares, they aren’t buying anything. The funds used to purchase the insurance belong either to the corporation or its employees, depending on whether one is thinking about the moment before or after the employment contract (assuming that employment is at will, and subject to renegotiation at any moment, either view is plausible). Similarly, if the corporation fails to purchase the insurance, the corporation, not the Greens, will be required to pay an assessment to partially offset the exchange subsidies. The corporation’s money is not the Greens’ money. Corporate funds do not belong to shareholders, let alone beneficiaries of a trust that owns shares (if they are the trust’s beneficiaries). To act otherwise is a gross violation of ordinary corporate law – basically, theft. Shareholders have no claim to corporate assets unless the directors properly declare a dividend or dissolve the firm, and directors may take either of those actions only in furtherance of the corporation’s interests and after assuring that other, more senior, claimants to corporate assets (such as the employees and the IRS) have had their claims met. Surely Freedom of Religion does not extend to protecting religiously motivated expropriation. (And if it does, we can expect some interesting revelations in the near future.) The issue here is the rights of the corporation, not its directors or shareholders or beneficiaries of a trust holding shares. The human beings have too attenuated a claim on the corporation’s assets for their rights to be at issue when it spends, or is compelled to spend, money. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Tuesday, June 10, 2014 1:05 PM To: Law Religion issues for Law Academics Subject: Re: Divisiveness I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated
Re: Divisiveness
Can't stress this too often, apparently, since it doesn't seem to take hold: The alleged burden here is *not *about the expenditure of money; it's about the choices. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html On Tue, Jun 10, 2014 at 9:40 PM, Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Even if the Greens are shareholders or beneficiaries of a trust that holds the shares, they aren’t buying anything. The funds used to purchase the insurance belong either to the corporation or its employees, depending on whether one is thinking about the moment before or after the employment contract (assuming that employment is at will, and subject to renegotiation at any moment, either view is plausible). Similarly, if the corporation fails to purchase the insurance, the corporation, not the Greens, will be required to pay an assessment to partially offset the exchange subsidies. The corporation’s money is not the Greens’ money. Corporate funds do not belong to shareholders, let alone beneficiaries of a trust that owns shares (if they are the trust’s beneficiaries). To act otherwise is a gross violation of ordinary corporate law – basically, theft. Shareholders have no claim to corporate assets unless the directors properly declare a dividend or dissolve the firm, and directors may take either of those actions only in furtherance of the corporation’s interests and after assuring that other, more senior, claimants to corporate assets (such as the employees and the IRS) have had their claims met. Surely Freedom of Religion does not extend to protecting religiously motivated expropriation. (And if it does, we can expect some interesting revelations in the near future.) The issue here is the rights of the corporation, not its directors or shareholders or beneficiaries of a trust holding shares. The human beings have too attenuated a claim on the corporation’s assets for their rights to be at issue when it spends, or is compelled to spend, money. *From:* Marty Lederman [mailto:lederman.ma...@gmail.com] *Sent:* Tuesday, June 10, 2014 1:05 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. ___ 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
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
It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: 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
Re: Divisiveness
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. -- 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 -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu 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. -- 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 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
believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: 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. -- 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 -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu 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. -- 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
Re: Divisiveness
of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: 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. -- 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 -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send
RE: Divisiveness
Just to clarify, I see jurisdiction-by-jurisdiction RFRAs as implementing what I call a “common-law model”: as with common law defenses, privileges, and the like, they (1) leave courts with the first call on whether to create an exemption, but (2) allow legislatures to modify or repeal those exemptions if they disapprove of the courts’ decisions. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 09, 2014 9:59 AM To: Law Religion issues for Law Academics Subject: Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest
Re: Divisiveness
may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere. On Monday, June 9, 2014, Ira Lupu icl...@law.gwu.edu wrote: It is worth recalling that federal RFRA itself was anything but divisive. Au contraire. It passed with overwhelming support from both parties, and wide support among civil rights and civil liberties groups (with Hobby Lobby under advisement, some of these groups are now running from RFRA like it was the plague). The problem now is not divisiveness, per se. Like any controversial Supreme Court decision, some will hate it and others will love it. Inevitably, these folks will be divided by their disagreement. The problem is legitimacy. Free exercise standards, pre-Smith, were incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has proven in the lower courts to be equally plastic at every turn. What is a substantial burden, a compelling interest, a less restrictive means? Does RFRA restore U.S. v Lee, including its dictum about commercial actors accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? (See the Kagan -- Clement colloquy at oral argument about what RFRA restores.) The fussing over state RFRA's recently has reflected the same massive uncertainty over what they will be held to protect -- wedding vendor refusal to serve same sex couples? Employer refusal to provide spousal benefits to same sex spouses of employees? Let's just leave it to the courts (in these cases, state courts) is not reassuring to anyone. What I fear is that, whatever the outcome in Hobby Lobby, the losers will never believe that they lost based on any legal principle that will be applied consistently over time. Accordingly, they will believe that they lost only on culture war politics. Religious exemptions present many deep problems, including judicial appraisal of the religious significance of particular acts, but this problem of inconsistency (and therefore illegitimacy) over time seems particularly severe. On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene vol...@law.ucla.edu wrote: 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
RE: Divisiveness
It would take an empirical study of the cases under each statute to confirm Hillel’s intuition that the ADA cases are less more consistent than the RFRA cases. My intuition would be the opposite – that the cases are probably equally inconsistent at least in the beginning, and quite possibly permanently. And if the ADA cases have become more consistent over time, it is only because there are so many more of them. Both statutes leave individual applications to the courts because individual applications are far too varied for the legislature to deal with. And in the RFRA context, there is the additional problem that it is almost impossible for legislators to act on principal with respect to unpopular religions. Enacting a general standard, and not addressing individual applications, was treated as a matter of high principle in the discussions leading to RFRA. The fundamental problem for both RFRA and the ADA is not just that they inevitably leave a range of discretion to judges, but also that some judges believe in the policy of the statute, and some do not. Each statute attempts to address the special needs of a minority group, and each imposes some costs on others. Those who are irritated or outraged by one of these statutes are rarely the same people who are irritated or outraged by the other. Each statute has experienced sympathetic interpretations and hostile interpretations, and it takes a lot of consistent appellate decisions to generate consistently sympathetic (or, not legitimate but nearly as likely) consistently hostile interpretations. And with RFRA, there just aren’t enough cases to generate such a body of appellate decisions. Hobby Lobby will the Court’s second opinion interpreting the Act in its 21 years of existence. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 09, 2014 12:59 PM To: Law Religion issues for Law Academics Subject: Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it. But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA
Re: Divisiveness
The first SCOTUS opinion interpreting RFRA was O Centro (2006), which was unanimous, demanding in its statutory application, and a resounding defeat for the government. O Centro surprised quite a few of us. A student Note at 95 U. Va. L. Rev. 1281 (2009) argues that O Centro did little to affect the ways in which the Courts of Appeals construed RFRA. My own research of decisions suggests that little has changed since 2009. Contraceptive mandate cases aside, RFRA claimants rarely win. Of course, a weakly construed RFRA is not necessarily an inconsistently applied RFRA. But if Hobby Lobby generates strong constructions of RFRA, and lower courts go back to business as usual in RFRA cases not involving the Affordable Care Act, the inference of lawless application of RFRA over time will not be abated. On Mon, Jun 9, 2014 at 2:09 PM, Douglas Laycock dlayc...@virginia.edu wrote: It would take an empirical study of the cases under each statute to confirm Hillel’s intuition that the ADA cases are less more consistent than the RFRA cases. My intuition would be the opposite – that the cases are probably equally inconsistent at least in the beginning, and quite possibly permanently. And if the ADA cases have become more consistent over time, it is only because there are so many more of them. Both statutes leave individual applications to the courts because individual applications are far too varied for the legislature to deal with. And in the RFRA context, there is the additional problem that it is almost impossible for legislators to act on principal with respect to unpopular religions. Enacting a general standard, and not addressing individual applications, was treated as a matter of high principle in the discussions leading to RFRA. The fundamental problem for both RFRA and the ADA is not just that they inevitably leave a range of discretion to judges, but also that some judges believe in the policy of the statute, and some do not. Each statute attempts to address the special needs of a minority group, and each imposes some costs on others. Those who are irritated or outraged by one of these statutes are rarely the same people who are irritated or outraged by the other. Each statute has experienced sympathetic interpretations and hostile interpretations, and it takes a lot of consistent appellate decisions to generate consistently sympathetic (or, not legitimate but nearly as likely) consistently hostile interpretations. And with RFRA, there just aren’t enough cases to generate such a body of appellate decisions.* Hobby Lobby* will the Court’s second opinion interpreting the Act in its 21 years of existence. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 09, 2014 12:59 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond do good stuff when it comes to legislative exceptions, which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu icl...@law.gwu.edu wrote: It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so
RE: Divisiveness
I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is 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. ___ 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
“nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is 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. ___ 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. -- Prof. Steven D. Jamar
Re: Divisiveness
There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create problems if the exemptions become wide enough to make it seem that religious folks have general privileges in society that secular folks do not. Cf. Affirmative action. I noted previously Scalia's citation (in during oral argument) of the overwhelming majority extending the VRA as evidence that the law was not carefully considered. During RFRA's passage and thereafter I focused on conservatives articulating the issue as one in which the Supreme Court disrespected religion, and those on the other side of the spectrum articulated the Smith decision as having disrespected constitutional rights. From discussion about Scalia with lawyers and non-lawyers, I cannot help thinking that a dislike of Scalia contributed to one side's support of RFRA. Jon On 2014-06-09 17:00, Steven Jamar wrote: “nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is 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
RE: Divisiveness
Whoops, hit enter too early -- please disregard the Of course,. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, June 08, 2014 4:55 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: Divisiveness
I am not suggesting that divisiveness should be a rule of decision. Rather the purpose of the religion clauses is to allow people with strong, differing views live together in reasonable harmony. Thus in interpreting religious exemptions the Court needs to keep that principle in mind. Perhaps the Hobby Lobby decision itself is not important, but it will set a precedent. As far as I am concerned medical insurance provided by the employer is compensation and the employer should not be able to limit an employee's use of compensation. If the religious view that enabling someone else to get an abortion, or birth control that the employer, but not the medical profession, regards as abortion, then almost any arguably religious based claim must be upheld. That, I suggest, would give people defining their own religious beliefs an exemption to interfere with the rights of others. And a country where religious people, but not others, need not obey the general laws of the land is not the way to help the religious and the non-religious live together in reasonable peace. So what I am talking about is not the consequences of any one decision, but of a general interpretation of religious exemptions. I do realize that Congress has the right to enact federal law with exceptions, but as with conscientious objection, I do not think it is proper to treat non-religious people unequally. I have never seen an argument that the due process clause limits the religion clauses although I have seen equal protection reasoning use in free speech cases. Someone (maybe off-list) suggested that treating for-profit companies like non-profit groups and allowing them to put the cost of coverage on the insurance companies on the theory that there is no significant cost to the companies of covering contraception would solve the problem. But as I understand it, the Little Sisters of the Poor will not certify that they have a religious objection to covering abortion because that certification would facilitate their employees in obtaining such services. Finally, I realize that there are many other problems with other freedoms stemming from mandated health insurance coverage. For example, should employers be allowed to refuse to hire smokers, or people who eat junk food, or who drink the Big Gulp at fast food places? There was a case argued before the NY Court of Appeals last week about whether the Board of Health in New York City had the power to prohibit serving sodas in containers larger than a specified size. But I realize this goes beyond the list. To avoid an inconsistency argument in stating that employers should not control the use of compensation by employees based on the employers' religious views I mention this. I know there might be competing considerations in other areas. And I am not taking a position on them now. Jon On 2014-06-08 19:54, Volokh, Eugene wrote: 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
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: Divisiveness as an Establishment Clause test
Got it. And in addition to being speculative, maybe it's also incommensurable in the sense that the sort of division created by the no-religious-speech rule is different in kind than (and not easily measured against) the sort of division that would be created by allowing religious speech. But I get what you're saying. And maybe you're being merciful to let me escape the divisiveness fight with a draw. I guess I just think that it's sometimes easy to underestimate the problems caused by governmental religious speech. Perhaps Chief Justice Burger in Marsh did that; I doubt he could have possibly foreseen the various problems that having legislative prayer would create. So, like you, I guess I don't think divisiveness cuts only one way. And, in part for that reason, I too wouldn't make divisiveness the touchstone. Best, Chris __ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 vol...@law.ucla.edu 3/28/2009 9:52 AM I'm not suggesting that avoiding religious divisiveness should be the Establishment Clause test. Rather, I was arguing against Chip's suggestion that religious divisiveness ought to be the test, or perhaps ought to be at least a justification for the no-religious-speech rule (there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail.). If there are other arguments against certain government action, whether religious speech or coercion of religious practice, that's just fine -- in fact, I might well agree with some. But divisiveness strikes me both as (1) extremely speculative, and (2) often cutting in the opposite direction from the way it has been asserted by some courts and commentators. As to the empirical question of legislative prayer, my conjecture is that an entirely nonjudicialized legislative prayer system -- as opposed to the post-Marsh one, in which there are routine challenges based on the theological content of the prayer or the way the prayer program is administered -- would yield to fairly little friction, and outrage only among a relatively few people who are deeply engaged in the issue. And certainly we see that outside legislative prayer, there was a vast amount of outrage (and resulting divisiveness), in my view addressed not just at the courts but also at those religious (or nonreligious) groups that were seeking the change, with regard to the Pledge decision, the school prayer decisions, and other decisions. But I agree that this is indeed highly tenuous speculation, which sounds like good reason not to make divisiveness be the focus. Eugene Christopher Lund writes: Professor Volokh's empirical statement might be true. But what if it is also true about coercion? Perhaps division might be reduced if government could coerce religiously. I think the Innerchange litigation was far more controversial than the program; maybe prisons should be able to freely give prisoners benefits if they convert to Christianity. And allowing coercion may not mean jail time for anyone. The same political process that stops the more polarizing sort of endorsements will also check the harsher forms of governmental coercion. When Professor Volokh asked, What if Establishment Clause has proven more divisive than the problems it was supposed to solve? - what if that's true for the Establishment Clause wholesale, and not just the endorsement part of it? As for the empirics, the counterfactual that Professor Volokh suggests - what would our world be like if government could endorse religion? - is obviously hard to run with the endorsement rule still in place. But we've run it with legislative prayer. And I think it's been pretty bad for religious liberty: Believers kept out of the rotation because of their minority affiliations, listeners outraged by denominational prayer, speakers outraged by being told not to pray in denominational terms, elections decided on the basis of some legislative prayer issue. All of this, as Doug said, totally gratuitous to governance. Of course, maybe the situation would be worse if Marsh had been decided the other way. It's impossible to say for sure, but I think there is reason to doubt that claim. There would have been some hostility to the Supreme Court, of course. But it would have been directed mostly at the Court, right? And how much more additional hostility above Engel/Schempp/Stone? And wouldn't that hostility have tended to diminish in the years that followed? It's 25 years after Marsh, and in terms of division, I sense that legislative prayer is only just getting started. Best, Chris __ Christopher C.
